Nadler v. Tucson, City of

1 WO [7] IN THE UNITED STATES DISTRICT COURT [8] FOR THE DISTRICT OF ARIZONA [10] Vonda Nadler, No. CV-20-00085-TUC-RM [11] Plaintiff, ORDER [12] v. [13] City of Tucson, et al., [14] Defendant. [16] Pending before the Court is Defendant City of Tucson’s Motion for Summary [17] Judgment. (Doc. 60.) Plaintiff filed a Response (Doc. 66) and Defendant replied (Doc. [18] 70). For the reasons set forth below, the Motion will be granted. [19] I. Summary Judgment Standard [20] A court must grant summary judgment “if the movant shows that there is no [21] genuine dispute as to any material fact and the movant is entitled to judgment as a matter [22] of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317 , 322-23 [23] (1986). The movant bears the initial responsibility of presenting the basis for its motion [24] and identifying those portions of the record, together with affidavits, if any, that it [25] believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 26 323. [27] If the movant fails to carry its initial burden of production, the nonmovant need [28] not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099 , 1102– 1 03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to 2 the nonmovant to demonstrate the existence of a factual dispute and to show (1) that the 3 fact in contention is material, i.e., a fact that might affect the outcome of the suit under 4 the governing law, and (2) that the dispute is genuine, i.e., the evidence is such that a 5 reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, 6 Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 7 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact 8 conclusively in its favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 , 288– 9 89 (1968); however, it must “come forward with specific facts showing that there is a 10 genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 11 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1). 12 At summary judgment, the Court’s function is not to weigh the evidence and 13 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 14 477 U.S. at 249. Pure questions of law, where there is no disputed issue of fact, are 15 appropriate for summary judgment. Schrader v. Idaho Dep’t of Health & Welfare, 768 16 F.2d 1107 , 1110 (9th Cir. 1985). “The inquiry performed is the threshold inquiry of 17 determining whether there is the need for a trial—whether, in other words, there are any 18 genuine factual issues that properly can be resolved only by a finder of fact because they 19 may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250 . “[T]his 20 standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 21 50(a), which is that the trial judge must direct a verdict if, under the governing law, there 22 can be but one reasonable conclusion as to the verdict.” Id. (internal citation omitted). In 23 its analysis, the Court must accept the nonmovant’s evidence and draw all inferences in 24 the nonmovant’s favor. Id. at 255 . The Court need consider only the cited materials, but it 25 may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). [28] 1 II. Factual Background 2 Plaintiff Vonda Nadler (“Plaintiff” or “Nadler”) is employed by Defendant City of 3 Tucson (“Defendant” or “the City”) as a Public Safety Dispatch Specialist II. (Doc. 61 ¶ 4 1.)1 In her position, Nadler answers calls and dispatches the appropriate response units to 5 police, fire, and medical 911 calls. (Id. ¶ 2.) Nadler completed the 18-month training for 6 this position in 2010. (Id. ¶ 3.) Nadler is a full-time, hourly employee and her schedule 7 follows what is known as a “3/4 schedule,” which is comprised of one week of three 128 hour shifts (36 hours total), followed by one week of four 12-hour shifts (48 hours total). 9 (Id. ¶¶ 5-6.) The 36-hour week is considered four hours short of the 40-hour requirement 10 for full time, while the 48-hour week is considered 40 hours at the regular hourly pay rate 11 plus 8 hours of overtime pay. (Id. ¶¶ 7-8.) An employee working this schedule, including 12 Nadler, has the option of either applying 4 of the 8 extra hours from the 48-hour week to 13 the 36-hour week in order to reach the hourly full-time requirement for both weeks, or, 14 alternatively, be paid overtime for the extra 8 hours from the 48-hour week and work 15 additional hours to make up for the 4 additional hours needed to make the 36-hour week 16 full-time. (Id. ¶¶ 9-10.) 17 Separate from and in addition to the 3/4 schedule, employees have the option of 18 signing up for voluntary overtime. (Id. ¶ 11.) Because the City’s emergency response 19 services are short-staffed, essentially unlimited overtime is available to employees. (Id. 20 ¶¶ 4, 12.) Employees have three ways to sign up for voluntary overtime. (Id. ¶ 13.) An 21 employee can (1) sign up in advance for voluntary overtime hours using the Telestaff 22 program (“ASUO” shifts); (2) respond to very short notice voluntary overtime shifts 23 (“VSNO” shifts), which apply to same-day or next-day shifts; or (3) inform her 24 supervisor of her availability and ask whether there are shifts available during that period. 25 (Id. ¶¶ 15-17.) Several City Administrative Directives (“AD”) apply to Nadler’s position, 26 including (1) Rules of Conduct; (2) Employee Leaves; (3) Family and Medical Leave; (4) [27] 1 Plaintiff did not raise any objections to Defendant’s Statement of Facts. (Doc. 68.) 28 Accordingly, all facts noted herein are taken from Defendant’s Statement of Facts, unless otherwise noted. 1 Reasonable Accommodation; and (5) Anti-Harassment. (Id. ¶¶ 18-32.) These Directives 2 contain the City’s policies regarding each topic, and each applies to Nadler’s position. 3 (Id.) 4 Nadler has three health conditions that underlay her Family Medical Leave Act 5 (FMLA) leave requests from 2018 through 2021—Meniere’s Disease, Fibromyalgia, and 6 Lupus. (Id. ¶ 33.) Meniere’s Disease is an inner ear disease that causes ringing in the ears 7 and impacts an individual’s hearing ability. (Id. ¶ 35.) Nadler experiences flares of 8 Meniere’s Disease about once per week. (Id. ¶ 37.) Fibromyalgia is a nerve disorder that 9 causes pain in the muscles, which Nadler mostly experiences as pain in the shoulders and 10 neck, and headaches. (Id. ¶ 38.) She experiences flares of fibromyalgia about once per 11 month, and sometimes experiences flares of Meniere’s Disease and fibromyalgia 12 simultaneously. (Id. ¶ 39-40.) Lupus is an auto-immune disease that causes symptoms 13 including pain, body aches, and cognitive issues including difficulty remembering and 14 focusing. (Id. ¶ 41-42.) Nadler experiences lupus flares about once per month. (Id. ¶ 43.) 15 This case arises out of Nadler’s attempted use of FMLA leave to excuse her 16 health-related absences from voluntary overtime shifts. Nadler has stated “FML” when 17 calling in absent on voluntary overtime shifts, and those absences are recorded as “FML” 18 on the City’s attendance spreadsheet. (Id. ¶ 50.) However, the City maintains, and Nadler 19 admits, that absences from voluntary overtime shifts are not covered under the FMLA. 20 (Id. ¶ 51.) Specifically, Nadler testified that when an employee calls in absent on a 21 voluntary overtime shift, no leave balances are applied to those absences; this is 22 consistent with City policy. (Id.; Doc. 60 at 7.) The City has never denied Nadler FMLA 23 leave for absences from her regular 3/4 schedule. (Id. ¶ 52.) 24 As a result of her repeated unscheduled absences from voluntary overtime shifts, 25 the City initially restricted Nadler from signing up for voluntary overtime shifts on three 26 occasions: (1) a 60-day restriction on signing up for ASUO shifts, with no restriction on 27 VSNO shifts, in March 2017; (2) a three-month restriction on signing up for ASUO 28 shifts, with no restriction on VSNO shifts, in April 2018; and (3) a three-month 1 restriction on signing up for ASUO shifts and a two-month restriction on signing up for 2 VSNO shifts, in November 2018. (Id. ¶¶ 55-65.) These restrictions were accompanied by 3 “special evaluations” documenting the issue of Nadler’s absences from scheduled 4 overtime shifts and how this negatively impacted the emergency services department, 5 which was already critically short-staffed. (Id.) On May 23, 2019, Nadler emailed one of 6 her supervisors, Geoff Kuhn, inquiring whether her ability to sign up for overtime shifts 7 would be restricted again due to having to call out “because of FML reasons.” (Id. ¶ 66.) 8 Mr. Kuhn responded that the restrictions on Nadler’s overtime signups were due to her 9 short-notice absences from voluntary overtime shifts, which prevented others from 10 signing up for those shifts during an already understaffed time period. (Id. ¶ 67.) Mr. 11 Kuhn clarified that FMLA does not apply to voluntary overtime. (Id.) 12 On June 25, 2019, Nadler filed a charge with the Civil Rights Division of the 13 Arizona Attorney General’s Office and the Equal Employment Opportunity Commission 14 (“EEOC”). (Id. ¶¶ 68-70.) On July 19, 2019, following its receipt of the charge, the City 15 sent Nadler a reasonable accommodation packet for completion, but she did not complete 16 it. (Id. ¶¶ 71-76.) Nadler’s annual evaluation in 2019 identified her absences from 17 voluntary overtime shifts as an area needing improvement. (Id. ¶¶ 77-82.) After Nadler 18 informed her supervisor that the absences were “not something [she] can work on” and 19 that her conditions were “going to get worse with time, not better,” the evaluation was 20 revised to omit the attendance-related statements. (Id.) 21 In September 2019, Nadler received another “special evaluation” that restricted 22 her ability to sign up for ASUO shifts for a six-month period. (Id. ¶¶ 83-85.) Her ability 23 to sign up for VSNO was not restricted and she worked VSNO shifts during this period. 24 (Id.) 25 Nadler claims her three medical conditions constitute a disability under the 26 Americans with Disabilities Act (ADA). (Id. ¶ 34.) However, she testified at her 27 deposition that there was no reasonable accommodation the City could provide to 28 accommodate her needs when she is experiencing a flare-up of Meniere’s, lupus, or 1 fibromyalgia, other than allowing her to use FMLA leave for absences from voluntary 2 overtime shifts. (Id. ¶¶ 86-92.) She testified that she is not able to perform the essential 3 functions of her job when she is having a flare-up that requires her to be absent. (Id.) 4 Nadler claims that the special evaluations and restrictions on her ability to sign up for 5 ASUO shifts were in retaliation for her attempt to use FMLA leave for absences from 6 voluntary overtime shifts. (Id. ¶¶ 96-97.) 7 III. Discussion 8 Defendant moves for summary judgment on all of Plaintiff’s claims. First, 9 Defendant argues that Plaintiff’s claim that the City interfered with her ability to take 10 FMLA-protected leave fails because (1) FMLA-protected leave does not apply to 11 absences from voluntary overtime shifts and (2) Nadler cannot prove that the special 12 evaluations and temporary restrictions on her ability to sign up for voluntary overtime 13 caused her economic harm or were “adverse employment actions” within the meaning of 14 the FMLA. (Doc. 60 at 2.) Second, Defendant argues that Plaintiff’s claim that the City 15 denied her a reasonable accommodation under the ADA fails because (1) Nadler is not a 16 “qualified individual” within the meaning of the ADA; (2) Nadler’s suggested 17 accommodation of absenteeism from voluntary overtime shifts is not reasonable; and (3) 18 Nadler failed to engage in the interactive process to determine an accommodation. (Id. at 19 10-16.) Third, Defendant argues that Plaintiff’s ADA disparate treatment claim fails 20 because she is not qualified and suffered no adverse employment action within the 21 meaning of the statute. (Id. at 16-18.) Fourth, Defendant argues that Plaintiff’s hostile 22 environment/harassment claim under the ADA fails because no such cause of action has 23 been recognized in the Ninth Circuit and, even if it had, she is not a qualified individual 24 with a disability within the meaning of the statute. (Id. at 18-19.) Lastly, Defendant 25 argues that Plaintiff’s ADA retaliation claim fails because she suffered no adverse action, 26 let alone one connected to a protected activity. (Id. at 20-21.)2 [27] 2 Defendant argues that Plaintiff’s disability-based Arizona Civil Rights Act (ACRA) 28 claims are subject to the same standards as the ADA claims and fail for the same reasons. (Doc. 60 at 21.) 1 As Plaintiff does not contest Defendants’ Statement of Facts, the Court finds that 2 there is no genuine dispute as to any material fact and thus the question before the Court 3 is whether Defendant is entitled to judgment as a matter of law on any or all of Plaintiff’s 4 claims. 5 a. FMLA claims 6 “The FMLA provides job security to employees who must be absent from work 7 because of their own illnesses, to care for family members who are ill, or to care for new 8 babies.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119 (9th Cir. 2001) (citing [9] 29 U.S.C. § 2612 ). The FMLA “creates two interrelated, substantive employee rights: 10 first, the employee has a right to use a certain amount of leave for protected reasons, and 11 second, the employee has a right to return to his or her job or an equivalent job after 12 using protected leave.” Id. at 1122 (citing 29 U.S.C. §§ 2612 (a), 2614(a)). It is “unlawful 13 for an employer to ‘interfere with, restrain, or deny the exercise of or the attempt to 14 exercise, any right provided’ by the Act.” Id. (citing 29 U.S.C. § 2615 (a)(1)). Interference 15 “includes refusing to authorize FMLA leave, discouraging the use of such leave, and 16 changing the essential functions of the job in order to preclude the taking of leave.” 17 Aguirre v. California, No. 16-CV-05564-HSG, 2019 WL 3544006 , at *2 (N.D. Cal. Aug. 18 2, 2019), aff'd, 842 F. App'x 91 (9th Cir. 2021) (citing 29 C.F.R. § 825.220 (b)). 19 Furthermore, “employers cannot use the taking of FMLA leave as a negative factor in 20 employment actions, such as . . . disciplinary actions.” Bachelder, 259 F.3d at 1122 21 (citing 29 C.F.R. § 825.220 (c)). An adverse employment action is one that “is reasonably 22 likely to deter employees from engaging in protected activity.” Garmon v. Plaid Pantries, 23 No. 3:12-CV-1554-AC, 2013 WL 3791433 , at *19 (D. Or. July 19, 2013) (citing 24 Bachelder, 259 F.3d at 1124 ). Such actions can include, depending on the circumstances, 25 “termination, dissemination of an unfavorable employment reference, issuance of an 26 undeserved negative performance review, refusal to consider for promotion, exclusion 27 from meetings, seminars and positions providing eligibility for salary increases, denial of 28 secretarial support, a more burdensome work schedule, and a lateral transfer.” Id. 1 (internal citations omitted). A plaintiff must also “establish that he was economically 2 prejudiced as a result of the employer's actions.” Id. 3 To establish a prima facie case of FMLA interference, a plaintiff must establish 4 that “(1) he was eligible for the FMLA's protections, (2) his employer was covered by the 5 FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of 6 his intent to take leave, and (5) his employer denied him FMLA benefits to which he was 7 entitled.” Aguirre, 2019 WL 3544006 , at *2 (quoting Escriba v. Foster Poultry Farms, 8 Inc., 743 F.3d 1236, 1243 (9th Cir. 2014)); see also Bachelder, 259 F.3d at 1125 (the 9 FMLA is not implicated and does not protect an employee against disciplinary action 10 based on absences not taken for one of the reasons enumerated in the Act); Marchisheck 11 v. San Mateo County, 199 F.3d 1068 (9th Cir. 1999) (a terminated employee had no 12 cause of action under the FMLA because the absences for which she was fired were not 13 protected by the Act). 14 Applicable regulations state that the FMLA does not apply to voluntary overtime 15 work, even if absences from such work are taken due to an FMLA-qualifying reason: 16 (c) Overtime. If an employee would normally be required to work overtime, but is unable to do so because of a FMLA– [17] qualifying reason that limits the employee's ability to work 18 overtime, the hours which the employee would have been required to work may be counted against the employee's [19] FMLA entitlement. In such a case, the employee is using 20 intermittent or reduced schedule leave. For example, if an employee would normally be required to work for 48 hours in 21 a particular week, but due to a serious health condition the 22 employee is unable to work more than 40 hours that week, the employee would utilize eight hours of FMLA–protected leave 23 out of the 48–hour workweek, or one-sixth (1/6) of a week of 24 FMLA leave. Voluntary overtime hours that an employee does not work due to an FMLA–qualifying reason may 25 not be counted against the employee's FMLA leave entitlement. [26] 29 C.F.R. § 825.205 (c) (emphasis added). [28] 1 The City’s AD 2.01-7C, Family and Medical Leave, requires that “utilization of 2 FML runs concurrent with all other leaves” and “an employee is required to use all paid 3 leave benefits . . . in the following order: Sick Leave, Vacation Leave, Compensatory 4 Time, and Floating Birthday/Holiday. All paid leave benefits run concurrently with FML 5 (continuous or intermittent) and must be exhausted before Leave Without Pay (LWOP) 6 can be approved.” (Doc. 60 at 7; Doc. 61 ¶ 25.) The parties do not dispute that the City 7 does not apply paid leave benefits to absences from voluntary overtime shifts. (Id.) 8 Because FMLA leave does not apply to absences from voluntary overtime shifts, 9 consistent with the City policy not to apply paid leave to those absences, Nadler’s FMLA 10 claim fails as a matter of law. Furthermore, because absences from voluntary overtime 11 shifts are not FMLA-protected, any adverse employment actions that Nadler alleges 12 cannot be connected to those absences. Furthermore, Nadler has not demonstrated any 13 economic harm resulting from the restrictions on her ability to sign up for voluntary 14 overtime shifts. Accordingly, summary judgment will be granted to Defendant on this 15 claim. 16 b. ADA claims 17 i. Reasonable accommodation 18 “The ADA treats the failure to provide a reasonable accommodation as an act of 19 discrimination if the employee is a ‘qualified individual,’ the employer receives adequate 20 notice, and a reasonable accommodation is available that would not place an undue 21 hardship on the operation of the employer’s business.” Snapp v. United Transportation 22 Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (citing 42 U.S.C. § 12112 (b)(5)(A)). 23 Reasonable accommodations may include “job restructuring, part-time or modified work 24 schedules, reassignment to a vacant position, acquisition or modification of equipment or 25 devices, appropriate adjustment or modifications of examinations, training materials or 26 policies, the provision of qualified readers or interpreters, and other similar 27 accommodations for individuals with disabilities.” 42 U.S.C. § 12111 (9). The ADA does 28 not explicitly define the term “reasonable accommodation,” see 42 U.S.C. § 12111 (9); 1 however, the EEOC regulations have defined it as “[m]odifications or adjustments to the 2 work environment, or to the manner or circumstances under which the position held or 3 desired is customarily performed, that enable an individual with a disability who is 4 qualified to perform the essential functions of that position.” 29 C.F.R. § 1630.2 (o)(1)(ii). 5 The Ninth Circuit has similarly held that a “reasonable accommodation must be effective, 6 in enabling the employee to perform the duties of [her] position.” Ravel v. Hewlett7 Packard Enter., Inc., 228 F. Supp. 3d 1086, 1093 (E.D. Cal. 2017) (citing Humphrey v. 8 Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001)). 9 A “qualified individual” within the meaning of the ADA is “an individual with a 10 disability who, with or without reasonable accommodation, can perform the essential 11 functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12 12111(8); 29 C.F.R. § 1630.2 (m). “Essential functions” are “fundamental job duties of 13 the employment position the individual with a disability holds or desires” and do not 14 include “marginal functions of the position.” 29 C.F.R. § 1630.2 (n). A function may be 15 essential due to a “limited number of employees available” or being “highly specialized.” [16] Id. 17 Courts have found that attendance is an “essential function” of jobs that involve 18 life-or-death situations, answering urgent phone calls, and those where staffing is short. 19 See Guzman v. Brown Cnty., No. 15-CV-0215, 2016 WL 7839143 , at *6 (E.D. Wis. Sept. 20 1, 2016), aff'd, 884 F.3d 633 (7th Cir. 2018) (finding that attendance was an essential 21 function of the job where, without plaintiff’s attendance, “[emergency] calls do not get 22 answered, emergency services do not get dispatched, and the job does not get done. 23 [Plaintiff’s] attendance is absolutely required at work, or else someone else has to 24 perform her job for her.”); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233 , 25 1239 (9th Cir. 2012) (“Except in the unusual case where an employee can effectively 26 perform all work-related duties at home, an employee who does not come to work cannot 27 perform any of his job functions, essential or otherwise.”) (internal citations omitted); 28 Mcclelland v. Permanente Med. Grp., Inc., No. 2:11-CV-1224-LKK-EFB, 2013 WL 1 1195032, at *2 (E.D. Cal. Mar. 22, 2013) (attendance essential where understaffing 2 compromises patient care). As courts have consistently found that attendance at work is 3 an essential function, they have also found that individuals with disabilities that prevent 4 them from coming to work are not “qualified individuals” under the ADA. See Samper, [5] 675 F.3d at 1237 (“[I]f one is not able to be at work, one cannot be a qualified 6 individual.”); Taylor-Novotny v. Health All. Med. Plans, Inc., 772 F.3d 478 , 489–90 (7th 7 Cir. 2014) (“A plaintiff whose disability prevents her from coming to work regularly 8 cannot perform the essential functions of her job, and thus cannot be a qualified 9 individual for ADA purposes.”). 10 “The ADA and the FMLA have divergent aims, operate in different ways, and 11 offer disparate relief. An employee seeking FMLA leave is by nature arguing that he 12 cannot perform the functions of the job, while an employee requesting a reasonable 13 accommodation communicates that he can perform the essential functions of the job.” 14 Smith v. Cook Cnty., No. 17 C 7609, 2019 WL 1515007 , at *5 (N.D. Ill. Apr. 8, 2019) 15 (internal citation omitted). 16 As an initial matter, the Court finds that attendance at voluntary overtime shifts for 17 which an employee has signed up is an essential function of Nadler’s position. The 18 uncontroverted testimony indicates that there is a shortage of emergency call takers, calls 19 must be answered for emergency services to be timely dispatched, and an employee’s 20 failure to show up for a scheduled overtime shift precludes any other employee from 21 taking that shift. This leaves the City short-staffed during a time of critical need, which 22 results in a seriously detrimental impact to the functioning of those services. Neither 23 party disputes these facts and a finding that attendance at scheduled voluntary overtime 24 shifts is an essential function is consistent with the findings of other courts analyzing 25 similar fact patterns. Although the overtime shifts at issue here are voluntary, once an 26 employee has signed up, the facts show that attendance is essential. 27 Nadler testified at her deposition that when she experiences flares of Meniere’s, 28 fibromyalgia, or lupus, she is unable to attend voluntary overtime shifts and must “lay in 1 bed and wait it out.” (Doc. 60 at 12; Doc. 61 ¶ 36.) Nadler further testified that there is no 2 accommodation the City could provide that would enable her to attend work during those 3 times. (Id.; Doc. 61 ¶¶ 86-89.) Thus, even if Nadler has a qualifying disability within the 4 meaning of the ADA, she is not a “qualified individual” for purposes of the statute 5 because, with or without a reasonable accommodation, she is unable to perform the 6 essential function of in-person attendance at her position during her overtime shifts. The 7 accommodation Nadler suggests, namely, being allowed to apply FMLA leave to 8 absences from voluntary overtime shifts, does not qualify as a “reasonable 9 accommodation” within the meaning of the statute because it does not enable her to 10 perform the essential functions of her job. Furthermore, such an accommodation would 11 be inconsistent with the dictates of both the FMLA and the ADA, as the FMLA protects 12 leave taken due to an inability to perform a job, while the ADA requires reasonable 13 accommodations to allow employees to work. Nadler appears to overlook this distinction 14 in arguing that FMLA-protected leave should be a reasonable accommodation. Because 15 there is no reasonable accommodation that would enable Nadler to perform the essential 16 function of attending ASUO shifts once she has signed up for them, summary judgment 17 will be granted to Defendant on this claim. 18 ii. Disparate treatment 19 The ADA provides that no covered employer “shall discriminate against a 20 qualified individual with a disability because of the disability of such individual in regard 21 to job application procedures, the hiring, advancement, or discharge of employees, 22 employee compensation, job training, and other terms, conditions and privileges of 23 employment.” Johnson v. Evangelical Lutheran Good Samaritan Soc'y, No. CV-04-20924 ST, 2005 WL 2030834 , at *7 (D. Or. Aug. 23, 2005) (citing 42 USC § 12112 (a)). “To 25 establish a prima facie case of employment discrimination under the ADA, the plaintiff 26 must prove three elements: (1) the plaintiff is disabled within the meaning of the ADA; 27 (2) the plaintiff is a qualified individual able to perform the essential functions of the job, 28 either with or without reasonable accommodations; and (3) his employer terminated him 1 [or took other adverse action] because of his disability.” Id. (citing Nunes v. Wal–Mart 2 Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999) (citation omitted)); see also Sanders v. 3 Arneson Prod., Inc., 91 F.3d 1351, 1353 (9th Cir. 1996) (“To state a prima facie case 4 under the ADA, a plaintiff must prove that he is a qualified individual with a disability 5 who suffered an adverse employment action because of his disability.”). 6 As discussed above in Section III(b)(ii), Plaintiff is not a qualified individual for 7 purposes of the ADA because she is not able to perform the essential function of 8 attending voluntary overtime shifts for which she has signed up, either with or without a 9 reasonable accommodation. Therefore, Plaintiff has not stated a prima facie disparate 10 treatment claim and summary judgment will be granted to Defendant on this claim. 11 iii. Hostile environment and harassment 12 In Brown v. City of Tucson, 336 F.3d 1181, 1190 (9th Cir. 2003), the Ninth Circuit 13 Court of Appeals explicitly declined to find a basis for a hostile work environment claim 14 in the ADA, specifically in the portion of the statute stating that “[n]o covered entity shall 15 discriminate against a qualified individual on the basis of disability in regard to job 16 application procedures, the hiring, advancement, or discharge of employees, employee 17 compensation, job training, and other terms, conditions, and privileges of employment.” [18] 42 U.S.C. § 12112 (a). Because the Brown court found no statutory source for a claim of 19 harassment or hostile work environment in the ADA, at least one district court in the 20 Ninth Circuit has declined to recognize such a claim. See King v. C&K Mkt., Inc., No. 21 216CV00559TLNCMK, 2018 WL 934551 , at *5 (E.D. Cal. Feb. 15, 2018). However, 22 other circuits have recognized such claims as actionable under the ADA. See Wynes v. 23 Kaiser Permanente Hosps., 936 F. Supp. 2d 1171, 1185 (E.D. Cal. 2013) (citing cases). 24 Were the Ninth Circuit to recognize such a claim under the ADA, a plaintiff would likely 25 have to show that “(1) she is a qualified individual with [a] disability; (2) she suffered 26 from unwelcome harassment; (3) the harassment was based on her disability or a request 27 for accommodation; (4) the harassment was sufficiently severe or pervasive to alter the 28 conditions of her employment and to create an abusive working environment; and (5) 1 Defendants knew or should have known of the harassment and failed to take prompt 2 remedial action.” Wynes, 936 F. Supp. 2d at 1185 (citing Walton v. Mental Health Ass'n, [3] 168 F.3d 661, 667 (3d Cir.1999)). 4 Thus, even if the Ninth Circuit had recognized a harassment or hostile work 5 environment claim under the ADA, which it has not, Plaintiff has not shown that she is a 6 qualified individual with a disability, as discussed above in Sections III(b)(ii)-(iii). As a 7 result, she has failed to state the first element of a prima facie claim for hostile work 8 environment or harassment under the ADA. Summary judgment will be granted to 9 Defendant on this claim. 10 iv. Retaliation 11 To establish a prima facie case of retaliation under the ADA, a plaintiff must show 12 by a preponderance of the evidence that “(1) he engaged in protected activity; (2) he was 13 subject to adverse action; and (3) a causal link between the protected activity and the 14 adverse action.” Nelson v. Hibu Inc., No. CV-13-0956-TUC-DCB, 2018 WL 10246973 , 15 at *7 (D. Ariz. Feb. 16, 2018), aff'd, 754 F. App'x 643 (9th Cir. 2019) (citing Brown, 336 16 F.3d at 1187). “When analyzing the elements of an ADA retaliation claim, it is 17 appropriate to look to Title VII cases for guidance.” Id. (citing Pardi v. Kaiser Found. 18 Hosps., 389 F.3d 840 , 850 & n.5 (9th Cir. 2004)). 19 A protected activity “includes opposing any act or practice by the employer that 20 violates the ADA and pursuing rights guaranteed by the statute like requesting a 21 reasonable accommodation.” LeBarron v. Interstate Grp., LLC, 529 F. Supp. 3d 1163 , 22 1173 (D. Nev. 2021) (citing Pardi, 389 F.3d at 849 ); see also Pardi, 389 F.3d at 850 23 (“Pursuing one's rights under the ADA constitutes a protected activity.”). 24 Under the ADA, an adverse action is one that is “reasonably likely to deter 25 [individuals] from engaging in protected activity.” Nelson, 2018 WL 10246973 at *7 26 (citing Pardi, 389 F.3d at 850 ). “Adverse action must be sufficiently material, i.e., it must 27 be ‘non-trivial’ in nature.” Id. (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 28 U.S. 53, 57 (2006). “As to causation, a plaintiff must prove, by a preponderance of the 1 evidence, that there is a causal link between his protected activity and an adverse action.” [2] Id. “[L]iability only arises when adverse action was taken ‘because’ the plaintiff engaged 3 in protected activity.” Id. (citing 42 U.S.C. § 12203 (a)). “The adverse action must be 4 based on a retaliatory motive.” Id. 5 Nadler alleges that her “repeated efforts to seek redress through internal 6 communications represent protected conduct.” (Doc. 66 at 22.) However, she makes only 7 vague allegations regarding the causal connection between that conduct and the alleged 8 adverse actions. Nadler does not explicitly allege that her efforts to seek redress for the 9 perceived discrimination against her led to or resulted in adverse actions against her. 10 Rather, the gravamen of her complaint is that the adverse actions (i.e., restricted ability to 11 sign up for voluntary overtime shifts and negative performance reviews) were the result 12 of her unplanned absences from voluntary overtime shifts. However, such absences do 13 not constitute protected conduct for purposes of an ADA retaliation claim. As Nadler has 14 failed to show, or even allege, a causal link between protected conduct and adverse 15 actions, her retaliation claim fails as a matter of law. Accordingly, summary judgment 16 will be granted to Defendant on this claim. 17 c. ACRA claims 18 The “ADA standards for disability discrimination claims apply to similar claims 19 brought under the Arizona Civil Rights Act (“ACRA”), A.R.S. § 41–1463, as the ACRA 20 is modeled after federal employment discrimination laws.” Whitmire v. Wal-Mart Stores 21 Inc., 359 F. Supp. 3d 761, 792 (D. Ariz. 2019) (citing Larson v. United Nat. Foods W., 22 Inc., No. CV-10-185-PHX-DGC, 2011 WL 3267316 , at *3 (D. Ariz. July 29, 2011)); see 23 also Ransom v. State of Arizona Bd. of Regents, 983 F. Supp. 895, 904 (D. Ariz. 1997) 24 (“This Court finds federal case law to be persuasive in interpreting the ACRA because of 25 the similarities between it and the federal antidiscrimination laws”); Shulock v. City of 26 Tucson, No. CV 07-618 TUC DCB, 2010 WL 2720839 , at *6, n. 3 (D. Ariz. July 9, 2010) 27 (“The Court's ADA and Title VII analysis applies to Plaintiff's ACRA claim. If Plaintiff's 28 claim does not survive under federal law, summary judgment is proper as to his state law || claim as well.”) Accordingly, because the Court will grant summary judgment on the ADA claims, it will apply the same analysis to the ACRA claims and grant summary 3 || judgment for Defendant on the same grounds. 4 IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 60) is 5|| granted. The above-captioned case is dismissed. The Clerk of Court shall enter 6 || judgment accordingly and close this case. 7 Dated this 27" day of December, 2022. [9] i lt ae) “TVNUOBHUE?L/ 12 Honorable Rostsiary Mafquez United States District Jlidge [28] - 16-