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1138 NORTH ALMA SCHOOL ROAD, SUITE 101

MESA, ARIZONA 85201

Telephone: 480.461.5300 | Fax: 480.833.9392

David R. Schwartz - #009264

das@udallshumway.com

Kimberly R. Davis - #030210

krd@udallshumway.com

Attorneys for Defendant Maricopa 

County Community College District

Maria Wise and Vivian Miranda

UNITED STATES DISTRICT COURT

DISRICT OF ARIZONA

James Rogers and Judy Ellen Rogers,

Plaintiffs,

v.

Maricopa County Community College 

District, a political subdivision of 

Arizona; Maria Wise, an individual; and

Vivian Miranda-Strawbridge, an 

individual,

Defendants.

NO. CV 2018-00605 PHX-GMS

STATEMENT OF FACTS IN 

SUPPORT OF MOTION FOR 

PARTIAL SUMMARY JUDGMENT

Defendants Maricopa County Community College District (“District”), Maria 

Wise, and Vivian Miranda-Wendelken (incorrectly named in the caption as Vivian 

Miranda-Strawbridge her former name) submit this statement of facts in support of 

motion for partial summary judgment. The facts are stated in the light most favorable to 

Plaintiff and may not be the true facts. Defendants reserve the right to challenge any 

fact stated herein in connection with any other motion or at any hearing or trial:

1. The District is a political subdivision of the State of Arizona created 

pursuant to A.R.S. § 15-1402(A). (Judicial Notice)1(Dkt 1, Complaint, p. 2, Parties, ¶ 

2)

 

1 This Court can take judicial notice of state statutes and their legislative history. 

Chaker v. Crogan, 428 F.3d 1215, 1223 n. 8 (9th Cir. 2005); Kelleher v. Kelleher, 2014 

Case 2:18-cv-00605-DWL Document 26 Filed 06/05/18 Page 1 of 9
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2. Plaintiff James Rogers (hereinafter “Plaintiff”) was employed at GateWay 

Community College (“GateWay”), one of the colleges operated by the District, as the 

Coordinator of Student Success Programs in charge of the Disability Resources & 

Services (“DRS”) office at GateWay’s main Washington campus. In that position he 

was responsible for identifying student needs relating to disability – through interviews, 

documentation, and perceived discrimination – and providing mandatory services, 

including issuing accommodations, and serving as an advocate for disabled students. 

(Ex. 2, Castellanos declaration ¶ 4, 14 and ex. H) (Dkt 1, Complaint, p. 3, General 

Allegations, ¶ 5)

3. Defendant Maria Wise (hereinafter “Dr. Wise”) is and was the Vice 

President of Academic & Student Affairs at GateWay. (Dkt 1, Complaint, p. 2, Parties, 

¶ 4)

4. Defendant Vivian Miranda-Wendelken (“Dr. Miranda”) is the Dean of 

Student Services & Retention at GateWay. Dr. Miranda directly supervised Plaintiff 

and the DRS office. Dr. Miranda began working at GateWay on September 12, 2016. 

Dr. Miranda’s immediate supervisor at GateWay was and is Dr. Wise. (Dkt 1, 

Complaint, p. 2, Parties, ¶ 5) (Ex. 1, Miranda declaration ¶ 2-6)

5. The actions of Dr. Wise and Dr. Miranda alleged by Plaintiff were 

performed in the course and scope of their employment with the District. (Dkt 1, 

Complaint, p.14, General Allegations, ¶ 84)

6. Prior to March 23, 2016, Plaintiff was allegedly subjected to a hostile 

work environment by faculty and administrators. Plaintiff claims he told GateWay 

President Gonzales in late January and early February 2016 what was happening, and 

that he was allegedly told that nothing would change the faculty’s attitude. (Dkt 1, 

Complaint, p.7, General Allegations, ¶ 14, 30-35)

 

WL 94197, *2 (N.D. Cal. 2014), citing, Lamar v. Micou, 114 U.S. 218, 223 (1885); 

Fed. R. Evid. 201.

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7. Prior to March 23, 2016, although previously promised a teaching job at 

GateWay, Plaintiff was not hired to teach a social work class at GateWay by Susan 

Mills, the Department Chair of Arts & Humanities, Social and Behavioral Sciences 

Department, because the faculty “did not like” Plaintiff because of his role as DRS 

Manager. (Dkt 1, Complaint, p.7, General Allegations, ¶ 33-35)

8. On or about March 23, 2016, Plaintiff suffered a heart attack because of

the public humiliation of not being hired to teach the social work class at GateWay and 

the stress of the hostile working environment. (Dkt 1, Complaint, p.7, General 

Allegations, ¶ 32, 35)

9. As of February 6, 2017, there was no person filling the position of DRS 

Manager for GateWay’s Central City or Deer Valley campuses. (Ex. 1, Miranda 

declaration ¶ 8)

10. On February 6, 2017, Plaintiff left work indicating he did not feel well 

and he has not returned to GateWay since that time. Plaintiff claims he had a nervous 

breakdown and suffered cardiovascular incidents prior to that date due to work related 

stress. (Ex. 1, Miranda declaration ¶ 7) (Dkt 1, Complaint, General Allegations, p. 8, 

12, ¶ 45, 68)

11. After February 6, 2017, Dr. Miranda and Dr. Wise had no direct

communication with Plaintiff. The Complaint does not allege any direct communication 

by either Dr. Miranda or Dr. Wise with Plaintiff after Plaintiff stopped working. (Ex. 1, 

Miranda declaration ¶ 15) (Dkt 1, Complaint)

12. Retroactive to February 6, 2017, Plaintiff applied for and was granted 

FMLA leave. One FMLA block leave requirement, which Plaintiff initialed, stated: “I 

understand that while absent on FMLA, I am not permitted to do any work on behalf of 

MCCCD.” Another one stated: “I understand that I am required to provide a ‘Fitness 

for duty’ form prior to returning to work . . . I will provide the form to the Leaves 

Administration office three business days prior to returning”. Plaintiff’s 12 weeks of 

FMLA leave were exhausted as of June 30, 2017 after excluding two weeks of separate 

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bereavement/catastrophic leave due to the death of Plaintiff’s grandson. Plaintiff was 

then shifted to ADA leave because his doctors indicated that he was unable to work due 

to physical and/or mental impairments. (Ex. 2, Castellanos declaration ¶ 5-9 and ex. AC)

13. Plaintiff’s medical doctor initially certified on or about February 10, 2017 

that Plaintiff was fully incapacitated starting February 6, 2017 and the estimated end of 

the incapacity would be April 30, 2017. This certification was presented by Plaintiff to 

the District and based upon it the District set May 1, 2017 as Plaintiff’s initial expected 

return to work date. (Ex. 2, Castellanos declaration ¶ 5 and ex. A)

14. On or about April 25, 2017 Plaintiff’s medical doctor certified that 

Plaintiff was fully incapacitated and he estimated Plaintiff would not return to work 

before August 1, 2017. This certification was presented by Plaintiff to the District and 

based upon it the District set August 2, 2017 as Plaintiff’s new expected return to work 

date. (Ex. 2, Castellanos declaration ¶ 6 and ex. B)

15. On or about July 19, 2017 Plaintiff’s psychologist wrote that Plaintiff 

should not return to work at that time and his return to work date should be set for 

October 1, 2017. This certification was presented by Plaintiff to the District and based 

upon it the District set October 2, 2017 as Plaintiff’s amended expected return to work 

date. (Ex. 2, Castellanos declaration ¶ 10 and ex. D)

16. On or about October 29, 2017, Plaintiff’s psychologist indicated that 

Plaintiff was still not ready to return to work and she could not predict when he will be 

recovered enough to return to work. On or about November 6, 2017, Plaintiff’s 

psychologist indicated that he was still not ready to return to work and that the goal was 

for Plaintiff to be able to return to work on January 1, 2018. (Ex. 2, Castellanos 

declaration ¶ 11-12 and ex. E-F)

17. The District hired a temporary employee, Jill Nico, to serve effective in 

late June 2017 as a DRS Manager for GateWay. This person is under a different 

position number than Plaintiff which means her salary is paid on a different line in the 

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budget. This person oversees the DRS office at GateWay’s two sister campuses and

helps at the main Washington campus. (Ex. 1, Miranda declaration ¶ 8) (Ex. 2, 

Castellanos declaration ¶ 13-16 and ex. G-I)

18. Plaintiff’s position as the GateWay Coordinator of Student Success 

Programs in charge of the DRS office at the Washington campus has remained open 

during the entire time Plaintiff has been on leave since February 6, 2017. Plaintiff could 

have returned to fill his old position at any time he was able and willing to do so. (Ex. 

1, Miranda declaration ¶ 14) (Ex. 2, Castellanos declaration ¶ 16 and ex. I)

19. As of February 6, 2017, Plaintiff’s personal office was located at the far 

end of a hallway. While he was gone on leave, the office was not moved although Dr. 

Miranda believed and stated it would be better if the office had a line of sight to the 

DRS front counter and surrounding area. (Ex. 1, Miranda declaration ¶ 11-13) (Dkt 1, 

Complaint, General Allegations, p.11, ¶ 62)

20. Plaintiff established an internship program with ASU’s School of Social 

Work whereby students would work in the DRS office at GateWay to provide a learning 

experience for such interns. (Dkt 1, Complaint, p. 8, General Allegations, ¶ 47)

21. While Plaintiff was on leave, Rueben Saenz was substituted in for 

Plaintiff as the temporary Field Supervisor in the ASU Internship program after Saenz 

obtained the proper certification. Saenz has a MSW degree which was required for the 

position. This was done to allow the program to continue and it did continue under 

Saenz. If Plaintiff had returned to GateWay, he could have resumed his place as Field 

Supervisor in the program. (Ex. 3, Saenz declaration ¶ 3-5)

22. In mid-March 2017, four ASU interns were placed into departments other 

than DRS because they expressed the desire to work for those departments. This was 

done with the concurrence of ASU and after Saenz met and spoke with each ASU intern

as to their preference. One of the four ASU interns who was assigned to another 

department did later come back and work for DRS. Two ASU interns continued to 

work in DRS. One ASU intern was removed from the internship program before Saenz 

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took over for Plaintiff. Except to the extent placing interns with other departments 

could be considered a change, no other changes were made to the ASU Internship 

program. (Ex. 3, Saenz declaration ¶ 6-9)

23. On or about April 3 and/or 6, 2017, Dr. Miranda instructed Cindi Tanner, 

the DRS Office Coordinator II, to remove Plaintiff’s personal things (which were a 

coffee mug, two photos in frames, and a coffee warmer) from Plaintiff’s office and put

them into storage. Those items could easily be replaced when Plaintiff returned to his 

former position. (Dkt 1, Complaint, p.11, General Allegations, ¶ 60) (Ex. 1, Miranda 

declaration ¶ 10)

24. On June 29, 2017 Plaintiff’s lawyers mailed and emailed a letter which 

indicated it was a notice of claim pursuant to A.R.S. § 12-821.01. The letter alleged 

claims of ADA retaliation, intentional infliction of emotional distress, and interference 

with FMLA rights. A supplement/correction to the letter was mailed and emailed on 

July 1, 2017. Regarding the FMLA claim, the letter stated that Plaintiff’s FMLA rights 

were violated by the District hiring a new DRS Manager and clearing out his office 

because it functionally made it impossible for Plaintiff to return to work. (Ex. 4, Hong 

declaration ¶ 2-5 and ex. A-B)

25. On October 4, 2017 Plaintiff signed and filed his Charge of 

Discrimination with the EEOC. Attached to the Charge was a letter dated September 8, 

2017. The charge and the attached letter allege discrimination and retaliation by the 

faculty and administrators at GateWay. The charge does expressly reference the alleged 

removal of the internship program from Plaintiff’s purview and the denial of the 

opportunity to teach a course. The charge and the letter do not mention anything about 

Plaintiff returning to work and any alleged failure to reasonably accommodate his 

disability when Plaintiff was able to return to work. (Ex. 4, Hong declaration ¶ 6-7 and 

ex. C)

26. On November 6, 2017, Plaintiff submitted to the District a letter from his 

psychologist. Plaintiff’s psychologist “strongly recommend[ed] that Mr. Rogers not 

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return to his previous job” at GateWay. The letter indicated the goal was for Plaintiff to 

return to work on January 2, 2018. (Ex. 2, Castellanos declaration ¶ 12 and ex. F)

27. Beginning on or about October 6, 2017, Plaintiff has worked with District 

HR representatives, who were located at the District’s administrative headquarters in 

Tempe, regarding his potential return to work from his ADA leave. Plaintiff has 

continued to work with District HR in Tempe to try to locate a vacant position for which 

he was qualified and which he wanted to pursue. Plaintiff did not have to work with 

anyone at GateWay regarding his return to work and possible reassignment. (Ex. 2, 

Castellanos declaration ¶ 17-18) (Ex. 6, Espinoza declaration ¶ 2-4)

28. Plaintiff was offered but declined the opportunity to be reinstated to his 

former position at GateWay when he was able to return to work. (Dkt 1, Complaint, 

p.11, General Allegations, ¶ 99)

29. On November 14, 2017, Plaintiff indicated he would not return to 

GateWay to work and his request for reasonable accommodation was to be reassigned 

to a different college. (Ex. 6, Espinoza declaration ¶ 5-7 and ex. A) 

30. On November 30, 2017, at the request of the Plaintiff, the EEOC 

terminated its investigation and issued a right to sue letter to Plaintiff. (Ex. 5, Schwartz 

declaration ¶ 3 and ex. A)

31. On December 21, 2017, in a phone conversation with District Associate 

General Counsel, Plaintiff’s attorney James Barton II stated that Barton believed 

Plaintiff will never return to GateWay. (Ex. 7, Currey declaration ¶ 3 and ex. A)

32. On February 23, 2018, Plaintiff filed this action alleging claims for 

retaliation under the ADA and the Rehabilitation Act, intentional infliction of emotional 

distress, interference with his FMLA right to reinstatement, and failure to provide a 

reasonable accommodation in the form of reassignment when Plaintiff was available to 

return to work in January 2018. (Dkt 1, Complaint)

33. Plaintiff alleges that on February 13, 2017, while he was on FMLA leave, 

Dr. Miranda made certain statements about him to Cindi Tanner, the DRS Office 

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Coordinator II. The Complaint alleges that Dr. Miranda allegedly stated Plaintiff had 

“gone over our heads” numerous times, referred to wrong-doing by Plaintiff and 

indicated incorrect information was given by Plaintiff to Dr. Miranda. These alleged 

statements were made to sway Tanner to trust Dr. Miranda as the acting DRS Manager

while Plaintiff was on leave. (Dkt 1, Complaint, p. 9-10, ¶ 54) 

34. Plaintiff alleged that Dr. Miranda on February 27, 2017 stated to Cindi 

Tanner that Plaintiff’s health condition was something he had before Dr. Miranda came 

to GateWay. (Dkt 1, Complaint, p. 10, ¶ 55)2 

35. Plaintiff alleged on March 28, 2017, while at the DRS front counter, Dr. 

Miranda claimed that Plaintiff’s proposal for area usage and camera installation were 

rejected because they were untimely. (Dkt 1, Complaint, p. 10, ¶ 57)

36. Plaintiff alleged that on April 11, 2017, Dr. Miranda stated to Cindi 

Tanner that Dr. Miranda and Dr. Wise were mad when Plaintiff moved his office and 

that it should be where there is a line of sight to the DRS front counter. (Dkt 1, 

Complaint, p. 11, ¶ 62)

37. Plaintiff alleged that on May 5, 2017, Dr. Miranda stated to Cindi Tanner 

that Plaintiff lied about the length of the 2017 class Tanner was taking at ASU being 

only five weeks. (Dkt 1, Complaint, p. 11-12, ¶ 63)

38. Plaintiff alleged that on May 9, 2017, Dr. Miranda stated in a public 

forum of disability professionals from throughout the District that the DRS department 

at GateWay was dysfunctional and rife with student files without documentation. (Dkt 

1, Complaint, p. 12, ¶ 64)

39. Plaintiff alleged that on May 11, 2017, Dr. Miranda stated to Cindi Tanner

that Plaintiff created practices that needed improvement, poorly managed DRS services, 

and created an employment contract with Jessica Galarza which was improper, and 

other failings by Plaintiff. (Dkt 1, Complaint, p. 12, ¶ 66)

 

2 This was a true statement as Plaintiff had a heart attack in March 2016, and Dr. 

Miranda only came to GateWay in September 2016. (See DSOF ¶ 4, 8)

Case 2:18-cv-00605-DWL Document 26 Filed 06/05/18 Page 8 of 9
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DATED: June 5, 2018.

UDALL SHUMWAY PLC

/s/ David R. Schwartz 

David R. Schwartz

Kimberly R. Davis 

1138 North Alma School Road

Suite 101

Mesa, AZ 85201

Attorneys for Defendant Maricopa County 

Community College District, Wise and Miranda

CERTIFICATE OF SERVICE

I hereby certify that on June 5, 2018, I electronically filed the attached document

using ECF for filing and transmitted the document through ECF to the following 

registered ECF users:

Israel G. Torres

James E. Barton, II

Saman Golestan

TORRES LAW GROUP, PLLC

2239 W. Baseline Rd.

Tempe, AZ 85283

Attorneys for Plaintiff

/s/ Kimberly Kershner

5153806.1

109883.024

Case 2:18-cv-00605-DWL Document 26 Filed 06/05/18 Page 9 of 9