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)

WO
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UNITED STATES DISTRICT COURT

5

DISTRICT OF ARIZONA

6

Juanita O. Vasquez,
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)
) 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
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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.

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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.

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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
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15
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17
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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.
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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.

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16
17
18
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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
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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

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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

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16
17
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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

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