Ballard v. Terros Incorporated

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Pamela Ballard, No. CV-19-05658-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Terros Incorporated, 13 Defendant. — 14 — 15 Pamela Ballard (“Ballard”) sued her former employer, Terros, Inc. (“Terros”), for 16 discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”) 17 and the Rehabilitation Act of 1973 (“Rehabilitation Act”). After Terros moved for 18 summary judgment (Doc. 29), Ballard’s attorney withdrew and Ballard thereafter failed to 19 file a response, prompting Terros to move for summary disposition (Doc. 36). For the 20 following reasons, Terros’s motion for summary disposition is denied but its motion for 21 summary judgment is granted. 22 BACKGROUND 23 I. Underlying Facts 24 The following facts are derived from the evidence attached to Terros’s motion for 25 summary judgment and other materials in the record. As discussed in more detail below, 26 because Ballard did not respond to Terros’s motion, these facts are undisputed. 27 Terros is a nonprofit healthcare provider specializing in “mental health, physical 28 health, addiction recovery, and wellness interventions.” (Doc. 29-1 at 2 ¶ 3.) Ballard 1 became a Terros employee in 2014 after Terros acquired her previous employer. (Id. at 2 2 ¶ 9.) Ballard worked as a “Practice Manager” at Terros’s Dunlap clinic until its closure in 3 late July 2018. (Id. at 2 ¶ 10; Doc. 29-2 at 27 ¶ 3.) Terros retained many of its employees 4 from the Dunlap location, transferring them to its 27th Avenue clinic. (Doc. 29-1 at 2 ¶ 5 11; Doc. 29-2 at 27 ¶ 4.) Because the 27th Avenue clinic already had a Practice Manager, 6 Terros did not transfer Ballard there. (Doc. 29-1 at 2 ¶ 12; Doc. 29-2 at 27 ¶ 4.) 7 Instead of terminating Ballard’s employment, Terros created a new “Floating 8 Practice Manager” position for her. (Doc. 29-1 at 2 ¶ 13; Doc. 29-2 at 27 ¶ 5.) As a 9 Floating Practice Manager, Ballard was responsible for filling in for Practice Managers at 10 various locations if they were sick, on vacation, or otherwise unavailable. (Doc. 29-1 at 3 11 ¶ 14.) Ballard’s pay remained the same in her new role. (Id. at 3 ¶ 15.) 12 In declarations, Ballard’s supervisor (Rosalia DeLeon) and Terros’s Senior Director 13 of Human Resources (Lorie Birk) both state that Ballard was informed before accepting 14 the Floating Practice Manager role that she would be expected to report to the Broadway 15 location when she was not covering shifts for absent Practice Managers at other clinics. 16 (Doc. 29-1 at 3 ¶ 19; Doc. 29-2 at 27 ¶ 6.) 17 In an email to a Terros administrator dated July 17, 2018, Ballard acknowledged 18 that she had been told “the need [for a Floating Practice Manager] is for Broadway” and 19 asked why she was the only Practice Manager being considered for the floating role. (Doc. 20 29-3 at 9.) The administrator responded that, because the Dunlap clinic was closing, the 21 Broadway location was Terros’s only clinic in need of additional help. (Id.) 22 On July 18, 2018, DeLeon emailed Birk to note that she had spoken with Ballard 23 about her new Floating Practice Manager role. (Doc. 29-1 at 6.) The email characterized 24 Ballard’s change in position as a “transition to Broadway” and noted that because there 25 was no need for a full-time Practice Manager at the Broadway location, “the expectation is 26 for her to cover for other [Practice Managers]” as needed. (Id.) 27 Shortly before starting in her new position, Ballard requested a three-week leave of 28 absence under the Family Medical Leave Act (“FMLA”). (Doc. 30 [lodged under seal].) 1 Terros granted this request. (Doc. 29-1 at 3 ¶ 17.) 2 On August 20, 2018, Ballard returned to work without restrictions. (Id. at 3-4 ¶¶ 18, 3 27; Doc. 29-2 at 27 ¶ 7.) Upon her return, Ballard was told that she would initially fill in 4 twice per week for the Practice Manager at Terros’s 51st Avenue location and would report 5 to the Broadway location the remaining three days per week. (Doc. 29-2 at 27 ¶ 8.) After 6 the 51st Avenue location’s Practice Manager returned from leave, Ballard would report to 7 Broadway every day until she was needed to cover a vacancy at another branch. (Id.) 8 On August 22, 2018, Ballard sent an email to DeLeon stating that she did not recall 9 being told that she would be required to report to the Broadway location on a daily basis. 10 (Doc. 29-3 at 7.) Ballard explained that she was under the impression she would be 11 “‘floating’ all over the agency,” rather than reporting to work consistently at the Broadway 12 location. (Id.) Ballard also mentioned that working from the Broadway location would 13 require her to drive “60 plus miles extra per day” and stated that such travel would be 14 difficult because of her personal and family obligations. (Id.) 15 Although Terros still needed Ballard to report to the Broadway location, Terros 16 attempted to make scheduling adjustments based on Ballard’s requests. In an August 24, 17 2018 email, DeLeon laid out a new “tentative schedule” based on Ballard’s input, but noted 18 that Ballard would still be required to stay late at least one night per week. (Doc. 29-3 at 19 13.) 20 In the scheduling discussions that occurred during her first week as Floating Practice 21 Manager, Ballard never mentioned being disabled. (Doc. 29-1 at 3-4 ¶¶ 23, 26-27; Doc. 22 29-2 at 17, 28 ¶¶ 12-16.) Ballard admitted during her deposition that she only discussed 23 “the actual scheduling” in her emails with her supervisor. (Doc. 29-2 at 17.) 24 On August 31, 2018, Ballard’s counsel drafted a letter, which was addressed to 25 Terros’s CEO, stating that Ballard believed she was “being treated differently and unfairly 26 based on her age, sex, and disability.” (Doc. 29-4 at 9-10.) The letter explained that Ballard 27 saw Terros’s offer of a Floating Practice Manager position as pressure for her to resign. 28 (Id.) The letter further stated that, because of her relative seniority, Ballard believed she 1 should have been offered one of the existing Practice Manager positions and that the 2 Floating Practice Manager role should have gone to someone more junior. (Id.) The letter 3 also stated that “Ms. Ballard is suffering from some conditions where she will be asking 4 for reasonable accommodation.” (Id. at 10.) The letter suggested that reasonable 5 accommodations might include “not work[ing] more than 8 hours a day . . . in a position 6 where commuting is minimal.” (Id.) 7 It is undisputed on this record that, even though the letter was addressed to Terros’s 8 CEO, Terros’s management never actually received the letter “until well after Ballard 9 resigned from her employment with Terros.” (Doc. 29-1 at 3 ¶¶ 24-25; Doc. 29-4 at 12, ¶¶ 10 3-4.) It is also undisputed on this record that “neither Ballard nor her counsel[] ever asked 11 anyone at Terros about the Letter and/or why no response was provided and/or whether 12 Terros even received the letter.” (Doc. 29-1 at 3 ¶ 25.) Had Ballard or her counsel notified 13 Terros that Ballard was interested in seeking a reasonable accommodation for a disability, 14 “she would have been given documentation for her physician to fill out and the parties 15 would have engaged in further discussions to determine if Ballard was eligible for a 16 reasonable accommodation and if so, the type of reasonable accommodation(s) that would 17 assist Ballard in performing the essential functions of her position.” (Doc. 29-1 at 4 ¶ 26.) 18 Ballard acknowledged during her deposition that the language of the August 31, 19 2018 letter merely noted that she would be requesting accommodations and that the letter 20 itself did not make such a request. (Doc. 29-2 at 11.) Ballard further conceded that she 21 never directly asked for the potential accommodations mentioned in the August 31, 2018 22 letter (because Terros did not respond to the letter). (Id. at 12.) 23 Ballard testified that she asked a different supervisor for a “reasonable schedule” on 24 one occasion in September 2018. (Id. at 12.) During that conversation, Ballard explained 25 that her schedule was stressful but did not suggest that she was disabled. (Id. at 11-12.) 26 On October 6, 2018, Ballard emailed DeLeon to express her interest in a Practice 27 Manager position at the Terros’s 27th Avenue branch that had recently become vacant. 28 (Id. at 18.) DeLeon instructed her to apply for the position in the same manner as external 1 applicants. (Id.) Ballard applied for this role but did not hear anything further about her 2 application until after she resigned from Terros. (Id. at 18-19.) 3 On January 2, 2019, Ballard sent an email to a Terros representative announcing her 4 “official resignation from TerrosHealth” effective that day. (Doc. 29-4 at 2.) 5 II. Procedural History 6 On November 13, 2018, Ballard filed a complaint with the Equal Employment 7 Opportunity Commission (“EEOC”) regarding Terros’s alleged failure to grant her 8 reasonable accommodations as mandated by the ADA and the Rehabilitation Act. (Doc. 1 9 ¶ 14; Doc. 12 ¶ 14.) 10 On December 10, 2018, the EEOC submitted its Notice of Charge of Discrimination 11 to Terros. (Doc. 29-4 at 14-17.) 12 On August 23, 2019, the EEOC issued a Right to Sue Letter to Ballard. (Doc. 1 ¶ 13 5; Doc. 12 ¶ 5.) 14 On November 20, 2019, Ballard, through counsel, initiated this action. (Doc. 1.) 15 The complaint asserts two claims: Count One is a claim for discrimination (id. ¶¶ 36-38) 16 and Count Two is a claim for retaliation (id. ¶¶ 39-42).1 17 On September 25, 2020, Terros filed the pending motion for summary judgment. 18 (Doc. 29.) 19 On November 5, 2020, Ballard’s counsel filed a motion to withdraw. (Doc. 32.) 20 Among other things, counsel confirmed that Ballard had “been provided with a Consent to 21 Withdraw but has not returned the document. She has provided an email terminating my 22 services.” (Id. ¶ 3.) Counsel also certified that Ballard had “been sent a notification in — 23 — 1 The complaint also includes a section entitled “Constructive Discharge.” (Doc. 1 24 ¶¶ 43-44.) The law is unsettled as to whether constructive discharge ever operates as a standalone claim. Compare Cogdell v. Murphy, 2020 WL 6822683 , *13 (D.D.C. 2020) 25 (“There is some dispute in this district over whether constructive discharge can be a standalone cause of action.”), with Moussouris v. Microsoft Corp., 2018 WL 3584701 , *19 26 n.20 (W.D. Wash. 2020) (“constructive discharge is not a standalone claim”), and Ibrahim v. Fidelity Brokerage Servs. LLC, 2020 WL 107104 , *4 n.5 (S.D.N.Y. 2020) (same). It is 27 unnecessary to wade into that debate here because it is clear from the complaint, which denominates the discrimination claim as “Count One” and the retaliation claim as “Count 28 Two” but does not include a “Count Three,” that Ballard was not alleging constructive discharge as a separate cause of action. 1 writing of the status of the case” and had specifically “been notified of the pendency of the 2 Motion for Summary Judgment.” (Id. ¶ 2.) 3 On November 24, 2020, after the 14-day deadline to file a response had expired 4 without any response by Ballard, the Court granted counsel’s motion to withdraw. (Doc. 5 34.) The Court also extended, to December 10, 2020, Ballard’s deadline to respond to the 6 pending summary judgment motion. (Id.) 7 On March 26, 2021—more than three months after this extended deadline had 8 expired without any response by Ballard—Terros filed the pending motion for summary 9 disposition. (Doc. 36.) Ballard did not respond to that motion, either. 10 DISCUSSION 11 I. Motion For Summary Disposition 12 As noted, Terros has moved for “summary disposition” of its motion for summary 13 judgment due to Ballard’s failure to respond. (Doc. 36.) According to Terros, “Plaintiff’s 14 failure to file a timely response should be deemed as Plaintiff’s consent to the granting of 15 the Motion” under LRCiv 7.2(i). (Id. at 1.) 16 This argument lacks merit. The advisory committee’s notes to Rule 56’s 2010 17 amendment explain that “summary judgment cannot be granted by default even if there is 18 a complete failure to respond to the motion.” This is because “under the summary 19 judgment standard, if the moving party fails to meet its initial burden of production, the 20 opposing party need not produce anything.” Finkle v. Ryan, 174 F. Supp. 3d 1174 , 1181 21 (D. Ariz. 2016). Thus, “a local rule permitting a district court to treat a lack of a response 22 as consent to granting a motion does not apply to summary judgment motions.” Id. at 1180 . 23 Instead, in the summary judgment context, “the opposing party’s failure to respond 24 to a fact asserted in” a summary judgment motion merely “permits a court to consider the 25 fact undisputed for purposes of the motion.” Heinemann v. Satterberg, 731 F.3d 914 , 917 26 (9th Cir. 2013) (internal quotation marks omitted). Rule 56 does not, in contrast, 27 “condon[e] summary judgment by default.” Id. 28 Accordingly, Terros’s motion for summary disposition is denied. 1 II. Motion For Summary Judgment 2 A. Legal Standard 3 “The court shall grant summary judgment if [a] movant shows that there is no 4 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 5 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 6 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 7 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 8 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 9 to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 10 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is 11 improper where divergent ultimate inferences may reasonably be drawn from the 12 undisputed facts.” Fresno Motors, 771 F.3d at 1125 . 13 A party moving for summary judgment “bears the initial responsibility of informing 14 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 15 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 16 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 17 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 18 production, the moving party must either produce evidence negating an essential element 19 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 20 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 21 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 , 1102 (9th Cir. 2000). “If . . . 22 [the] moving party carries its burden of production, the nonmoving party must produce 23 evidence to support its claim or defense.” Id. at 1103. 24 “If the nonmoving party fails to produce enough evidence to create a genuine issue 25 of material fact, the moving party wins the motion for summary judgment.” Id. There is 26 no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 27 Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not 28 significantly probative, summary judgment may be granted.” Id. at 249-50 . At the same 1 time, the evidence of the non-movant is “to be believed, and all justifiable inferences are 2 to be drawn in his favor.” Id. at 255 . “[I]n ruling on a motion for summary judgment, the 3 judge must view the evidence presented through the prism of the substantive evidentiary 4 burden.” Id. at 254 . Thus, “the trial judge’s summary judgment inquiry as to whether a 5 genuine issue exists will be whether the evidence presented is such that a jury applying that 6 evidentiary standard could reasonably find for either the plaintiff or the defendant.” Id. at 7 255. 8 B. Count One: Failure To Accommodate 9 In Count One of the complaint, Ballard alleges that Terros violated the ADA and 10 the Rehabilitation Act by failing to accommodate her scheduling requests and failing to 11 engage in the interactive process. (Doc. 1 ¶¶ 36-38.) To establish a prima facie case for 12 failure to accommodate under either statute, Ballard must show: (1) she is disabled within 13 the meaning of the ADA; (2) she is a qualified individual able to perform the essential 14 functions of the job with reasonable accommodation; and (3) she suffered an adverse 15 employment action because of her disability. Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th 16 Cir. 2003) (ADA); Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007) 17 (Rehabilitation Act), superseded by statute on other grounds as recognized in Nunies v. 18 HIE Holdings, Inc., 908 F.3d 428 (9th Cir. 2018). 19 In its motion, Terros seeks summary judgment on Count One because (1) Ballard 20 never provided notice of her alleged disability, and thus Terros could not have 21 discriminated against her based on that disability and had no obligation to engage in the 22 interactive process related to it; (2) Ballard never suffered an adverse action due to any real 23 or perceived disability; and (3) Ballard “would not have been able to perform the essential 24 functions of her position” if granted the accommodations discussed in her complaint. (Doc. 25 29 at 11-14.) As explained below, the Court agrees with Terros’s first argument and thus 26 does not reach the others. 27 Under the ADA and the Rehabilitation Act, employers have a legal duty to 28 reasonably accommodate the “known physical or mental limitations of an otherwise 1 qualified . . . employee.” 42 U.S.C. § 12112 (b)(5)(A). See also Wong v. Regents of Univ. 2 of Cal., 192 F.3d 807, 816-17 (9th Cir. 1999) (applying reasonable accommodation 3 standard under the ADA and the Rehabilitation Act). “Implicit in th[is] statutory dut[y] is 4 that the employer actually know of the alleged disability in question. Without such 5 knowledge, an employer cannot be faulted for failing to accommodate the disability.” 6 Ludovico v. Kaiser Permanente, 57 F. Supp. 3d 1176, 1198-99 (N.D. Cal. 2014). See also 7 Maes v. Henderson, 33 F. Supp. 2d 1281, 1289-90 (D. Nev. 1999) (“[A]n employer has no 8 duty to provide a reasonable accommodation [under the Rehabilitation Act] until it has 9 been made aware of the disability-related limitations of an employee.”); Tsuji v. 10 Kamehameha Schools, 154 F. Supp. 3d 964, 978 (D. Haw. 2015) (“[T]here is no obligation 11 to explore possible accommodations unless an employer knows about an employee’s 12 disability.”). “While knowledge of [a] disability can be inferred from the circumstances, 13 knowledge will only be imputed to the employer when the fact of disability is the only 14 reasonable interpretation of the known facts. Vague or conclusory statements revealing an 15 unspecified incapacity are not sufficient to put an employer on notice of its obligations 16 under . . . the ADA.” Doutherd v. Montesdeoca, 2020 WL 6043952 , *16 (E.D. Cal. 2020) 17 (internal quotation marks omitted). 18 On this record, no rational trier of fact could conclude that Terros knew Ballard was 19 disabled or believed she was disabled. Ballard acknowledged in her deposition that the 20 only mention of any health issues in connection with her various scheduling requests came 21 in the August 31, 2018 letter written by her counsel. (Doc. 29-2 at 10-13.) In contrast, 22 Ballard never mentioned being disabled or having any health-related objections to her 23 schedule when corresponding with Terros staff during her first week as Floating Practice 24 Manager or in subsequent in-person conversations. 25 As a preliminary matter, Terros’s declarations establish that relevant personnel 26 never received the August 31, 2018 letter and were not aware of its existence. Accordingly, 27 no rational trier of fact could conclude that the letter imparted notice to Terros of Ballard’s 28 alleged disability. Cf. Maes, 33 F. Supp. 2d at 1290 (“[T]he agency certainly could not 1 have been expected to provide accommodation to Plaintiff until it had been informed of his 2 mental disability and corresponding limitations on Plaintiff’s ability to work.”). 3 Further, even assuming the letter was sent and received, it merely asserts that 4 Ballard “is suffering from some conditions,” without specifying what those conditions are 5 or whether they constitute a disability. This vague and conclusory statement does not 6 establish that Ballard informed Terros of her alleged disability—the mere utterance of the 7 word “disability,” which appeared in the first paragraph of the August 31, 2018 letter, is 8 alone insufficient. See, e.g., Doutherd, 2020 WL 6043952 at *16 (“Vague or conclusory 9 statements revealing an unspecified incapacity are not sufficient . . . .”); Salser v. Clarke 10 Cty. Sch. Dist., 802 F. Supp. 2d 1339, 1355 (M.D. Ga. 2011) (plaintiff’s “vague 11 complaints” about her schedule being difficult did not trigger interactive process under the 12 ADA); Knighton v. Univ. of Tex. at Arlington, 2020 WL 1493554 , *6 (N.D. Tex. 2020) 13 (plaintiff’s “vague and conclusory assertions” that employer knew of her disability, in the 14 absence of a clear disclosure, were insufficient to support a prima facie case for failure to 15 accommodate under the ADA). On this record, no reasonable trier of fact could conclude 16 that Terros was aware of Ballard’s alleged disability or that Ballard made an effective 17 accommodation request. Cf. Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1153 (9th 18 Cir. 1997) (“Summers has not shown that there is a triable issue of fact as to whether 19 Teichert reasonably accommodated any disability he may have had. Summers did not ask 20 Teichert to allow him to drive a different vehicle after Summers’ painful experience driving 21 the water truck in May. After reporting to his supervisor the discomfort and pain that 22 resulted from driving the water truck, Summers did not contact Teichert at all.”).2 23 The only time Ballard provided Terros with any documentation of a medical issue 24 was when she requested and received FMLA leave before starting as Floating Practice — 25 — 26 2 Moreover, the letter merely informed Terros that Ballard “will be asking for reasonable accommodation” at some unspecified point in the future. (Doc. 29-4 at 10.) In 27 her deposition, Ballard acknowledged that the letter didn’t actually constitute an accommodation request and that she simply planned “[t]o discuss it with Terros.” (Doc. 28 29-2 at 11.) She also acknowledged that she never made a formal request for an 8-hourday accommodation because she never heard back about the letter. (Id. at 12.) 1 Manager. (Doc. 29-1 at 3 ¶ 17.) But at the end of her FMLA leave, Ballard’s physician 2 cleared her to return to work with no restrictions. (Id. at 3-4 ¶¶ 18, 27; Doc. 29-2 at 27 ¶ 3 7.) This episode did not put Terros on notice of Ballard’s alleged disability. Quite the 4 opposite—“[a] doctor’s release to work without restrictions supports a finding that a person 5 no longer suffers from a ‘disability.’” Garcia v. Salvation Army, 918 F.3d 997, 1010 (9th 6 Cir. 2019). See also Rivera v. FedEx Corp., 2013 WL 6672401 , *4 (N.D. Cal. 2013) 7 (plaintiff failed to demonstrate disability where cleared by doctor without restrictions); 8 Stevenson v. Abbott Labs., 639 F. App’x 473, 474 (9th Cir. 2016) (“[A]fter Plaintiff was 9 released to work, she was not disabled.”). 10 Accordingly, Terros is entitled to summary judgment on Count One. 11 C. Count Two: Retaliation Claim 12 In Count Two of the complaint, Ballard asserts a retaliation claim under the ADA 13 and Rehabilitation Act. (Doc. 1 ¶¶ 39-42.) 14 The Ninth Circuit applies the McDonnell Douglas burden-shifting framework to 15 ADA and Rehabilitation Act retaliation claims. Brown v. City of Tucson, 336 F.3d 1181 , 16 1186-87 (9th Cir. 2003); Brooks v. Capistrano Unified Sch. Dist., 1 F. Supp. 3d 1029 , 1035 17 (C.D. Cal. 2014) (“[T]he legal elements and the production of proof for a retaliation claim 18 under the Rehabilitation Act is the same as that used under the ADA[.]”). Under this 19 framework, “the plaintiff must first establish a prima facie case of retaliation.” Brooks, 1 20 F. Supp. 3d at 1036. To establish a prima facie case for retaliation, Ballard “must show 21 that: (1) [she] engaged in a protected activity; (2) suffered an adverse employment action; 22 and (3) there was a causal link between the two.” Pardi v. Kaiser Found. Hosps., 389 F.3d 23 840, 849 (9th Cir. 2004). 24 In its motion, Terros seeks summary judgment on Count Two “because 1) [Ballard] 25 did not request any reasonable accommodations to allow her to perform the essential 26 functions of her job; 2) she was never subjected to an adverse employment action; and 3) 27 there is no causal link between any alleged protected activity and an adverse employment 28 action.” (Doc. 29 at 14-15.) As explained below, the Court agrees. 1 1. Adverse Employment Action 2 For purposes of a retaliation claim under the ADA, “[a]n adverse employment action 3 is any action reasonably likely to deter employees from engaging in protected activity.” 4 Pardi, 389 F.3d at 850 (internal quotation marks omitted). 5 Ballard contends she was subjected to two adverse employment actions. First, she 6 asserts that Terros assigned her undesirable working hours. (Doc. 1 ¶ 12.) “Typically, a 7 change in schedule will not constitute an adverse employment action.” Peck v. City of 8 Tucson, 2021 WL 24578 , *6 (D. Ariz. 2021). See also Arakaki v. Brennan, 771 F. App’x 9 783, 784 (9th Cir. 2019) (“[W]e conclude that . . . Arakaki’s change in shift schedule . . . 10 did not constitute [an] adverse employment action[] that [was] reasonably likely to deter 11 employees from engaging in protected activity.”) (citation and internal quotation marks 12 omitted). Nor does denying an employee’s request for a schedule change necessarily 13 amount to an adverse employment action. Cilione v. Techfive, LLC, 2020 WL 1932275 , 14 *6 (D. Or. 2020) (“[S]ome courts have considered the denial of a schedule change 15 insufficient to constitute an adverse employment action.”); Hargrow v. Federal Exp. Corp., — 16 — 2006 WL 269958 , *4 (D. Ariz. 2006) (concluding that “Defendants’ failure to 17 accommodate his work scheduling requests . . . simply does not rise to the level of [an] 18 adverse employment action[]”). 19 Second, Ballard asserts that Terros engaged in adverse action in response to her 20 expression of interest in applying for a new internal job opening closer to her home. (Doc. 21 1 ¶ 24.) When she conveyed her interest in the role, she was instructed to “apply for the 22 position and follow the same process as external candidates.” (Id. ¶ 23.) 23 “[C]ourts disagree on whether failure to interview . . . constitutes adverse 24 employment action for the purposes of” a retaliation claim. Alozie v. Arizona Bd of 25 Regents, 431 F. Supp. 3d 1100 , 1115 (D. Ariz. 2020). But here, Ballard does not allege 26 that Terros failed to interview her for the internal job opening. In fact, she admits that, 27 shortly after she resigned from her Floating Practice Manager position, Terros extended 28 her an interview invitation for the open position she sought. (Doc. 29-2 at 18-19.) 1 Even taking into account the Ninth Circuit’s “expansive view of the types of action 2 that qualify as an adverse employment action,” Brooks, 1 F. Supp. 3d at 1036 , Ballard has 3 not met her prima facie burden of establishing an adverse employment action. Regarding 4 the reassignment, Terros has provided unrefuted testimony that this was done to facilitate 5 Ballard’s continued employment after her work location was shut down (and thus allowed 6 her to remain employed). The Court is not aware of any case holding that such conduct 7 constitutes an adverse employment action. As for the requirement that Ballard go through 8 ordinary recruitment channels when she applied for a new position, the Court is likewise 9 not aware of (and, needless to say, Ballard does not cite) any case stating that an employer’s 10 requirement that an employee apply for a new position in the same manner as other 11 applicants constitutes an adverse employment action. 12 For these reasons alone, Terros is entitled to summary judgment on Count Two. 13 2. Causal Connection With Protected Activity 14 Alternatively, even if the aforementioned matters could be deemed to qualify as 15 adverse actions, Count Two fails for the independent reason that no reasonable trier of fact 16 could find a causal connection between those adverse actions and Ballard’s alleged 17 instances of protected activity. 18 The complaint alleges that Ballard engaged in protected activity in two ways: (1) 19 when she requested reasonable accommodations; and (2) when she submitted a formal 20 EEOC complaint. (Doc. 1 ¶ 39.) 21 Ballard’s first theory is easily rejected. Requesting a reasonable accommodation 22 for a disability does, to be sure, qualify as protected activity. Gipaya v. Dep’t of the Air 23 Force, 345 F. Supp. 3d 1286, 1301 (D. Haw. 2018). But as discussed in Part II.B above, 24 Ballard never made a request for a reasonable accommodation—her scheduling requests, 25 without any mention of a disability, were insufficient to trigger the ADA’s interactive 26 process requirements. Merely asking for a schedule change is not a protected activity and 27 cannot serve as the basis for a retaliation claim. Tsuji, 154 F. Supp. 3d at 980 . 28 As for Ballard’s second theory, the filing of a formal EEOC complaint also qualifies 1 as protected activity. Pardi, 389 F.3d at 850 . Nevertheless, Ballard’s irregular schedule 2 and the requirement that she formally apply for a new job opening were not causally 3 connected with her filing of an EEOC complaint for the obvious reason that they took place 4 before she filed the complaint. 5 The Supreme Court has held that Title VII retaliation claims “must be proved 6 according to traditional principles of but-for causation.” Univ. of Tex. Sw. Med. Ctr. v. 7 Nassar, 570 U.S. 338, 360 (2013). “This requires proof that the unlawful retaliation would 8 not have occurred in the absence of the alleged wrongful action or actions of the employer.” — 9 — Id. The Ninth Circuit has adopted this standard in the context of ADA retaliation claims. 10 T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 472-73 (9th Cir. 11 2015).3 12 “When adverse employment decisions closely follow complaints of 13 discrimination,” such sequencing can support an inference of a causal connection. Pardi, — 14 — 389 F.3d at 850 . But here, the chronology is backwards. When a plaintiff’s only protected 15 activity comes after the alleged adverse employment actions, there can be no retaliation 16 claim. Scott v. Mabus, 618 F. App’x 897, 901 (9th Cir. 2015) (“Scott did not contact the 17 EEOC until after his termination, and therefore he did not engage in any protected 18 participation activity that could have caused any of the alleged adverse actions during his 19 employment.”). 20 Ballard filed her EEOC complaint on November 13, 2018. (Doc. 1 ¶ 14.) But her 21 scheduling requests were made (and denied) months earlier, during her first week as 22 Floating Practice Manager in August 2018. (Doc. 29-3 at 2-19.) Likewise, the exchange 23 in which Ballard expressed interest in an open position and was directed to submit a formal 24 application occurred in early October 2018. (Doc. 1 ¶ 23; Doc. 29-2 at 18.) Therefore, her 25 undesirable schedule and the requirement that she formally apply for the new opening 26 could not have been in retaliation for her filing of the EEOC complaint. — 27 — 28 3 The but-for causation test also applies to Rehabilitation Act retaliation claims. Brooks, 1. F. Supp. 3d at 1037. 1 Accordingly, 2 IT IS ORDERED that: 3 (1) Terros’s motion for summary judgment (Doc. 29) is granted. 4 (2) Terros’s motion for summary disposition (Doc. 36) is denied. 5 (3) The Clerk of Court is ordered to enter judgment accordingly and terminate this action. 7 Dated this 23rd day of April, 2021. — 8 — 9 fm ee” 10 f CC —— Dominic W. Lanza 11 United States District Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -15-