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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kevin P. Fitzgerald,

Plaintiff,

v. 

Freightliner of Arizona LLC,

Defendant.

No. CV-17-04601-PHX-JJT

ORDER 

At issue is Defendant Freightliner of Arizona LLC’s Motion for Summary Judgment 

(Doc. 45, MSJ), to which Plaintiff Kevin P. Fitzgerald filed a Response (Doc. 62, Resp.) 

and Defendant filed a Reply (Doc. 64, Reply). Also at issue is Plaintiff’s Motion for 

Judicial Notice (Doc. 54), to which Defendant filed a Response (Doc. 58) and Plaintiff 

filed a Reply (Doc. 61). The Court finds these matters appropriate for decision without oral 

argument.

I. BACKGROUND

In 2010, Plaintiff began working for Defendant as a Heavy Truck Part Salesman.

(Doc. 46, Defendant’s Statement of Facts (“DSOF”) ¶ 1; Doc. 1, Compl. ¶ 5.) Plaintiff later 

became a back counter partsman, and in this role, Plaintiff’s job duties included pulling 

parts to fulfill request orders. (DSOF ¶¶ 2, 10.) Plaintiff worked under the supervision of 

Jeffrey Hottel (“Hottel”), who generally regarded Plaintiff as a “satisfactory employee.” 

(DSOF ¶ 3.) 

While employed by Defendant, Plaintiff made Defendant aware that he had 
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diabetes, back issues, and lung issues. (DSOF ¶ 6.) To accommodate Plaintiff’s diabetes, 

Defendant allowed Plaintiff to test his blood sugar as needed and take the earliest possible 

lunch for a partsman. (DSOF ¶ 8.) There were instances, however, when the volume of 

work orders prevented Plaintiff from taking lunch at the earliest time. (DSOF Ex. 1 at 8; 

Doc. 63, Plaintiff’s Controverting Statement of Facts (“PSOF”) ¶ 8.)1 Defendant also 

provided Plaintiff with salads at work-related events to accommodate his diabetes. (DSOF 

¶¶ 41–42.) To accommodate Plaintiff’s back issues, Defendant directed warehouse staff to 

pull parts for Plaintiff that exceeded Plaintiff’s lifting restriction. (DSOF ¶ 9.) Warehouse 

staff, however, were not always available to assist Plaintiff because of their own work 

obligations. (DSOF ¶ 47.) As an accommodation for his lung issues, Plaintiff requested 

that he be allowed to park in a designated disabled parking space. Although Plaintiff 

possessed a disabled parking placard, Defendant required him to park in general employee 

parking. (DSOF ¶¶ 48–49.)

Throughout his employment, Plaintiff complained to Hottel about inappropriate 

comments that Defendant’s employees, including Hottel, made to him. (DSOF ¶¶ 32, 39.)

Plaintiff alleges that Travis Mobley (“Mobley”) brought breads, cookies, and candies to 

the workplace, and made fun of Plaintiff because he could not eat the foods because of his 

diabetes. (DSOF ¶ 34.) Another employee made remarks to Plaintiff that he would “get the 

phone since [Plaintiff’s] diabetic back can’t do it” and referred to Plaintiff as “old man.”

(DSOF Ex. 1 at 19.) A third employee also made comments to Plaintiff about his age. 

(DSOF Ex. 1 at 19.) All of these comments were made on a weekly basis. (DSOF ¶ 37.) 

Plaintiff estimates that on a monthly basis, Hottel referred to Plaintiff as a “gimp.” (DSOF 

 

1 Defendant, in its Reply, requests leave to file a substantive response to Plaintiff’s 

Controverting Statement of Facts. (Reply at 2.) The Court notes that Plaintiff’s 

Controverting Statements of Facts includes facts that are immaterial to the Court’s analysis. 

See LRCiv 56.1(b). In resolving Defendant’s Motion for Summary Judgment, the Court 

did not rely on any of these facts. Accordingly, the Court denies Defendant’s request. 

In addition, Plaintiff’s Amended Response to Statement of Facts in Support of 

Defendant’s Motion for Summary Judgment uses inconsistent systems for numbering 

exhibits. The Court therefore cites to Plaintiff’s exhibits as they are numbered and listed in 

the docket. For consistency, the Court also cites to the exhibits in Defendant’s Statement 

of Facts as they are numbered in the docket. 
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¶¶ 36–37.) Plaintiff testified that these comments “kind of” impacted his ability to do his 

job and “anger[ed] [him] a little.” (DSOF ¶ 38.) 

On December 7, 2016, an altercation between Plaintiff and Mobley occurred. 

(DSOF ¶¶ 11–14.) Plaintiff received a request order for parts but did not fulfill the request 

because a service manager gave him permission to take his lunch break. (DSOF ¶ 11; PSOF 

¶ 107.) Mobley, acting as the lead of the parts department, confronted Plaintiff about not

pulling the requested part. (PSOF Ex. 1 at 94–95; PSOF ¶ 110.) Plaintiff then raised his 

voice and cursed at Mobley in front of other employees.2(DSOF Ex. 1 at 15.) Soon after,

Plaintiff texted Hottel, who was not working on that day. (DSOF ¶¶ 15–16.) The texts 

explained that Plaintiff was late for his lunch and not feeling well because his blood sugar 

was low. (DSOF Ex. 4.) The texts further stated that Plaintiff lost his temper, and that 

Hottel may want him to resign. (DSOF Ex. 4.) 

Hottel investigated the incident. (DSOF ¶ 16.) Hottel spoke with Mobley and the

employees that witnessed the altercation, but Hottel did not further discuss the incident 

with Plaintiff. (DSOF ¶ 16; PSOF ¶ 126.) Hottel then relayed the information to the 

regional manager, and the regional manager instructed Hottel to terminate Plaintiff’s 

employment. (PSOF Ex. 1 at 108–09.) On December 13, 2016, Defendant terminated 

Plaintiff’s employment. (DSOF ¶ 20.) 

Plaintiff later applied for disability benefits from the Social Security Disability 

Insurance (“SSDI”) program. (DSOF ¶ 25.) The Social Security Administration (“SSA”) 

determined Plaintiff became disabled on December 7, 2016 under SSA guidelines and 

awarded him SSDI benefits. (DSOF ¶ 26.) 

On January 11, 2017, Plaintiff filed a charge of disability discrimination and 

retaliation with the Civil Rights Division of the Arizona Attorney General’s Office 

(“ACRD”) and the Equal Employment Opportunity Commission (“EEOC”). (DSOF ¶ 29.) 

 

2 Plaintiff, in his Response, argues that “damn” is not a “curse” word. (Resp. at 11.) 

In his deposition, however, Plaintiff agreed that he “cursed” at Mobley. Thus, the Court 

characterizes the language used by Plaintiff as cursing without deciding whether “damn” 

constitutes cursing. (DSOF Ex. 1 at 15.) 
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The ACRD issued notice of Plaintiff’s right to sue on September 15, 2017. (PSOF Ex. 3 at 

34.) On December 13, 2017, Plaintiff filed a Complaint alleging the following: (Count IA) discriminatory discharge in violation of the Americans with Disabilities Act (“ADA”), 

42 U.S.C. §§ 12112 et seq.; (Count I-B) failure to provide reasonable accommodations in 

violation of the ADA; (Count I-C) hostile work environment in violation of the ADA; 

(Count II) retaliation in violation of the ADA; and (Count III) disability discrimination and 

retaliation in violation of the Arizona Civil Rights Act (ACRA), A.R.S. §§ 14-1461 et seq.3

Defendant now moves for summary judgment on all claims against it. In addition to 

opposing summary judgment, Plaintiff also moves the Court to take judicial notice that 

“[s]ymptoms of low blood sugar (hypoglycemia) tend to come on quickly and can include 

a person being irritable, argumentative or combative, changed behavior or personality 

(such as anger), and feeling weak.” (Doc. 54 at 1.) 

II. LEGAL STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 

appropriate when: (1) the movant shows that there is no genuine dispute as to any material 

fact; and (2) after viewing the evidence most favorably to the non-moving party, the 

movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 

477 U.S. 317, 322–23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288–89 

(9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the 

outcome of the suit under governing [substantive] law will properly preclude the entry of 

summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

“genuine issue” of material fact arises only “if the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party.” Id.

In considering a motion for summary judgment, the Court must regard as true the 

non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 

 

3 The Complaint characterizes the discriminatory discharge, reasonable 

accommodation, and hostile work environment claims under the ADA (collectively, the 

“Discrimination Claims”) as “Count I.” For purposes of clarity, the Court, in this Order,

uses a more specific nomenclature to address Plaintiff’s individual claims under Count I. 
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Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party 

may not merely rest on its pleadings; it must produce some significant probative evidence 

tending to contradict the moving party’s allegations, thereby creating a material question 

of fact. Anderson, 477 U.S. at 256–57 (holding that the plaintiff must present affirmative 

evidence in order to defeat a properly supported motion for summary judgment); First Nat’l 

Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 

“A summary judgment motion cannot be defeated by relying solely on conclusory 

allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 

1989). “Summary judgment must be entered ‘against a party who fails to make a showing 

sufficient to establish the existence of an element essential to that party’s case, and on 

which that party will bear the burden of proof at trial.” United States v. Carter, 906 F.2d 

1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 

III. ANALYSIS

Defendant moves for summary judgment on each of Plaintiff’s claims. (MSJ at 1.) 

The Court will first address Plaintiff’s Discrimination Claims under the ADA. In doing so, 

the Court will also resolve Plaintiff’s Motion for Judicial Notice. The Court will then 

address Plaintiff’s retaliation claim under the ADA, followed by Plaintiff’s ACRA claims.

A. Count I: Discrimination Claims

a. Count I-A: Discriminatory Discharge

Plaintiff alleges that Defendant unlawfully discriminated against him by firing him 

because of his disability. (Compl. ¶ 56.) Defendant argues that (1) Plaintiff failed to prove 

a prima facie case of discrimination and (2) Defendant fired Plaintiff for a legitimate, nondiscriminatory reason. (MSJ at 8–10.)

i. Plaintiff’s Prima Facie Case

The ADA prohibits an employer from discriminating “against a qualified individual 

on the basis of a disability.” 42 U.S.C. § 12112(a). Claims brought under the ADA are 

“subject to the burden-shifting framework” laid out in McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802–04 (1973). See Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th 
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Cir. 2014). Under the McDonnell Douglas framework, a plaintiff bears “the initial burden 

of establishing a prima facie case of discrimination.” Id. To establish a prima facie case 

under the ADA, a plaintiff must show that: “(1) he is disabled within the meaning of the 

ADA; (2) he is a qualified individual able to perform the essential functions of the job with 

reasonable accommodation; and (3) he suffered an adverse employment action because of 

his disability.” Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003). 

Defendant disputes only one of the prima facie elements of disability discrimination 

under the ADA: that Plaintiff is a qualified individual able to perform the essential 

functions of the job with reasonable accommodation. (MSJ at 9.) Defendant argues that 

Plaintiff fails to explain how he can be eligible for SSDI benefits—an award premised on 

his inability to work—when, in this lawsuit, he argues he could perform the essential 

functions of a partsman. (MSJ at 9.) Plaintiff counters that he was able to perform the 

essential functions of the job with reasonable accommodations, and further argues that 

there is sufficient evidence as to why he could qualify for SSDI benefits and still be 

protected by the ADA. (Resp. at 6–7.)

SSDI claims and ADA claims do not inherently conflict. Cleveland v. Policy Mgmt.

Sys. Corp., 526 U.S. 795, 802 (1999). Under the ADA, for example, a “qualified 

individual” includes a disabled person who can perform the essential functions of a job 

with reasonable accommodation. Id. at 803. The SSA, however, does not consider the 

possibility of reasonable accommodations when determining SSDI eligibility. Id.

Accordingly, there are situations in which a SSDI claim and an ADA claim can exist 

harmoniously. Id.

An ADA plaintiff, however, cannot turn a blind eye to the SSDI contention that he 

was too disabled to work. Id. at 798. To survive a defendant’s motion for summary 

judgment, a plaintiff who is alleging ADA claims but who also qualifies for SSDI benefits

must provide an explanation that is sufficient for a reasonable juror to conclude that he

could perform the essential function of a job, with or without reasonable accommodation, 

despite a disability determination by the SSA. Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 
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959 (9th Cir. 2013). This “sufficient explanation standard is not an exceedingly demanding 

one.” Id. at 958. Indeed, plaintiffs bringing claims under the ADA have “wide latitude to 

overcome apparent conflicts between their disability applications and their ADA claims.” 

Id.

Under this standard, the Court concludes that Plaintiff provided an explanation 

sufficient for a reasonable juror to conclude that Plaintiff could perform the essential 

functions of a back counter partsman, with or without reasonable accommodation. Plaintiff 

explains that SSDI does not consider reasonable accommodations required under the ADA, 

and that he could perform the essential functions of the back counter position with the 

reasonable accommodations generally provided to him prior to his termination. (Resp. at 

6). Defendant argues that Plaintiff’s explanation is insufficient because Plaintiff repeatedly 

applied for SSDI benefits. (Reply at 4.) Past denial of SSDI benefits, however, suggests 

that Plaintiff was able to work and, therefore, is consistent with Plaintiff’s ADA claims. 

The fact that Plaintiff met production quotas and Hottel described his performance as “on 

par with the job” reinforce the Court’s determination. (PSOF ¶ 79, 81; PSOF Ex. 1 at 71.)

Defendant also argues that Plaintiff failed to satisfy the sufficient explanation 

standard based on Plaintiff’s deposition testimony. In his deposition, Plaintiff testified that

he would need “another person there setting by me, running, going, getting the parts, doing 

all the heavy lifting for me . . . pretty much another me” to perform the essential functions 

of a back counter partsman. (Reply at 4.) Defendant argues that hiring a second person to 

do the work of Plaintiff is not a reasonable accommodation, and thus Plaintiff is not a 

qualified individual under the ADA. (MSJ at 9.) Plaintiff, however, contends that 

Defendant’s argument is “premised upon a gross characterization” of Plaintiff’s deposition 

testimony, and that Plaintiff was simply being “facetious.” (Resp. at 6.) 

The Court is loath to reward a party who testifies under oath one way, only to

impugn the seriousness of this sworn testimony when its potential detriment is realized. 

Nonetheless, given the wide latitude afforded to ADA plaintiffs to overcome SSDI and 

ADA discrepancies and that Plaintiff, when considering the reality of his circumstances 
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and the objective evidence as a whole, performed the duties of his job with reasonable 

accommodations until his termination, the Court finds that Plaintiff provided an 

explanation sufficient for a reasonable juror to conclude that Plaintiff could perform the 

essential functions of his job, with or without reasonable accommodation. Thus, Defendant 

is not entitled to summary judgment as to Plaintiff’s prima facie case of discriminatory 

discharge under the ADA. See Smith, 727 F.3d at 959.

ii. Non-Discriminatory Reason for Discharge

If an ADA plaintiff establishes a prima facie case of discrimination, “the burden 

shifts to the defendant to provide a legitimate, non-discriminatory reason for its 

employment action.” Raytheon Co. v. Hernandez, 540 U.S. 44, 50 (2003). A defendant is 

not required to persuade the Court that an employment action was “actually motivated by 

the proffered reasons.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). 

Rather, a defendant need only provide evidence that raises a genuine issue of fact as to 

whether it discriminated against the plaintiff. Burdine, 450 U.S. at 254–55. Once an 

employer offers a legitimate, nondiscriminatory reason for its employment action, the 

burden shifts back to the plaintiff to demonstrate the employer’s articulated reason is a 

pretext for disability discrimination. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 

1093 (9th Cir. 2001).

Defendant contends that it terminated Plaintiff’s employment because of Plaintiff’s 

outburst at Mobley on December 7, 2016. (MSJ at 10.) Plaintiff argues this reason is 

pretextual because Defendant “failed to fire others who yelled and cursed at a manager.”

(Resp. at 14.) Plaintiff explains that on a prior occasion, Mobley used profane language in 

a verbal argument with a service manager employed by Defendant, but Defendant did not 

fire him. (Resp. at 10.) Plaintiff’s evidence creates a genuine issue of material fact as to 

whether Defendant’s proffered reason for terminating his employment was legitimate or 

pretextual. See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“A 

showing that [an employer] treated similarly situated employees outside [a] protected class 

more favorably would be probative of pretext.”). Accordingly, Defendant is not entitled to 
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summary judgment on Plaintiff’s discriminatory discharge claim (Count I-A).

iii. Plaintiff’s Motion for Judicial Notice

Plaintiff also argues that Defendant’s decision to fire him is disability discrimination 

because conduct resulting from a disability is generally considered to be part of the 

disability. (Resp. at 7.) To support this argument, Plaintiff relies on texts he sent to Hottel

after his altercation with Mobley. In the texts, Plaintiff stated he was twenty minutes late 

for lunch and not feeling well because his blood sugar was low. (DSOF Ex. 4.)

Plaintiff moves the Court to take judicial notice that “[s]ymptoms of low blood sugar 

(hypoglycemia) tend to come on quickly and can include a person being irritable, 

argumentative or combative, changed behavior or personality (such as anger), and feeling 

weak” based on the National Institute of Diabetes and Digestive and Kidney Diseases 

website and the University of Michigan Medicine website (Doc 54 at 1.) The Court may 

take judicial notice of facts “not subject to reasonable dispute” because they are either: “(1) 

generally known within the territorial jurisdiction of the trial court or (2) capable of 

accurate and ready determination by resort to sources whose accuracy cannot reasonably 

be questioned.” Fed. R. Evid. 201. The Ninth Circuit recognizes that “[w]ell-known 

medical facts are the types of matters of which judicial notice may be taken.” See Barnes 

v. Indep. Auto. Dealers Ass’n of Cal. Health & Welfare Benefit Plan, 64 F.3d 1389, 1395 

n.2 (9th Cir. 1995).

As Defendant correctly notes, the National Institute of Diabetes and Digestive and 

Kidney Diseases website states that symptoms of low blood sugar “can vary from person 

to person” and “[s]ometimes people don’t feel any symptoms.” The University of Michigan 

Medicine website provides that when a person has “had diabetes for many years, [he] may 

not always develop symptoms of mild low blood sugar.” As the caveats on these websites 

suggest, the symptoms of low blood sugar are “subject to reasonable dispute,” and thus the 

Court declines to take judicial notice of these symptoms. See Fed. R. Evid. 201.

b. Count I-B: Reasonable Accommodations

Defendant next moves for summary judgment with respect to Plaintiff’s reasonable 
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accommodation claim under the ADA on the grounds that Defendant reasonably 

accommodated Plaintiff’s disabilities. (MSJ at 7.) Plaintiff, however, argues that although 

Defendant generally provided Plaintiff with reasonable accommodations for his diabetes 

and back issues, there were times when these accommodations were unavailable. (Resp. at 

14.) Plaintiff further contends that a genuine issue of material fact remains as to whether 

Defendant failed to reasonably accommodate Plaintiff when it ordered him to stop parking 

in the designated disabled parking space. (Resp. at 15.) 

Discrimination under the ADA includes an employer’s failure to make a reasonable 

accommodation. Dunlap v. Liberty Nat. Prods, Inc., 878 F.3d 794, 799 (9th Cir. 2017)

(internal quotations and citations omitted); accord 42 U.S.C. § 12112(b)(5)(A). A 

reasonable accommodation may include “job restructuring, part-time or modified work 

schedules, . . . and other similar accommodations for individuals with disabilities.” 42 

U.S.C. § 12111(9)(B). Whether an accommodation is reasonable is ordinarily a question 

of fact, requiring a “fact-specific, individualized analysis of the disabled individual’s 

circumstances and the potential accommodations.” Dunlap, 878 F.3d at 799. An employer, 

however, does not have a duty to “provide an employee the accommodation he requests or 

prefers, the employer need only provide some reasonable accommodation.” Zivkovic v. S. 

Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002).

The Court finds that genuine issues of material fact exist as to whether Defendant 

reasonably accommodated Plaintiff’s diabetes and back disability. Although Plaintiff 

concedes that Defendant generally provided him with reasonable accommodations for his 

diabetes and back issues, he argues that Defendant failed to provide those accommodations

100% of the time. (Resp. at 15.) Importantly, Plaintiff contends that on the day of the 

altercation between him and Mobley, Defendant failed to provide him the reasonable 

accommodation of the noon lunch time and further asserts that Mobley confronted him 

about not pulling a part that exceeded his lifting restriction. (Resp. at 15.) Whether 

Defendant reasonably accommodated Plaintiff within the meaning of the ADA, despite its

failure to always honor the noon lunchtime or provide a warehouse staff member to pull 
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certain parts for Plaintiff, is mired in questions of fact. The Court is therefore unable to 

conclude as a matter of law that Defendant reasonably accommodated Plaintiff’s diabetes 

and back issues. See Lane v. Kroger, 2019 WL 2054360, at *3 (W.D. Wash. May 9, 2019). 

Accordingly, Defendant is not entitled to summary judgment on these grounds. 

The Court also finds a genuine issue of material fact remains as to whether 

Defendant failed to provide Plaintiff a reasonable accommodation with respect to 

Plaintiff’s lung disability. Despite Plaintiff’s possession of a disabled parking placard, 

Defendant did not allow Plaintiff to park in a designated disabled parking space, and 

therefore, Plaintiff had to walk an additional three-hundred feet from his car to Defendant’s 

facility. (DSOF ¶¶ 48–49; PSOF Ex. 3 at 35.) Defendant contends that the distance between 

general employee parking and the designated disabled parking space “is not so great as to 

constitute a failure to accommodate.”

4

(MSJ at 8.) In his deposition, however, Plaintiff 

explained that he needed to park close in case he needed to access his oxygen tank. (PSOF 

Ex. 1 at 33.) Plaintiff further alleges that parking in general employee parking required him 

to “lug” his oxygen tank into the facility. (Resp. at 16.) 

Although the facts alleged by Plaintiff are tenuous in showing that parking in the 

designated disabled spot was necessary for him to perform an essential function of his job, 

the trier of fact could reasonably find that requiring Plaintiff to walk the extra distance from 

the general employee parking area constituted a failure to provide a reasonable

accommodation. Accordingly, Defendant is not entitled to summary judgment as to 

whether it reasonably accommodated Plaintiff under the ADA (Count I-B).

5

 

4 Defendant further argues Plaintiff’s reasonable accommodation claim fails 

because “he never suffered an adverse employment action in connection with the alleged 

failures to accommodate.” (MSJ at 10.) Defendant, however, convolutes the prima facie

case Plaintiff is required to establish. See Dark v. Curry Cty., 451 F.3d 1078, 1088 (9th 

Cir. 2006) (“[The employee] has the burden of showing the existence of a reasonable 

accommodation that would have enabled him to perform the essential functions of an 

available job. To avoid summary judgment, however, [the employee] need only show that 

an accommodation seems reasonable on its face.”) (citations omitted). 

5 Under Ninth Circuit precedent, employers must engage in an interactive process 

with a disabled employee once a request for an accommodation has been made. E.g., 

Zivkovic, 302 F.3d at 1089. If a reasonable accommodation would have been possible, “an 

employer cannot prevail at the summary judgment stage if there is a genuine dispute as to 
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c. Count I-C: Hostile Work Environment

With respect to Plaintiff’s hostile work environment claim, Defendant argues that 

Plaintiff failed to exhaust his administrative remedies, a prerequisite to bringing a claim in 

this Court. (MSJ at 5.) Plaintiff, however, argues that the hostile work environment claim 

was administratively exhausted because a “hostile work environment is a type of disability 

discrimination” and “[r]etaliation can include a hostile work environment.” (Resp. at 2.)

Defendant further argues that even if Plaintiff had exhausted his administrative remedies, 

he has not established a prima facie case of a hostile work environment. (MSJ at 6–7.)

To establish subject matter jurisdiction over his hostile work environment claim, 

Plaintiff must have exhausted his administrative remedies by filing a timely charge with 

the EEOC. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002). This 

requirement “giv[es] the charged party notice of the claim and narrow[s] the issues for 

prompt adjudication and decision.” Id. (internal quotes omitted). “Subject matter 

jurisdiction extends to all claims of discrimination that fall within the scope of the EEOC’s

actual investigation or an EEOC investigation that could reasonably be expected to grow 

out of a charge.” Vasquez, 349 F.3d at 644. To determine whether a plaintiff has exhausted 

claims that are not specified in an administrative charge, the Court considers factors 

including “the alleged basis of the discrimination, dates of discriminatory acts specified 

within the charge, perpetrators of discrimination named in the charge, and any locations at 

which discrimination is alleged to have occurred.” B.K.B., 276 F.3d at 1100. The Court 

construes the allegation in an EEOC charge “with utmost liberality since they are made by 

those unschooled in the technicalities of formal pleading.” Id.

The Court finds that Plaintiff did not exhaust his administrative remedies as to his

hostile work environment claim. In his EEOC charge, Plaintiff alleged two types of 

discrimination: disability and retaliation. (DSOF Ex. F at 2.) He indicated that the date of 

 

whether the employer engaged in good faith in the interactive process.” Barnett v. U.S. 

Airways, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (en banc), vacated on other grounds, 

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Because Plaintiff does not argue that 

Defendant failed to engage in the interactive process with respect to Plaintiff’s diabetes, 

back problems, or lung problems, that issue is not before the Court.
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discrimination was on December 12, 2016 and did not assert that the discrimination was a 

“continuing action.” (DSOF Ex. F at 2.) The charge states that Defendant failed to provide 

Plaintiff with a reasonable accommodation for his disability and that his employment 

would not have been terminated if Defendant had provided him with a reasonable 

accommodation. (DSOF Ex. F at 2–3.) The charge makes no mention of the disparaging 

comments Plaintiff now alleges or the individuals who made those comments. 

Based on Plaintiff’s EEOC charge, the EEOC would have no reason to investigate 

the disparaging comments that Mobley, Hottel, and other employees made to Plaintiff. See 

Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981) (“The charge must at least describe the 

facts and legal theory with sufficient clarity to notify the agency that employment 

discrimination is claimed.”) Accordingly, the Court lacks jurisdiction to hear Plaintiff’s 

hostile work environment claim. 

Even if Plaintiff had exhausted his administrative remedies, Plaintiff has not 

produced evidence sufficient to establish a prima facie case of a hostile work environment. 

A plaintiff must show: “(1) that he was subjected to verbal or physical conduct of a 

harassing nature; (2) that this conduct was unwelcome; and (3) that the conduct was 

sufficiently severe or pervasive to alter the conditions of the victim’s employment and 

create an abusive working environment.”

6 Ariz. ex rel. Horne v. Geo Grp., Inc., 816 F.3d 

1189, 1206 (9th Cir. 2016). The Court agrees with Defendant that Plaintiff has not 

established the third element. (MSJ at 6–7.) 

Conduct that is sufficiently severe or pervasive to alter the conditions of the victim’s 

employment must be both objectively and subjectively offensive. Ray v. Henderson, 217 

F.3d 1234, 1245 (9th Cir. 2000). The Court considers all circumstances, including “the 

frequency of the discriminatory conduct; its severity; whether it is physically threatening 

 

6 The Ninth Circuit has “[a]ssum[ed] without deciding” that a disability-based 

hostile work environment claim exists and that such claims would be analyzed under Title 

VII law. Garity v. APWU Nat’l Labor Org., 655 Fed. Appx. 523, 524 (9th Cir. 2016). 

Therefore, the Court “assumes here, without so holding, that a cause of action for 

harassment exists under the ADA” and analyzes the claim under applicable Title VII law. 

Roberts v. Dimension Aviation, 319 F. Supp. 2d 985, 988 (D. Ariz. 2004). 
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or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with 

an employee’s work performance.” Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th 

Cir. 2000) (internal quotations omitted). “Not every insult or harassing comment will 

constitute a hostile work environment.” Ray, 217 F.3d at 1245. Rather, “[c]onduct must be 

extreme to amount to a change in the terms and conditions of employment.” Montero v. 

AGCO Corp., 192 F.3d 856, 860 (9th Cir. 1999) (quoting Faragher v. City of Boca Raton, 

524 U.S. 775, 788 (1998)). Accordingly, “simple teasing, offhand comments, and isolated 

incidents (unless extremely serious) will not amount to discriminatory changes in the 

‘terms and conditions of employment.’” Faragher, 524 U.S. at 788 (citations omitted). 

The Court finds that Plaintiff has not produced evidence sufficient to establish the 

existence of severe or pervasive conduct that altered the conditions of his employment. 

Plaintiff contends that two of Defendant’s employees made disparaging comments about 

his disabilities on a weekly basis.7 Mobley “made fun of [Plaintiff’s] diabetes which did 

not allow him to eat cookies and other foods with processed sugar,” and another employee 

made comments about Plaintiff’s “diabetic back.” (Resp. at 3; DSOF Ex. 1 at 19.) Plaintiff 

also contends that Hottel made comments suggesting that Plaintiff was a “gimp” on a 

monthly basis. (DSOF ¶¶ 36–37.) Although insulting, these occasional comments amount 

to “simple teasing” that did not alter the conditions of Plaintiff’s employment. See 

Faragher, 524 U.S. at 788. Indeed, Plaintiff concedes that these comments only “kind of” 

impacted his ability to do his job. (DSOF ¶ 38.) Accordingly, even if Plaintiff exhausted 

his administrative remedies, he has failed to establish an element essential to his hostile 

work environment claim, and thus Defendant is entitled to summary judgment on 

Plaintiff’s hostile work environment claim (Count I-C).

B. Count II: Retaliation

a. Plaintiff’s Prima Facie Case

Defendant moves for summary judgment on Plaintiff’s retaliation claim. (MSJ at 

 

7 Plaintiff has not alleged claims based on age discrimination, and thus the Court 

only considers comments Defendant’s employees made to Plaintiff regarding his 

disabilities. 
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11.) Plaintiff argues that the texts he sent to Hottel were a request for a reasonable 

accommodation from Defendant’s policy of not tolerating workplace arguments. (Resp. at 

17.) Plaintiff further contends that Defendant retaliated against Plaintiff by subjecting him 

to a hostile work environment. (Resp. at 17.) Defendant, however, argues that the texts are

not protected activity, (Reply at 8), and that Plaintiff cannot establish a causal connection 

between any of his alleged protected activity and his termination. (MSJ at 12.)

Under the ADA, “[n]o person shall discriminate against any individual because such 

individual has opposed any act or practice made unlawful by this chapter.” 42 U.S.C. 

§ 12203(a). To successfully present a prima facie case of retaliation, a plaintiff must 

establish “(1) that he or she engaged in or was engaging in activity protected by the ADA, 

(2) the employer subjected him or her to an adverse employment decision, and (3) that 

there was a causal link between the protected activity and the employer’s action.” Barnett, 

228 F.3d at 1121. A plaintiff is considered to have engaged in protected activity when, for 

example, he pursues his rights under the ADA, Pardi v. Kaiser Found. Hosps., 389 F.3d 

840, 850 (9th Cir. 2004), or when he informally reports discrimination to a supervisor, see 

Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 

2000). 

The Court can infer a causal link “from circumstantial evidence such as the 

employer’s knowledge of the protected activities and the proximity in time between the 

protected activity and the adverse action.” Dawson v. Entek Intern., 630 F.3d 928, 936 (9th 

Cir. 2011) (finding a causal link between a plaintiff’s complaint to human resources and 

her termination forty-eight hours later). When temporal proximity is the only proffered

evidence of retaliation for purposes of a prima facie case, “the temporal proximity must be 

very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (internal quotes 

omitted) (emphasis added). 

The Court first considers whether the texts Plaintiff sent to Hottel following the 

verbal altercation constitute protected activity. The texts provide: 

You and I need to sit down and have a discussion about Travis [Mobley] over 
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reaching to be a[n] assistant manager[.] . . . I was late like 20 minutes for my 

lunch not feeling too good because my sugar was low . . . I did lose my temper 

with Travis due to him and Sam and Lonnie making this a hostile work 

environment. . . . [T]he work environment has changed[.] I feel like I am 

working with kids[;] loud music[,] loud talking[,] huddling together watching 

videos is not productive. . . . I feel like my medical condition had a lot with 

him making me lose my temper, but we have spoke multiple times about this.

Maybe you want me to resign my position when you get back.

(DSOF Ex. 4.) 

Defendant correctly notes, however, that Plaintiff did not request an accommodation 

from Defendant’s policy of not tolerating workplace arguments in those text messages. 

(Reply at 8.) At no point in the texts did Plaintiff give notice to Defendant of his desire for 

accommodation from the company’s policy. See Barnett, 228 F.3d at 1114. Rather, 

Plaintiff merely requested an opportunity to discuss Mobley’s “over reaching” as assistant 

manager. To the extent the texts were a request for reasonable accommodation, the Ninth 

Circuit has noted that because “a reasonable accommodation is always prospective, an 

employer is not required to excuse past misconduct even if it is the result of the individual’s 

disability.” Alamillo v. BNSF Railway Co., 869 F.3d 916, 922 (9th Cir. 2017) (quoting 

EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under 

the Americans with Disabilities Act (EEOC ADA Enforcement Guidance), available at 

2002 WL 31994335, at *25). Accordingly, Plaintiff’s texts to Hottel are not protected 

activity. 

Furthermore, although it is undisputed that Plaintiff’s prior requests for 

accommodation are protected activity, those requests occurred in November 2015, thirteen 

months before Defendant terminated Plaintiff’s employment. Plaintiff offers no other 

evidence to establish a causal link between the requests for reasonable accommodation he

made in November 2015 and his termination. The factual setting suggests that the 

altercation between Plaintiff and Mobley on December 7, 2016—not Plaintiff’s request for 

accommodation in 2015—influenced Defendant’s decision to terminate Plaintiff’s 

employment. See Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003) (“Whether 

an adverse employment action is intended to be retaliatory is a question of fact that must 
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be decided in the light of the timing and the surrounding circumstances.”). Thus, the Court 

concludes no reasonable jury would find a causal link between Plaintiff’s November 2015 

requests for accommodation and his termination. 

Finally, Plaintiff contends Defendant retaliated against him by subjecting him to a 

hostile work environment. Harassment as retaliation, however, “is actionable only if it is 

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and 

create an abusive working environment.” Ray, 217 F.3d at 1245. As explained in detail 

above, Plaintiff failed to produce evidence sufficient to establish a prima facie case of 

hostile work environment. Accordingly, the Court grants Defendant’s Motion for Summary 

Judgment as to Plaintiff’s retaliation claim under the ADA (Count II).

C. Count III: ACRA Claims

With regard to Plaintiff’s parallel claims under the ACRA, Arizona courts have held 

that the ACRA is “generally identical” to the applicable provisions of the ADA, and thus 

federal case law is persuasive in interpreting the ACRA. Bodett v. CoxCom, Inc., 366 F.3d 

736, 742 (9th Cir. 2004). For the same reasons that Defendant is entitled to summary 

judgment on Plaintiff’s hostile work environment claim and retaliation claim under the 

ADA, Defendant is also entitled to summary judgment on Plaintiff’s parallel hostile work 

environment claim and retaliation claim under the ACRA. For the same reasons Defendant 

is not entitled to summary judgment on Plaintiff’s discriminatory discharge claim and 

reasonable accommodation claim under the ADA, Defendant is not entitled to summary 

judgment on Plaintiff’s parallel claims under the ACRA.

IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary 

Judgment (Doc. 45) as to Plaintiff’s hostile work environment claim (Count I-C) and 

retaliation claim (Count II) under the ADA and Plaintiff’s parallel claims under ACRA,

and denying the Motion as to Plaintiff’s discriminatory discharge claim (Count I-A) and 

reasonable accommodation claim (Count I-B) under the ADA and Plaintiff’s parallel 

claims under ACRA. This matter will proceed to trial on Plaintiff’s remaining claims 

against Defendant, and the Court will set a Pretrial Conference by separate Order. 
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IT IS FURTHER ORDERED denying Plaintiff’s Motion for Judicial Notice (Doc. 

54).

Dated this 28th day of October, 2019. 

Honorable John J. Tuchi

United States District Judge