Vasquez v. Smith's Food & Drug Centers Incorporated

Filing 71

ORDER that the Defendant's Motion for Summary Judgment (Doc. 45 ) is GRANTED IN PART and DENIED IN PART. It is further ordered that the parties are required to file a Joint Proposed Pretrial Order on or before June 2, 2017 in contemplation of a jury trial. Signed by Senior Judge David C Bury on 4/4/2017. (see Order attached for additional details) (SIB)

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WO 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 Juanita O. Vasquez, 7 8 9 10 11 ) ) CV-14-2339-TUC-DCB ) Plaintiff, ) ) vs. ) ORDER ) Smith’s Food & Drug Centers, Inc., ) ) Defendant. ) 12 Before the Court is Defendant’s Motion for Summary Judgment. 13 (Doc. 45.) 14 SYNOPSIS 15 Plaintiff, a longtime employee of Defendant whose employment was 16 terminated, has brought a discrimination and retaliation action 17 against the Defendant under the Americans with Disabilities Act (ADA) 18 and Rehabilitation Act. Defendant has moved for summary judgment on 19 all Counts. 20 FACTUAL AND PROCEDURAL BACKGROUND 21 Plaintiff filed an Amended Complaint (Doc. 30) against Defendant 22 listing the following claims for relief: COUNT ONE, DISCRIMINATION IN 23 24 25 EMPLOYMENT: DISABILITY (29 U.S.C. §§ 794, 794a); COUNT TWO, RETALIATION FOR ASSERTION OF RIGHTS (29 U.S.C. § 794(a & d)); COUNT THREE, DISABILITY DISCRIMINATION IN 1 EMPLOYMENT: TERMINATION OF EMPLOYMENT (42 U.S.C. § 12112(a & b)) (ADA); and, COUNT FOUR, 1 RETALIATION FOR ASSERTION OF RIGHTS: TERMINATION OF EMPLOYMENT (42 2 U.S.C. § 12203(a))(Retaliation). Defendant is Smith’s Food & Drug 3 Centers, Inc. dba Fry’s Food Stores (Defendant). 4 Juanita O. Vasquez (Plaintiff) was a full time employee of the 5 Defendant. Her employment commenced on or about September 6, 1996, and 6 was terminated on or about January 7, 2014. 7 In 2009, Plaintiff submitted a request for accommodations for her 8 health condition, fibromyalgia, in accordance with Defendant’s 9 Accommodation Policy. In the Medical Accommodation Questionnaire 10 completed by Plaintiff’s physician, Plaintiff could not stand for more 11 than two (2) hours, could not lift more than ten (10) pounds, and was 12 13 unable 16 17 18 19 bend or stoop frequently. These were deemed lifetime restrictions by Plaintiff’s physician. 14 15 to On January 7, 2014, Plaintiff learned that her employment was being terminated for violations of store policies and rules. The specific reason for terminating Plaintiff was that she improperly used her override number. After benefits termination, with the Plaintiff Arizona filed Department of a claim Economic for unemployment Security (ADES). 20 Plaintiff alleged that she was subjected to adverse employment actions 21 because 22 retaliation for her repeated requests for reasonable accommodations. of discrimination based on her disability, as well as 23 On March 18, 2014, the ADES Appeal Tribunal conducted a hearing 24 on Plaintiff’s application for unemployment benefits. At the hearing, 25 Fry’s Store #58 Assistant Store Manager Mark Anthony Jaime (Jaime) 2 testified that there was no rule or policy which prohibited an 1 employee from using his/her own override number to clock themselves 2 into work. Based on this testimony, improperly the discharged Tribunal concluded that 3 Plaintiff was for willful or negligent charge of disability 4 misconduct connected with her employment. 5 On June 17, 2014, Plaintiff filed a 6 discrimination and retaliation with the Arizona Civil Rights Division 7 and the EEOC. Plaintiff filed her action in federal court in September 8 2014 and filed an Amended Complaint in October 2015 (Doc. 30). 9 Defendant’s Motion for Summary Judgment was filed on March 3, 2016. 10 Plaintiff filed a Response on September 19, 2016 and Defendant filed a 11 Reply on October 4, 2016. 12 argument. 13 14 15 16 17 18 The parties requested not to have oral STANDARD OF REVIEW To grant summary judgment, this court must find that the record clearly establishes that there exists "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment should issue, the facts and inferences from these facts are 19 viewed in the light most favorable to the non-moving party and the 20 burden is placed on the moving party to establish both that there is 21 no genuine issue of material fact and that he is entitled to judgment 22 as a matter of law. 23 Radio Corp., 475 U.S. 574 (1986). 24 this burden by showing there is an absence of evidence to support the 25 non-moving party's Matsushita Electric Industrial Co. v. Zenith case. The moving party may discharge Celotex 3 Corp. v. Catrett, 477 U.S. 317 (1986). The party opposing a motion for summary judgment cannot rest 1 upon his mere allegation or denials of his pleadings, but must set 2 forth specific facts showing there is a genuine issue for trial. 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). 4 The mere existence of some alleged factual dispute between the 5 parties will not defeat an otherwise properly supported motion for 6 summary judgment. The requirement is that there be no genuine issue 7 of material fact. Id. A material fact is any factual issue which 8 might affect the outcome of the case under the governing substantive 9 law. A material fact is genuine if the evidence is such that a 10 reasonable jury could return a verdict for the non-moving party. Id. 11 At the summary judgment stage, the trial judge's function is to 12 13 14 15 16 17 18 19 determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, the judge may grant summary judgment. Id. factual support are insufficient to Conclusory statements without defeat a motion for summary judgment. Nat'l Steel Corp. v. Golden Eagle Ins. Corp., 121 F.3d 496, 502 (9th Cir.1997). 20 DISCUSSION 21 Plaintiff worked as both a Courtesy Clerk and ASP during her 22 employment with Defendant at various stores from 1996 through 2014. 23 Both positions were subject to the Collective Bargaining Agreement 24 with the local union. Plaintiff was given an employee handbook when 25 she began her employment, which 4 contained Defendant’s anti- discrimination and anti-harassment policies. Plaintiff reviewed the 1 handbook and acknowledged that if she felt that she was being 2 discriminated against at work, she could go to Defendant’s HR. 3 In November 2006, Plaintiff was transferred to Store #119 after 4 she made a harassment complaint to HR against a store manager who used 5 profanity towards store employees at Store #20. Plaintiff felt her 6 complaint had been resolved by HR when she was transferred to Store 7 #119. 8 In 2009, Plaintiff notified Defendant that she had a disability, 9 fibromyalgia. Her fibromyalgia was first diagnosed by her primary 10 care physician, Gerald D. Roth, M.D., in 2009. Plaintiff was employed 11 at Store #119 at the time. 12 13 14 15 16 17 18 19 The Store Manager, Frank Orozco, after being informed of the diagnosis provided the accommodations requested so Plaintiff could continue to perform her work duties. In approximately October 2012, Manager Orozco retired and Jay Monteverde replaced him as the Store #119 Manager. In February 2013, Plaintiff requested three reasonable accommodations for her disability: (1) no standing for more than two hours at a time; (2) no lifting over ten pounds; and (3) no frequent bending over and stooping down. These were all accommodations per her physician’s advice. 20 Plaintiff sent documentation seeking these accommodations for her 21 disability to Human Resources (HR) Department in February 2013. In 22 April, 23 Tremoulis, Store Manager Monteverde and Plaintiff, but no action was 24 taken on the request for accommodations other than to direct Plaintiff 25 to go to Concentra for a medical evaluation, which she did. there was a meeting with 5 HR Lunde, Labor Representative Just before Plaintiff went on a vacation in September 2013, Store 1 Manager Monteverde told her to schedule herself for cashier training. 2 Plaintiff informed Manager Monteverde that she could not cashier 3 because of her disability and the standing restrictions. When she 4 returned from vacation, HR Lunde informed Plaintiff that she was being 5 transferred to Store #58 because allegedly Manager Monteverde did not 6 want to accommodate her. Plaintiff was told she was either going to 7 have to give up some of her work duties and work only part-time or 8 accept the transfer. She accepted the transfer. 9 On November 24, 2013, Plaintiff was suspended for three days 10 without pay for setting her own schedule. She objected to this 11 disciplinary action because: (1) she had been setting her own schedule 12 13 14 for approximately 16 years and had never been told that she could not, (2) no one had ever previously told her that as the ASP, she could not set her own schedule; and, (3) there was no company rule against it. 15 16 17 18 19 On January 2, 2014, Defendant suspended Plaintiff a second time for using her override number to override herself in at a different time than scheduled. She objected to this discipline because: (1) Defendant had given Plaintiff an override number to use when necessary, (2) no one ever previously told her that as the ASP, she 20 could not use her override number for herself to correct a time entry, 21 and, (3) there was no rule against it. On January 7, 2014 (five days 22 after 23 terminated from employment because of improper use of the override 24 number. In both incidents (November 2013 and January 2014), no wage 25 theft or dishonesty or false entry was committed, nothing was gained her second suspension), HR 6 informed Plaintiff that she was personally by Plaintiff, and the Defendant suffered no detriment. 1 During her last two years working for Defendant in 2012 and 2013, 2 Plaintiff received excellent performance evaluations. 3 On March 18, 2014, the ADES Appeal Tribunal conducted a hearing 4 and at the hearing a store manager testified that there was no rule or 5 policy which prohibited an employee from using his/her own override 6 number to clock themselves into work. The Tribunal decision concluded 7 that: “the claimant was discharged, but not for willful or negligent 8 misconduct connected with employment”. 9 10 A. Disparate Treatment/Retaliation for Seeking Accommodations: ADA, 42 U.S.C. 12112(a, b) 11 Title 12 13 14 15 16 17 18 VII prohibits employers from discriminating against an individual based on the existence of a disability. 42 U.S.C. § 12112. Here, the analysis is based on the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden shifting framework. the plaintiff first must establish a Under this framework, prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts nondiscriminatory to reason the for defendant its to articulate allegedly a legitimate, discriminatory conduct. 19 Metoyer v. Chassman, 504 F.3d 919, 931 n. 6 (9th Cir. 2007). If the 20 employer 21 presumption of discrimination drops out of the picture.” Id. (quoting 22 Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th 23 Cir.2006)). articulates a legitimate reason for its action, “the 24 The plaintiff may then offer direct or circumstantial evidence 25 that “the employer's proffered nondiscriminatory reason is merely a 7 pretext for discrimination.” Dominguez-Curry v. Nevada Transp. Dep't, 1 424 F.3d 1027, 1037 (9th Cir.2005). Plaintiffs can prove pretext 2 “indirectly, by showing that the employer’s proffered explanation is 3 unworthy of credence” or “directly, by showing that unlawful 4 discrimination more likely motivated the employer.” Fonseca v. Sysco 5 Food Services of Arizona, Inc., 374 F.3d 840, 849 (9th Cir. 2004) 6 (internal citations omitted). While the use of subjective factors is 7 not per se illegal, an employer’s use of subjective criteria is to be 8 considered by the trial court. Casillas v. United States Navy, 735 9 F.2d 338, 345 (9th Cir. 1984). As has been noted by the Ninth Circuit 10 in a number of different cases, the use of subjective criteria can 11 provide evidence of discrimination. See, O’Day v. McDonnell Douglas 12 Helicopter Co., 79 F.3d 756 (9th Cir. 1996). 13 1. Prima Facie Case 14 15 16 17 18 A prima facie case of retaliation is made by showing that: (1) she engaged in protected activity; (2) she suffered a materially adverse employment action; and (3) there exists a causal connection between the protected action. See Pardi v. activity Kaiser Found. and the Hosp., 389 adverse F.3d 840, employment 849 (9th 19 Cir.2004). 20 Plaintiff must put forth evidence that: (1) she is “disabled” within 21 the meaning of the statute; (2) she is a “qualified individual” (that 22 is, she is able to perform the essential functions of her job, with or 23 without reasonable accommodations); and (3) she suffered an adverse 24 employment action “because of” her disability. See, e.g., Hutton v. 25 Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir.2001). “At the For a prima facie case 8 of disability discrimination, summary judgment stage, the ‘requisite degree of proof necessary to 1 establish a prima facie case ... is minimal and does not even need to 2 rise to the level of a preponderance of the evidence.’ ” Lyons v. 3 England, 307 F.3d 1092, 1112 (9th Cir.2002) (quoting Wallis v. J.R. 4 Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)). 5 In 2009, Plaintiff was diagnosed with a recognized disability by 6 a medical professional. 1 For three years she was allowed to work and 7 continued to perform the essential functions of her job with the 8 accommodations. After a turnover in management, that changed. In 9 February 2013, Plaintiff formally requested accommodations from HR 10 based on her disability. She subsequently experienced the following 11 adverse 12 13 14 15 16 17 18 19 employment actions, which she believes were caused by a negative reaction to her disability and/or the need to accommodate the disability: (1) Defendant failed to engage in any interactive process in response to accommodations her February, 2013 for her disability;(2) request Plaintiff for was reasonable involuntarily transferred from Store #119 to Store #58 where the Store Manager did not want her because of her disability; (3)a first suspension in November, 2013; (4)a second suspension on January 2, 2014; and (5) termination of employment on January 7, 2014. 20 Plaintiff presents evidence, direct and/or circumstantial, that 21 suggests Defendant ignored her request for reasonable accommodations 22 and 23 accommodations, which is unlawful under the ADA and evidence of intent 24 to discriminate by not trying to accommodate in order to comply with 25 1 failed to engage in an interactive process to find such Plaintiff had been employed with Defendant since 1996 at this point. 9 the ADA. A negative reaction to a protected act by an employer is 1 evidence of a discriminatory or retaliatory animus. Waters v. 2 Churchill, 511 U.S. 661, 681-682 (1994); Bagley v. Bel-Aire Mechanical 3 Incorporated, 2016 WL 1393428 (9th Cir. 2016). Plaintiff complained 4 about her treatment to Defendant’s HR and managers. 5 Plaintiff sufficiently presents a prima facie case under the ADA 6 of discrimination and retaliation. 7 2. Legitimate Explanation 8 The Defendant’s legitimate explanation for the adverse employment 9 actions involved what they interpreted as Plaintiff’s dishonesty and 10 her ongoing failure to comply with procedures. 11 Both parties present conflicting evidence involving: whether or 12 13 14 15 16 17 18 19 not Plaintiff was improperly compensated for the overtime; whether Plaintiff was actually compensated at all for the overtime; whether Plaintiff was treated differently from similarly situated employees with regard to the overtime/override issue; and, whether Plaintiff was treated differently once she requested accommodation. Defendant’s legitimate explanation facts and credibility assessments. involves The issue of resolution of material Some of these issues overlap with Plaintiff’s claim and explanation of pretext, discussed below. 20 3. Pretext 21 The 22 administrative 23 years 24 given an override card as a part of her duties. In her capacity as an 25 administrative secretary to the store manager, h e r Plaintiff prior to was secretary employed by the as a Defendant courtesy and for approximately being discharged. Plaintiff explains 10 clerk that she duties 17 was were to make schedules, do payroll and complete daily time edits. This 1 card a l s o allows early entry into the store for employees. 2 2 The Plaintiff h a d a l w a y s used her override card to enter the 3 premises early in order to complete her work in a timely manner. 4 Plaintiff had used her override card in this manner since she began 5 working in administration. Throughout the Plaintiff's entire period 6 of employment with the company, no one had ever told her not to use 7 the override card on herself. Plaintiff never saw a rule prohibiting 8 the use of an override card on oneself. The Plaintiff was terminated 9 for using her override card to enter the building early. 10 Plaintiff alleges that she has direct evidence of pretext, as 11 follows: 12 13 14 15 16 17 18 19 When Plaintiff called in sick in December 2012, because of fibromyalgia symptoms, Manager Monteverde responded “If you don’t want to be here, quit”. HR Lunde told Plaintiff that her (then) store manager, Monteverde, did not want to accommodate her disability and she would have to transfer or switch to part-time work. HR Lunde told Kim Bernal that Plaintiff was a “problem” for Defendant because her disability had caused her to take medical leave from time to time and Defendants did not want to deal with the scheduling issues her disability created. Manager Galvan told Plaintiff that he did not want 20 her working in his store because of her disability and accommodation 21 requests. He said that his Assistant Store Manager Juan Gomez was very 22 adamant that he did not want Plaintiff there because of her disability 23 24 25 2 I n N o v e m b e r 2013, Plaintiff received a written warning for changing her schedule to accommodate her vacation dates. Since that time, the Plaintiff did not create her own schedule. 11 and that Gomez had told him that every time she was asked to do 1 something, she would lodge a claim with HR. 2 The timing of Plaintiff’s request for accommodations (February 3 2013) and the adverse employment actions (termination from employment 4 in January 2014) suggest that Plaintiff’s disability and request for 5 accommodations was a cause of the adverse employment actions. Thus, 6 circumstantial evidence Plaintiff a of pretext exists, particularly because 7 was long time employee and had been accommodated 8 previously for about three years. 9 Thus, Plaintiff has produced direct and circumstantial evidence 10 suggesting pretext for discrimination and/or retaliation for 11 requesting 12 13 14 15 20 21 22 require resolution of material trier of fact and are unresolvable by dispositive motion. B. Discrimination/Retaliation: Rehabilitation Act, 29 U.S.C. § § 794, 794(a) The Court does not find that the Rehabilitation Act is applicable to the facts at bar. Plaintiff cannot establish that Defendant is subject to Section 18 19 which questions of fact and credibility assessments that must be left to the 16 17 accommodations, 504 of the Act. Defendant does not receive any “federal financial assistance,” participation as in that phrase Medicare is or contemplated the Supplemental by the Act, Nutrition for its Assistance Program (SNAP). Specifically, Section 504 provides that “no otherwise qualified individual with a disability…shall, solely by reason of her 23 or his disability, be excluded from the participation in, be denied 24 the benefits of, or be subjected to discrimination under any program 25 or activity receiving Federal financial 12 assistance.” 29 U.S.C. § 794(a). “Program or activity” is defined in the Act to include “all of 1 the operations of… and entire corporation, partnership, or other 2 private organization, or an entire sole proprietorship” if that entity 3 as a whole receives federal financial assistance, or if the entity “is 4 principally engaged in the business of providing education, health 5 care, housing, social services, or parks and recreation.” 29 U.S.C. § 6 794(b)(3)(A). 7 Defendant’s participation in SNAP and Medicare are strictly for 8 the purpose of remaining competitive in a competitive industry. 9 Defendant does not receive any kind of federal financial assistance, 10 subsidy, or incentive for allowing customers to use SNAP benefits or 11 Medicare benefits at its locations. As such, Defendant does not fall 12 13 14 15 16 17 18 19 under the definition of “program or activity.” The Rehabilitation Act itself does not define “federal financial assistance.” In United States Department of Transportation v. Paralyzed Veterans of America, the Supreme Court held that only those entities that actually receive federal financial indirectly assistance “benefit” from are covered federal aid, by or § that 504; are entities that “inextricably intertwined" with actual recipients, are not on that basis covered. 477 U.S. 597, 607-610 (1986). Finally, Plaintiff did not work under a 20 “program or activity” that received the Medicare benefits. See S. Rep. 21 No. 100-64, at 4–19 (1988). 22 RULING 23 Counts One and Two of the Amended Complaint will be dismissed for 24 failure to state legally viable claims under the Rehabilitation Act. 25 Counts Three and Four of the Amended Complaint state viable causes of 13 action under the ADA for disability discrimination and retaliation. 1 There are material questions of fact and credibility issues that can 2 only be resolved by a jury and thus preclude resolution by dispositive 3 motion. 4 Accordingly, 5 IT IS ORDERED that the Defendant’s Motion for Summary Judgment 6 (Doc. 45) is GRANTED IN PART and DENIED IN PART. 7 The motion is DENIED as to Count Three (Disability Discrimination 8 in Employment) and Count Four (Retaliation for Assertion of Rights) of 9 the Amended Complaint; and, 10 The motion is GRANTED as to Count One (Discrimination in 11 Employment under Rehabilitation Act) and Count Two (Retaliation for 12 13 Assertion of Complaint. Rights under Rehabilitation Act) of the Amended A jury trial shall be conducted on Counts Three and Four. 14 IT IS FURTHER ORDERED that that the parties are required to file 15 16 17 18 19 20 a Joint Proposed Pretrial Order on or before June 2, 2017 in contemplation of a jury trial. The Pretrial Conference will be set upon receipt of the Joint Proposed Pretrial Order and a jury trial date will be set during the Pretrial Conference. Dated this 4th day of April, 2017. 21 22 Honorable David C. Bury United States District Judge 23 24 25 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15

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