Piccarreta v. Harmony Hospice of Scottsdale LLC et al

Filing 43

ORDER finding as moot 41 Motion to Strike; denying 26 Motion for Summary Judgment. The Court will set a final pretrial conference by separate order. Signed by Judge David G Campbell on 11/21/2013.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patricia A. Piccarreta,
Plaintiff,

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ORDER

v.

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No. CV-12-00533-PHX-DGC

Harmony Hospice of Scottsdale LLC, et al.,

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Defendants.

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Plaintiff brought an action under the Americans with Disabilities Act (“ADA”) for

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failure to provide reasonable accommodations, retaliation, and constructive discharge.

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Doc. 1 at 1-2. Defendants have filed a motion for summary judgment. Doc. 26. The

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motion is fully briefed and no party has requested oral argument. For the following

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reasons, the Court will deny Defendants’ motion.

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I.

Background Facts.

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Defendants are hospice providers licensed by the Arizona Department of Health

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Services and the U.S. Social Security Administration. Plaintiff was hired by Harmony

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Hospice as a weekend coverage nurse and community liaison on October 28, 2009, and

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was employed through November 11, 2010. During her employment, Plaintiff informed

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Defendant of her disability, described in Plaintiff’s complaint as rheumatoid arthritis,

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bilateral lower extremity 4+ lymphatic edema, chronic severe pain, and hypo thyrodism.

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Defendant transferred Plaintiff to Legacy Hospice on February 15, 2010, to serve

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as a part time weekend on-call nurse at a rate of $750 per weekend plus $1.50 per hour

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for on-call time and mileage reimbursement. On August 5, 2010, Defendant suspended

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Plaintiff’s clinical weekend work and reduced her assignment to 20 hours per week.

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Later in August 2010, Defendants assigned Plaintiff transfer and admissions duties.

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Early in September 2010, Plaintiff was reassigned to patient admissions.

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On September 27, 2010, Plaintiff was offered a position as a personal assistant.

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This offer was witnessed by a social worker – Carol Martich – who stated that Plaintiff

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was given an opportunity to express any concerns and that she did not allege any failure

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to accommodate her disability. On September 29 and October 1, 2010, Plaintiff sent

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emails accepting the new position as a personal assistant. On October 3, 2010, Plaintiff

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informed management that she was looking for another part time job to supplement her

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income that had been reduced as a result of her decreased pay scale and hours worked.

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Staff reported to CEO Lizabeth Stephens that Plaintiff had been complaining that

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the hospice was a hostile working environment. On October 7, 2010, Ms. Stephens met

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with Plaintiff in the presence of Carol Martich to determine what Plaintiff considered to

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be hostile. Plaintiff resigned on November 16, 2010. Plaintiff began this action under

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the ADA on March 13, 2012.

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II.

Legal Standard.

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A.

Summary Judgment.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Only disputes over facts that might affect the

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outcome of the suit will preclude the entry of summary judgment, and the disputed

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evidence must be “such that a reasonable jury could return a verdict for the nonmoving

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party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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B.

Failure to Accommodate.

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To establish a prima facie case of disability discrimination based on failure to

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accommodate, a plaintiff must establish: (1) he is disabled within the meaning of the

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ADA, 42 U.S.C. § 12101, et seq., 29 C.F.R. § 1630.2(g); (2) he is qualified with a

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disability, 29 C.F.R. § 1630.2(m), 1630.3; and (3) the employer failed in its duty to make

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reasonable accommodation for the employee’s disability or he suffered an adverse

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employment action because of his disability, 29 C.F.R. § 1630.9. See Fuller v. Frank,

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Postmaster General, 916 F.2d 558, 561 (9th Cir. 1990); Bradley v. Harcourt, Brace &

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Co., 104 F.3d 267, 271 (9th Cir. 1996). If the Plaintiff establishes a prima facie case, the

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burden shifts to the employer to show: (1) the accommodation requested was

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unreasonable or would impose an undue hardship on the employer, 29 C.F.R.

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§ 1630.15(d); or (2) a legitimate, non-discriminatory reason prompted the employment

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action in question. See Smith v. Barton, 914 F.2d 1330, 1340 (9th Cir. 1990); Steckl v.

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Motorola, 703 F.2d 392, 393 (9th Cir. 1983). Once the employer offers an acceptable

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explanation for the employment action, the burden shifts back to the plaintiff to show that

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the reasons proffered are merely pretextual. Smith, 914 F.2d at 1340.

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C.

Retaliation.

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To establish a prima facie case of retaliation, a plaintiff must establish: (1) he

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engaged in protected activity; (2) the employer subjected him to adverse employment

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action as a result of the protected activity; and (3) there was a causal link between the

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protected activity and the employer’s action. Bergene v. Salt River Project Agric. Imp.

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and Power Dist., 272 F.3d 1136 (9th Cir. 2001). The same burden shifting analysis

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employed in failure to accommodate claims applies in retaliation claims. Payne v.

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Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997).

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III.

Analysis.

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A.

Timeliness of Plaintiff’s Response.

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Defendants request that the Court disregard the Plaintiff’s response to Defendants’

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motion for summary judgment because it was filed one business day after the filing

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deadline. Doc. 38 at 1-2. Although Plaintiff presents no valid excuse for failing to

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comply with the filing deadline, the Court will not grant Defendants’ request. The Rules

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of Civil Procedure are “to be liberally construed to effectuate the general purpose of

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seeing that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir.

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1983). The Court will consider Plaintiff’s response.

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B.

Evidentiary Objections.

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The Court may consider only evidence that would be admissible at trial in ruling

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on a motion for summary judgment. See Fed. R. Civ. P. 56(c)(2); Orr v. Bank of

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America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

Plaintiff challenges the

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admissibility of evidence proffered by Defendants in support of their motion for summary

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judgment. Defendants likewise challenge the admissibility of Plaintiff’s evidence.

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Defendants’ exhibit 1, 2, 5, 7, 8, 9, 13, 14, 15, 16, 22, and 27 are hearsay. Each

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exhibit is a writing offered to prove the truth of the matters it asserts. Defendants have

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not argued that these documents are excepted or excluded as non-hearsay under any of

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the Federal Rules of Evidence. Nor have they provided an affidavit showing that these

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documents would be admissible under Rule 803(6) or some other hearsay exception. As

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a result, these exhibits may not be considered on this motion for summary judgment.

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Defendants’ exhibits 17 and 23 are also hearsay. These written statements by

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Carol Martich are not signed under oath or made under penalty of perjury, and therefore

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do not qualify as affidavits or unsworn declarations under 28 U.S.C. § 1746. They are

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offered into evidence to prove the truth of the matters asserted. No argument has been

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made by Defendants to except or exclude these exhibits from the hearsay rule, and they

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cannot be considered on this motion for summary judgment.

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The affidavits of Marcia Villa (Doc. 26-2 at 22), Carol Martich (Doc. 26-3 at 38),

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and Edward Slattery, Jr. (Doc. 39-1 at 2) may be considered on a motion for summary

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judgment. Fed. R. Civ. P. 56(c)(2). The affidavits of Plaintiff (Doc. 34-1 at 2), Beverly

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Kosierowski (id. at 10), and Mary Carlson (id. at 14) may be considered as well. Id. The

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Court will also consider documents submitted by Plaintiff and Defendants to which no

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objection has been made.

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C.

Failure to Accommodate.

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Defendants and Plaintiff present dramatically different narratives of Plaintiff’s

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employment history and Defendants’ accommodation of Plaintiff’s disability. Plaintiff

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has provided admissible evidence to satisfy her prima facie case: (1) it is undisputed that

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Plaintiff suffered from rheumatoid arthritis; (2) it is undisputed that Defendants were

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aware of the disability when Plaintiff was hired and that both parties believed she was

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qualified for her position; and (3) Plaintiff has cited and submitted evidence that

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Defendants failed to accommodate her disability by refusing her requests to work from

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home on some occasions and by refusing to allow her to put her feet up at work

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(Docs. 26-2 at 14, 34-1 at 6, 11). Plaintiff has also produced evidence – specifically, the

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statement made by a supervisor that Plaintiff “had to go” – that Defendants’ explanation

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for adverse employment action against Plaintiff was pretextual. Evaluating the facts in

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the light most favorable to Plaintiff, there is a genuine issue of material fact that

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precludes summary judgment on the failure to accommodate claim.

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D.

Retaliation.

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Plaintiff argues that her protected activity consisted of requests to work at home

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and requests to elevate her feet when she was at work. Doc. 35 at 6. In short, she argues

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that her protected activity consisted of mere requests for accommodation. Protected

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activity generally involves actions necessary to “[p]ursu[e] one’s rights under the

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ADA[.]” See Pardi v. Kaiser Found. Hosps., 389 F.3d 840 (9th Cir. 2004); McAlindin v.

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Cnty. of San Diego, 192 F.3d 1226, 1238 (9th Cir. 1999) (stating that “vigorously

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asserting [one’s] rights” under the ADA constituted protected activity); Hashimoto v.

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Dalton, 118 F.3d 671, 679-80 (9th Cir. 1997) (determining that meeting with an Equal

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Employment Opportunity counselor to discuss sex and race discrimination constituted

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protected activity).

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perceived discrimination can constitute protected activity.

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Diagnostics, Inc., 298 Fed.Appx. 564, 565-66 (9th Cir. 2008). Many courts have also

Requests for accommodation combined with complaints about

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See Connor v. Quest

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held that requests for accommodation unaccompanied by complaints of discrimination

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constitute protected activity. See Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 35-

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36 (1st Cir. 2010) (“It is well established that requesting an accommodation, without

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filing a formal charge or engaging in other specific behaviors listed in § 12203(a), is

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nonetheless behavior protected from an employer’s retaliation.”) (quotation omitted);

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Kirkeberg v. Canadian Pacific Ry., 619 F.3d 898, 907-08 (8th Cir. 2010) (“[A]lthough it

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is questionable whether an employee who merely requests a reasonable accommodation

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fits within the literal language of the statute . . . we are bound . . . to conclude that making

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such a request is protected activity for purposes of 42 U.S.C. § 12203(a).”) (quotation

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omitted).

The requests identified by Plaintiff therefore constitute protected activity

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within the contemplation of the ADA.

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Defendant argues that Plaintiff cannot demonstrate adverse employment action.

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Doc. 38 at 8. To demonstrate such action, “a plaintiff must show that a reasonable

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employee would have found the challenged action materially adverse, which in this

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context means it well might have dissuaded a reasonable worker from making or

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supporting a charge of discrimination.” Burlington Northern & Santa Fe Ry. Co. v.

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White, 548 U.S. 53, 68 (2006) (quotation omitted). “Whether a particular reassignment is

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materially adverse depends upon the circumstances of the particular case, and should be

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judged from the perspective of a reasonable person in the plaintiff’s position, considering

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all the circumstances.” Id. at 71.1

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Plaintiff cites four separate employment actions that she claims were materially

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adverse. All four involved a transfer, and each effectively amounted to a demotion in pay

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and responsibilities. Doc. 35 at 6. Courts have found similar actions to be materially

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adverse.

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constituted adverse employment action); Brooks v. City of San Mateo, 229 F.3d 917 (9th

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Cir. 2000) (noting that dissemination of a negative employment reference, issuance of an

See White, 548 U.S. 53 (concluding that a change in work assignment

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Defendants argue that Plaintiff must demonstrate retaliatory motive as part of the
second prong. Doc. 38 at 8; Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). To
the extent Ray requires retaliatory motive, it has been overruled by White.
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underserved negative performance review, and refusal to consider for promotion

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constitute adverse employment actions). Defendants present evidence suggesting that the

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employment actions were motivated by Plaintiff’s faulty job performance, but Plaintiff

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has proffered evidence that Defendants’ justifications were pretextual.

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concludes that the parties’ evidence creates a genuine dispute of fact, and that a

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reasonable jury could find that the transfers amounted to adverse employment actions.

The Court

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Defendant argues that Plaintiff cannot demonstrate a causal link because

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“Defendants received no indication of Plaintiff’s conduct which would constitute

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protected activity until after the alleged adverse action.” Doc. 26 at 15. This argument

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relies on the faulty assumption that Plaintiff’s only protected activity involved her

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consultation with an lawyer.

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constitute protected activity, and Plaintiff has presented evidence that she was subjected

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to four adverse employment actions within a year after she engaged in such protected

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activity, Plaintiff has presented sufficient evidence of causation to survive summary

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judgment. See Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493,

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507 (9th Cir. 2000) (finding that retaliatory intent may be inferred when adverse

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employment decisions are taken within a reasonable period of time after a plaintiff has

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engaged in protected activity); Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859,

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869-70 (9th Cir. 1996) (holding that evidence based on timing can be sufficient to let the

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issue of retaliatory motive go to the jury, even in the face of alternative reasons proffered

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by the defendant).

Because Plaintiff’s requests for accommodation may

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E.

Constructive Discharge.

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“Under the constructive discharge doctrine, an employee’s reasonable decision to

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resign because of unendurable working conditions is assimilated to a formal discharge for

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remedial purposes.” Poland v. Chertoff, 494 F.3d 1174, 1184-85 (9th Cir. 2007). The

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doctrine requires the factfinder to conduct an objective inquiry and answer the question:

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“did working conditions become so intolerable that a reasonable person in the employee’s

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position would have felt compelled to resign?” Penn. State Police v. Suders, 542 U.S.

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129, 141 (2004).

A constructive discharge occurs when the working conditions

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deteriorate, as a result of discrimination, to the point that they become sufficiently

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extraordinary and egregious to overcome the normal motivation of a competent, diligent,

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and reasonable employee to remain on the job to earn a livelihood and to serve his

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employer. Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). The bar is set

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higher for a claim of constructive discharge because federal and state antidiscrimination

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policies are better served when the employee and employer address discrimination within

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their employment relationship rather than when the employee walks away and later

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litigates whether his employment situation was intolerable. Thorne v. City of El Segundo,

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802 F.2d 1131, 1134 (9th Cir. 1986); see also Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d

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490, 494 (8th Cir. 1996) (“An employee who quits without giving his employer a

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reasonable chance to work out a problem has not been constructively discharged.”).

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When the evidence is viewed in the light most favorable to Plaintiff, the Court

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concludes that a genuine issue of material fact exists on the claim of constructive

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discharge.

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Defendants to perform clinical and administrative duties. Over time, she was steadily

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demoted to increasingly menial tasks, her pay was reduced, and at least some of her

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requests for accommodations were denied.

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reduced from a full-time nurse and administrator to a part-time personal assistant to the

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very person who was responsible for her demotions. A jury must decide whether these

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working conditions were so intolerable that a reasonable person in Plaintiff’s position

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would have felt compelled to resign.

Plaintiff was an experienced nurse and administrator who was hired by

When Plaintiff resigned, she had been

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IT IS ORDERED:

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1.

Defendants’ motion for summary judgment (Doc. 26) is denied.

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2.

Plaintiff’s motion to strike (Doc. 41) is denied as moot.

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3.

The Court will set a final pretrial conference by separate order.

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Dated this 21st day of November, 2013.

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