Stillman v. Column 5 Consulting LLC et al

Filing 47

ORDER granting in part and denying in part 36 Defendant's Motion for Summary Judgment. The motion is granted as to plaintiff's failure to accommodate, unlawful discharge, and declaratory judgment claims. These claims are dismissed with prejudice. The motion is denied as to plaintiff's retaliation claim. Signed by Judge H Russel Holland on 04/19/16.(GAR)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

JEFFREY A. STILLMAN,

)
)
Plaintiff,
)
)
vs.
)
)
COLUMN5 CONSULTING, L.L.C., et. al,
)
)
Defendants. )
__________________________________________)

No. 3:14-cv-8207-HRH
(Prescott Division)

ORDER
Motion for Summary Judgment
Defendant moves for summary judgment.1 This motion is opposed.2 Oral argument
was requested and has been heard.
Facts
Plaintiff is Jeffrey A. Stillman. Defendant is Column5 Consulting, L.L.C.
Defendant is a consulting firm that assists clients with enterprise performance
management software implementation. The development and delivery of software training
to clients’ employees is one of the services provided by defendant.

1

Docket No. 36.

2

Docket No. 38.
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On August 2, 2010, plaintiff was hired by defendant to be an enterprise performance
management curriculum developer and trainer. Plaintiff was an “at will” employee.
Jennifer Harlan was plaintiff’s supervisor throughout his employment with defendant.
Plaintiff testified that “for the majority” of his time working for defendant, his relationship
with Harlan was “exceptional” and that “she enjoyed the fact that I have very IT technical
background.”3
In early 2012, plaintiff was directed to develop training materials for NBCU
employees in Los Angeles and New York. Plaintiff presented the Los Angeles training
sessions on April 9, 10, and 13, 2012.
On April 13, 2012, Richard Winter, an NBCU employee, advised Scott Kolka and
Adam Schulang, two of defendant’s employees, that plaintiff had
not do[ne] a particularly good job of presenting. Paul Mahal
and I had only intended to drop in for a couple minutes, but
ended up spending the entire day with the group – effectively,
taking over the class. Given that the upcoming N.Y. training
sessions will have a more demanding audience and Paul and
I will not be in attendance, I am very concerned. At a minimum, Adam needs to sit in on these sessions. Perhaps, he
should be doing the presenting.[4]

3

Deposition of Jeffrey Alan Stillman at 32:19-24, Exhibit C, Defendant Column5
Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
4

Email from Richard Winter to Scott Kolka and Adam Schulang, Exhibit F,
Defendant Column5 Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
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Harlan avers that she “did not learn of [this] email” until years later,5 even though Harlan
testified that she interacted with Kolka and Schulang “all the time.”6
On April 16, 2012, plaintiff reported to Jonathan Pause, another employee of
defendant’s, that the Los Angeles training “went very well. Everything went smooth....
The Tuesday group was more lively, asked a lot of good questions.”7 Plaintiff’s average
instructor performance rating from the Los Angeles NBCU training was 4.45/5 for the April
9-10 training and 4.02/5 for the April 13 training.8
Plaintiff also told Pause that
NBCU has an employee named Paul, who is very knowledgeable in BPC, and has ‘inserted’ himself in the training. I’m not
sure how he formed the opinion that I needed help but he took
it upon himself to pretty much take over the class about half
way through. I’ve conferred with Diane [NBCU New York
employee] and we’ve got the content nailed down for this
week and I don’t foresee any issues in delivering it, so having
anyone join us for the training is not required, as far as I’m

5

Affidavit of Jennifer Harlan at ¶ 4, Exhibit Q, Defendant Column5 Consulting,
L.L.C.’s Statement of Facts [etc.], Docket No. 37.
6

Deposition of Jennifer Harlan at 29:11-21, Exhibit I, Plaintiff’s Controverting
Statement of Facts [etc.], Docket No. 39.
7

Email from Jeff Stillman to Jonathan Pause, Exhibit E at 1, Defendant Column5
Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
8

Exhibits C and D, Plaintiff’s Controverting Statement of Facts [etc.], Docket No. 39.

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concerned.[9]
Plaintiff also emailed Harlan on April 16, 2012 and advised her that he
[h]ad a great discussion with Diane from NBCU-TVs. She
suggested opening with a showing what a BPC report looks
like and how it functions – to show the capabilities of BPC and
what it will do for them. She also mentioned that they liked
the reporting content that their admin, Paul, did at the end of
class. I let her know that I am prepared and happy to deliver
that content for them. She volunteered to rearrange some
slides in the presentation deck[10] to meet what she was
suggesting and we’ll meet and go over the changes at 5pm
Eastern.[11]
Harlan avers that plaintiff “did not explain that an NBCU employee essentially took
over the class....”12 Plaintiff disputes that Mahal “essentially took over the class.” Plaintiff
testified that Mahal
approached me before the first day of class, essentially assert-

9

Email from Jeff Stillman to Jonathan Pause, Exhibit E at 1, Defendant Column5
Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
10

Plaintiff had sent a working draft of the presentation deck to Smykowski in March,
at which time she advised that she had some “updates” that she wanted to add. Exhibit
J, Plaintiff’s Controverting Statement of Facts [etc.], Docket No. 39. Plaintiff emailed Harlan
to ask how to respond politely to Smykowski’s request, stating that “[a]t this point, I’ve
finished developing the PPT deck and user manual, so perhaps if she wants to update
them, it’s not an issue, unless I’m missing something.” Id.
11

Email from Jeff Stillman to Jennifer Harlan, Exhibit I, Defendant Column5
Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
12

Harlan Affidavit at ¶ 3, Exhibit Q, Defendant Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
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ing himself that, after I finished my presentation, he was going
to then present the BPC reporting suite or teach them about
BPC reporting. And from my perspective, that was not in the
agreed-upon scope of the curriculum and therefore it was not
my concern. What he wanted to do with his co-workers was
his business.[13]
For each of the three Los Angeles training days, plaintiff reported working eight
hours on his billing sheet; however, plaintiff only worked six hours on April 10, 2012.
Plaintiff testified that he left early because “[t]he content of my delivery was complete.”14
Plaintiff testified that he may have completed his billing sheet before he finished his travel
and that he could not revise his billing sheet once it was submitted.15 But, he testified that
he supposed that he could have contacted someone in accounting to make the adjustment.16
On April 17, 2012, Harlan learned from accounting that plaintiff had incurred a
change fee for his return airline ticket. Harlan spoke to plaintiff about the change fee and
he told her he left the training early. Harlan instructed plaintiff that in the future he should
not “leave the client site before 5pm unless class is completely over and no remaining
attendees are working with BPC” and that he should “not incur change fees for earlier

13

Stillman Deposition at 118:14-22, Exhibit A, Plaintiff’s Controverting Statement of
Facts [etc.], Docket No. 39.
14

Stillman Deposition at 101:10, Exhibit C, Defendant Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
15

Id. at 101:23-102:3.

16

Id. at 102:4-7.
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flights home....”17 Harlan avers, however, that plaintiff “did not explain that an NBCU
employee essentially took over the class when we discussed why he left the NBCU site
early.”18
Plaintiff presented the NBCU training in New York on April 18-19, 2012. Plaintiff’s
average instructor performance rating for this training was 4.02/5.19
In July 2012, defendant sent plaintiff to the Philippines to conduct training. On July
18, 2012, plaintiff reported to Harlan that “[t]he training is going very well.”20 On July 20,
2012, plaintiff advised Harlan that he was “thinking I should pick up the pace to keep [the
trainees] engaged” because of their experience level.21
On July 21, 2012, plaintiff experienced a panic attack. Plaintiff testified that this was
the first time he had ever experienced a panic attack.22 Plaintiff then had a Skype
conversation with Harlan during which he told her he was either suffering from anxiety

17

April 17, 2012 email from Jennifer Harlan to Jeff Stillman, Exhibit H, Defendant
Column5 Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
18

Harlan Affidavit at 3, Exhibit Q, Defendant Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
19

Exhibit E, Plaintiff’s Controverting Statement of Facts [etc.], Docket No. 39.

20

Email from Jeff Stillman to Jennifer Harlan, Exhibit K at 2, Defendant Column5
Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
21

Id. at 1.

22

Stillman Deposition at 23:1-8, Exhibit C, Defendant Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
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or depression and that he could not continue to conduct the training.23
Plaintiff had a prior history of depression. He testified that he was first diagnosed
with depression in the early 1990s.24 Plaintiff testified that he received counseling and took
Prozac for about year.25 He testified that he was able to continue functioning in his life
activities at that time.26 Plaintiff testified that he had a second episode of depression in 1994
and that he received counseling for about six months but was not put on any medication.27
Plaintiff testified that he was able to continue functioning in his life activities during this
depressive episode although “[i]t was actually noticed at work, but I was given a little bit
of consideration, having worked there for a while.”28 Plaintiff testified that he had a third
episode of depression in late 1999 and that he received counseling and was put on Zoloft
for about six months.29 Plaintiff testified that he was able to continue functioning in his life

23

Id. at 29:25-30:13.

24

Id. at 40:19-23.

25

Id. at 42:7-16.

26

Id. at 42:20-22.

27

Id. at 43:3-44:5.

28

Id. at 44:10-14.

29

Id. at 44:22-45:25.
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activities during this third depressive episode.30 During one of these three episodes of
depression, plaintiff endorsed suicide ideation.31 Plaintiff also testified that he was
diagnosed with seasonal affective disorder in 2010, that he received counseling and was
prescribed Zoloft, but that the disorder resolved in 2011 when he moved to Arizona.32
Plaintiff avers that when he is suffering from one or more of his disorders
(depression, anxiety, or panic disorder) he “cannot think clearly, concentrate, interact with
other people, sleep, eat, or travel.”33 Plaintiff avers that during an episode of depression,
he has “fatigue, uncontrollable crying, inability to think clearly or concentrate, and inability
to properly interact with other people.”34 Plaintiff avers that he has the following
symptoms during an anxiety or panic attack: “nausea, lack of appetite, insomnia, extreme
discomfort traveling, inability to think clearly or concentrate, and inability to properly
interact with other people.”35 He avers that these were the symptoms that “occurred

30

Id. at 46:6-14.

31

Stillman Deposition at 69:7-23, Exhibit A, Plaintiff’s Controverting Statement of
Facts [etc.], Docket No. 39.
32

Stillman Deposition at 47:2-48:18, Exhibit C, Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
33

Declaration of Jeffrey Stillman at 3-4, ¶ 15, Exhibit B, Plaintiff’s Controverting
Statement of Facts [etc.], Docket No. 39.
34

Id. at 4, ¶ 16.

35

Id. at ¶ 17.
-8-

during my Philippines training.”36
Because of the panic attack, plaintiff left the Philippines after completing the training
that was scheduled for July 23, 2012. Upon his return to Arizona, plaintiff sought medical
care on July 24, 2012. Plaintiff’s doctor diagnosed depression, anxiety and panic; started
him on medications; and recommended that he could return to work on July 30, 2012
without restrictions.37 Plaintiff emailed the doctor’s report to Harlan on July 24, 2012.38
Plaintiff also had a discussion with Harlan on July 24, 2012, during which time he “asked
her to accommodate me by not assigning me a job that required travel for about a month
because my medication takes four to six weeks for it to become fully effective.”39 Harlan
advised that the doctor’s report did not include any such restriction and that plaintiff
would need to provide medical certification supporting the travel restriction. Plaintiff also
testified that Harlan stated “that she didn’t know I suffered from depression when she
hired me.”40

36

Id.

37

Doctor’s Report of Work Status and Restrictions at 1, Exhibit L, Defendant
Column5 Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
38

Email from Jeff Stillman to Jennifer Harlan, Exhibit N, Defendant Column5
Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
39

Stillman Deposition at 60:9-13, Exhibit C, Defendant Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
40

Id. at 151:1-3.
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On July 30, 2012, David Den Boer, defendant’s founder, met with Smykowski in
New York. Den Boer testified that Smykowski told him that the April 2012 NBCU New
York training had been “very poor....”41 Den Boer instructed Harlan to call Smykowski to
follow up.
On August 2, 2012, plaintiff obtained medical certification supporting the travel
restriction but plaintiff decided to wait to give it to Harlan on August 7, 2012, when he had
a meeting scheduled with her.42 Plaintiff did not, however, meet with Harlan on August
7, 2012 because she rescheduled the meeting.
On August 7, 2012, Harlan spoke with Smykowski, who shared her concerns about
the April 2012 New York training.43 In a January, 9, 2013 email, Smykowski outlined the
concerns that she had shared with Harlan:
!

!

The Training was conducted by someone who had not
previously been involved in the implementation of the
project. The trainer had no hands-on knowledge of the
project, our business, how we would be using the
system, etc.
Prior to the training the Trainer sent me the materials he
would be using during the sessions. The deck was a

41

Deposition of David Den Boer at 26:25-27:1, Exhibit A, Defendant Column5
Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
42

Stillman Declaration at 2, ¶ 7, Exhibit B, Plaintiff’s Controverting Statement of Facts
[etc.], Docket No. 39.
43

Harlan Deposition at 60:8-14, Exhibit G, Defendant Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
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!

“canned” deck updated for the specifics of our business,
but would not have been clear or relevant enough to
use as it [was]. I reworked the deck and we used that
version.
The trainer was not effective during the actual training
sessions. He did not have command of the room and
while he may have had knowledge of the BPC system,
this did not come across to the audience. During the LA
training NBCU IT employees stepped in and took over
the training and in NYC I handled the majority of the
session. He was not a good fit to train our experienced
Finance team.[44]

Harlan avers that plaintiff “did not inform me that Ms. Smykowski made major
revisions to his ... training materials. I was not aware until August 2012 when Ms.
Smykowski informed me of her revisions. After speaking with Ms. Smykowski in August
2012 I concluded that [plaintiff] had purposefully underplayed the extent of her
modifications to keep that information from me as his supervisor.”45 Harlan also avers that
after she spoke with Smykowski, she “reviewed the evaluations provided to me from Mr.
Stillman that he claimed were created by the NBCU employee-attendees of the Los Angeles
and New York training sessions. I found the evaluations to be inconsistent with the

44

Email from Diane Smykowski to Jennifer Harlan, Exhibit J, Defendant Column5
Consulting, L.L.C.’s Statement of Facts [etc.], Docket No. 37.
45

Harlan Affidavit at ¶ 6, Exhibit Q, Defendant Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
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negative report given to me by Ms. Smykowski.”46
Stillman avers, however, that the evaluations he submitted were “completed by the
class participants. I did not fill out any of them.”47
Harlan terminated plaintiff on August 10, 2012. She avers that she “made the final
decision to terminate [plaintiff’s] employment” on August 9, 2012.48 Harlan avers that she
felt I had no choice but to terminate [plaintiff’s] employment in
August 2012 after learning for the first time of the extent of his
failure to develop and deliver adequate training to NBCU, both
because I believed he purposefully withheld that information
from me in April 2012 and because I was concerned he may
have fabricated the NBCU attendee evaluations as an additional means of hiding the adequacy of his training efforts.[49]
Harlan avers that she terminated plaintiff “because I lost confidence in his ability to
develop and deliver custom training that adequately met our client’s needs and because
I no longer trusted [him] to be honest and forthcoming.”50 Harlan avers that she did not
consider plaintiff’s mental health issues when she was deciding whether to terminate his

46

Id. at ¶ 8.

47

Stillman Declaration at 2, ¶ 5, Exhibit B, Plaintiff’s Controverting Statement of Facts
[etc.], Docket No. 39.
48

Harlan Affidavit at 2, ¶ 9, Exhibit Q, Defendant Column5 Consulting, L.L.C.’s
Statement of Facts [etc.], Docket No. 37.
49

Id. at ¶ 10.

50

Id. at ¶ 12.
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employment.51
After he was terminated, plaintiff drove to Illinois on August 11, 2012 to stay with
friends. After being there for several days, plaintiff had a panic attack and could not stop
crying. He voluntarily checked into the V.A. Medical Center on August 17, 2012, where
he was monitored for suicide ideation. He was discharged on August 22, 2012.
On October 24, 2014, plaintiff commenced this action. Plaintiff’s complaint contains
two counts. In Count I, plaintiff asserts three American with Disabilities (ADA) claims: 1)
a failure to accommodate, 2) unlawful termination, and 3) retaliation. In Count II, plaintiff
asserts a claim for declaratory relief that defendant violated the ADA by failing to provide
a reasonable accommodation, by unlawfully terminating him, and by retaliating against
him.
Defendant now moves for summary judgment on all of plaintiff’s claims.
Discussion
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
initial burden is on the moving party to show that there is an absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets
its initial burden, then the non-moving party must set forth specific facts showing that there

51

Id. at ¶ 11.
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is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
deciding a motion for summary judgment, the court views the evidence of the non-movant
in the light most favorable to that party, and all justifiable inferences are also to be drawn
in its favor. Id. at 255. “[T]he court’s ultimate inquiry is to determine whether the ‘specific
facts’ set forth by the nonmoving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury might return a verdict in its
favor based on that evidence.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n,
809 F.2d 626, 631 (9th Cir. 1987).
“The ADA forbids discrimination in employment on the basis of disability, requires
employers to reasonably accommodate their employees’ disabilities, and prohibits
retaliation against those who oppose acts prohibited by the ADA.” Stiefel v. Bechtel Corp.,
624 F.3d 1240, 1242 (9th Cir. 2010). Plaintiff alleges that defendant violated each of these
directives.
To establish a prima facie case for failure to accommodate under the ADA, plaintiff
must show that “(1) he is disabled within the meaning of the ADA; (2) he is a qualified
individual able to perform the essential functions of the job with reasonable accommodation; and (3) he suffered an adverse employment action because of his disability.” Allen
v. Pacific Bell, 348 F.3d 1113, 1114 (9th Cir. 2003). “An unlawful discharge claim under the
ADA is often, ‘from a practical standpoint,’ the same as a failure to accommodate claim

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because the consequence of the failure to accommodate is frequently an unlawful
termination.” Hoang v. Wells Fargo Bank, N.A., 724 F. Supp. 2d 1094, 1102 (D. Or. 2010)
(quoting Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1139 (9th Cir. 2001)). “The
Ninth Circuit analyzes ADA cases using the burden-shifting analysis from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Id. “Under McDonnell Douglas, once
plaintiff establishes a prima facie case, the burden shifts to defendant to provide a
non-discriminatory reason for the adverse employment action.” Id. at 1102-03. “If
defendant does so, plaintiff bears the burden of showing defendant’s reason was a pretext
for discrimination.” Id. at 1103.
Defendant first argues that plaintiff cannot establish that he is disabled within the
meaning of the ADA. To determine whether plaintiff’s condition constitutes a disability
under the ADA, the court must first “determine whether the plaintiff has an ADA
recognized ‘impairment.’” Wong v. Regents of Univ. of Calif., 410 F.3d 1052, 1069 (9th Cir.
2005). Second, the court considers whether “the life activities from which [plaintiff] was
impaired ... amounted to major life activities[.]” Gribben v. United Parcel Service, Inc., 528
F.3d 1166, 1169 (9th Cir. 2008). Third, the court considers whether plaintiff’s “impairment
substantially limited him from performing the identified major life activities.” Id.
Defendant argues that plaintiff’s mental impairments are not ADA recognized
impairments because they are temporary conditions. “It is well-established that temporary

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conditions generally are not considered disabilities.” Baker v. Roman Catholic Archdiocese
of San Diego, Case No. 14cv800 JM (JMA), 2014 WL 4244071, at *4 (S.D. Cal. Aug. 26, 2014);
see also Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) (holding that
a psychological condition that lasted for less than four months was a temporary condition
and not a disability under the ADA). Defendant argues that plaintiff had one panic attack,
which resulted in anxiety and depression, which lasted only a short period of time, as
evidenced by the fact that plaintiff was able to go back to work approximately one week
after first being treated for the panic attack and resulting impairments.
Defendant’s argument, however, ignores the fact that plaintiff suffers from more
than a panic disorder. Plaintiff also suffers from depression, and plaintiff’s depression is
not a temporary condition. Rather, it was episodic, and impairments that are episodic can
still be considered a disability under the ADA if the condition “would substantially limit
a major life activity when active.” 42 U.S.C. § 12102(4)(D). Thus, it is at least possible that
plaintiff’s depression could be considered an ADA recognized impairment.
But even if plaintiff had a mental impairment that was a recognized ADA
impairment, defendant argues that plaintiff is still not disabled for purposes of the ADA
because his depression, anxiety, and panic disorder did not substantially limit his major life
activities. Major life activities “include ‘caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,

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reading, concentrating, thinking, communicating, and working.’” Weaving v. City of
Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (quoting 42 U.S.C. § 12102(2)(A)).
Plaintiff argues that his declaration shows that his depression, anxiety and panic
disorder substantially limit some of his major life activities. In his declaration, plaintiff
avers that when he is suffering from one or more of his disorders, he “cannot think clearly,
concentrate, interact with other people, sleep, eat, or travel.”52 Plaintiff also points out that
the ADA regulations state that “it should be easily concluded ... that ... major depressive
disorder ... substantially limit[s] brain function.” 29 C.F.R. § 1630.2(j)(3)(iii). Thus, plaintiff
argues that there is at least a question of fact as to whether his mental impairments
substantially limit any of his major life activities.
But, plaintiff’s self-serving declaration must be rejected. “‘The general rule in the
Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his
prior deposition testimony.’” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (quoting
Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009)). At his deposition,
plaintiff testified that he was able to continue functioning in his life activities during his
three prior depressive episodes.

Plaintiff cannot contradict this testimony with a

declaration, and contrary to his contention, the questions asked at his deposition were not
ambiguous. Plaintiff was plainly asked if he was able to continue functioning in his life
52

Stillman Declaration at 3-4, ¶ 15, Exhibit B, Plaintiff’s Controverting Statement of
Facts [etc.], Docket No. 39.
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activities during his first three episodes of depression. Plaintiff answered that he was and
he is bound by the answer. The evidence also shows that after plaintiff’s 2012 panic attack
in the Philippines, plaintiff was able to complete a training session and his physician
released him to work without restriction only nine days after the panic attack. Thus, there
is no dispute that plaintiff’s 2012 mental health issue did not substantially limit any of his
major life activities. While the evidence does suggest that after his termination, plaintiff’s
depression limited some of his major life activities, evidence of plaintiff’s post-termination
condition is irrelevant. Deppe v. United Airlines, 217 F.3d 1262, 1265 (9th Cir. 2000).
In sum, plaintiff’s mental impairments did not substantially limit any of his major
life activities. Thus, plaintiff is not disabled for purposes of the ADA. Because plaintiff is
not disabled for purposes of the ADA, defendant is entitled to summary judgment on
plaintiff’s failure to accommodate and unlawful termination claims.
Plaintiff has also asserted a retaliation claim against defendant. “To establish a
prima facie case of retaliation under the ADA, an employee must show that: (1) he or she
engaged in a protected activity; (2) suffered an adverse employment action; and (3) there
was a causal link between the two.” Pardi v. Kaiser Foundation Hospitals, 389 F.3d 840,
849 (9th Cir. 2004). “If the employee establishes a prima facie case, the employee will avoid
summary judgment unless the employer offers legitimate reasons for the adverse
employment action, whereupon the burden shifts back to the employee to demonstrate a

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triable issue of fact as to whether such reasons are pretextual.“ Id. “A retaliation claim
does not necessarily depend on a plaintiff proving that he or she is disabled within the
meaning of the ADA.” Davis v. Tri-County Metropolitan Transp. Dist. of Oregon, 45 F.
Supp. 3d 1222, 1255 (D. Or. 2014).
There is no dispute that plaintiff engaged in protected activity when he requested
that he not be required to travel for 30 days because of his disability. There is also no
dispute that plaintiff’s termination was an adverse employment action. The issue as to
plaintiff’s prima facie case of retaliation is whether there is a causal link between his request
for an accommodation and his termination.
The Ninth Circuit has “recognized ... that, in some cases, causation can be inferred
from timing alone where an adverse employment action follows on the heels of protected
activity.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). Because
plaintiff was terminated approximately seventeen days after disclosing his disabilities to
his supervisor and requesting an accommodation, a reasonable jury could infer that he was
terminated because of his disabilities. Because of the timing in this case, there is at least a
question of fact as to causation.
Because plaintiff may be able to make out a prima facie of retaliation, the burden
shifts to defendant to articulate a legitimate reason for terminating plaintiff. Defendant has
met that burden here. Defendant has stated that plaintiff was terminated because of his

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performance issues and because his supervisor no longer trusted him.
Because defendant has articulated a legitimate nondiscriminatory reason for
terminating plaintiff, the burden shifts back to plaintiff to show pretext. To show pretext,
plaintiff must demonstrate that “‘either ... a discriminatory reason more likely motivated
the employer or ... that the employer’s proffered explanation is unworthy of credence.’”
Id. at 1063 (quoting Chuang v. Univ. of Calif. Davis, Bd. of Trustees, 225 F.3d 1115, 1123
(9th Cir. 2000)). “A plaintiff may show that an articulated nondiscriminatory reason for
discrimination is pretextual either directly or indirectly.” Norton v. PHC-Elko, Inc., 46 F.
Supp. 3d 1079, 1087 (D. Nev. 2014). “Direct evidence is evidence ‘which, if believed, proves
the fact of discriminatory animus without inference or presumption.’” Id. (quoting
Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)). “Indirect or circumstantial evidence requires ‘an additional inferential step to demonstrate discrimination.’” Id.
(quoting Coghlan, 413 F.3d at 1095). “Since direct evidence is so probative, ‘the plaintiff
need offer very little’ to raise a genuine issue of material fact.” Id. (quoting Coghlan, 413
F.3d at 1095). “On the other hand, when a plaintiff relies on indirect or circumstantial
evidence, ‘that evidence must be specific and substantial to defeat the employer’s motion
for summary judgment.’” Id. at 1087-88 (quoting Coghlan, 413 F.3d at 1095).
Plaintiff has come forward with specific and substantial evidence of pretext. First,
there is the temporal proximity between plaintiff asking for an accommodation on July 24,

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2012 and his termination seventeen days later. Temporal proximity may be insufficient by
itself to show pretext. Brooks v. Capistrano Unified School Dist., 1 F. Supp. 3d 1029, 1038
(C.D. Cal. 2014). But, here, plaintiff has other evidence of pretext beyond temporal
proximity. Although defendant insists that plaintiff was terminated because of he did a
poor job with the NBCU training, the class evaluations that plaintiff received from the
NCBU training suggest that his performance was acceptable.53 Also, the evidence is in
dispute as to what extent Smykowski revised the New York training materials, whether she
totally revised plaintiff’s training materials or whether she simply rearranged some slides.
In addition, Harlan’s comment that she did not know plaintiff suffered from depression
when she hired him is evidence of pretext. See Davis v. Team Elec. Co., 520 F.3d 1080, 1092
n.7 (9th Cir. 2008) (stray comments might not be direct evidence of pretext, but they could
be circumstantial evidence from which a jury could infer pretext). Based on all of this
evidence, a reasonable jury could conclude that defendant’s proffered reason for plaintiff’s
termination was pretext for discrimination. Thus, defendant is not entitled to summary
judgment on plaintiff’s retaliation claim.
Finally, as for plaintiff’s claim for declaratory relief in Count II, this claim is
53

Defendant argues that the evaluations are inadmissible hearsay because plaintiff
is offering them to prove the truth of the matter asserted. “At the summary judgment
stage, [the court] does not focus on the admissibility of the evidence’s form. [The court]
instead focus[es] on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032,
1036 (9th Cir. 2003). It is possible that the content of at least some of evaluation forms
could be admissible at trial.
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dismissed as duplicative. See Vang Chanthavong v. Aurora Loan Services, Inc., 448 B.R.
789, 803 (E.D. Cal. 2011) (quoting Fimbres v. Chapel Mortg. Corp., No. 09–cv–0886–IED,
2009 WL 4163332, at *5 (S.D. Cal. Nov. 20, 2009) (“‘federal court may decline to address a
claim for declaratory relief’ where the substantive claims ‘would resolve the issues raised
by the declaratory action’”).
Conclusion
Defendant’s motion for summary judgment54 is granted in part and denied in part.
The motion is granted as to plaintiff’s failure to accommodate, unlawful discharge, and
declaratory judgment claims. These claims are dismissed with prejudice. The motion is
denied as to plaintiff’s retaliation claim.
DATED at Anchorage, Alaska, this 19th day of April, 2016.
/s/ H. Russel Holland
United States District Judge

54

Docket No. 36.
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