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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. CV2018-00605 PHX-GMS

DEFENDANTS’ MOTION FOR 

PARTIAL SUMMARY JUDGMENT

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

Wise, and Vivian Miranda-Wendelken (hereinafter “Miranda” who was formerly known 

as Vivian Miranda-Strawbridge) hereby move for partial summary judgment on the 

following claims and issues:

(1) The FMLA claim (Third Claim for Relief) must be dismissed throughout his 

12 weeks of FMLA protected leave and when it ended in June 2017 Plaintiff 

was not able to and did not even request to return to work, so he was not 

entitled to reinstatement under the FMLA;

(2) If an FMLA claim (Third Claim for Relief) can still be maintained, summary 

judgment should be granted because the changes to Plaintiff’s old position 

while he was on FMLA leave do not constitute an FMLA violation;

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(3) The ADA discrimination claim (Third Claim for Relief) for failure to 

reasonably accommodate Plaintiff’s disability when he was finally able to 

return to work must be dismissed because it was not administratively 

exhausted with the EEOC before this action was filed; 

(4) The state law tort claim for intentional infliction of emotional distress 

(Second Claim for Relief) is barred or limited under the applicable one-year 

statute of limitations and/or the notice of claims statute.

There are no genuine issues of material fact and Defendants are entitled to judgment as 

a matter of law on these discrete issues and claims. This motion is supported by the 

contemporaneously filed Statement of Facts in Support of Defendants’ Motion for 

Partial Summary Judgment (“DSOF”).

I. THE FMLA CLAIM IN THE THIRD CLAIM FOR RELIEF SHOULD 

BE DISMISSED IN ITS ENTIRETY

As part of the Third Claim for Relief, Plaintiff James Rogers (hereinafter 

“Plaintiff”) sued the District1 under the FMLA alleging interference with Plaintiff’s 

FMLA rights due to a failure to reinstate him under 29 U.S.C. § 2614(a)(1). (Dkt 1, 

Complaint ¶ 94-100) The FMLA creates two interrelated substantive employee rights: 

first, the employee has a right to use a certain amount of leave for protected reasons, and 

second, the employee has a right to return to his or her job or an equivalent job on return 

from protected leave. Sanders v. City of Newport, 657 F.3d 772, 777 (9th Cir. 2011). 

Under § 2615(a)(1), it is “unlawful for any employer to interfere with, restrain, or deny 

the exercise of or the attempt to exercise” the substantive rights guaranteed by FMLA. 

29 U.S.C. § 2615(a)(1). When a party alleges a violation of § 2615(a)(1), it is known as 

an “interference” or “entitlement” claim. Sanders v. City of Newport, 657 F.3d 772, 

777-778 (9th Cir. 2011). The claim here is an interference claim. (Dkt 1, Complaint, p. 

15-16, ¶ 95-100) 

 

1 The Third Claim for Relief is not asserted against Defendants Drs. Wise or Miranda. 

(Dkt 1, Complaint, p. 15, ¶ 94) 

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The FMLA provides: “any eligible employee who takes leave under section 2612 

of this title for the intended purpose of the leave shall be entitled, on return from such 

leave-- (A) to be restored by the employer to the position of employment held by the 

employee when the leave commenced; or (B) to be restored to an equivalent position 

with equivalent employment benefits, pay, and other terms and conditions of 

employment. 29 U.S.C. § 2614(a)(1). An employee’s prima facie case where the 

employer allegedly fails to reinstate the employee requires the employee to establish 

that: (1) he was eligible for the FMLA’s protections, (2) his employer was covered by 

the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient 

notice of his intent to take leave, and (5) his employer denied him FMLA benefits to 

which he was entitled.” Id. at 778. The issue here is the fifth element.

The right to reinstatement is not without limit. One relevant limitation is that the 

employee at the end of the FMLA protected leave must be able to return to work and 

perform the essential functions of the position at that time.

2

 To be accorded the right of 

reinstatement, federal regulations provide:

If the employee is unable to perform an essential function of 

the position because of a physical or mental condition, 

including the continuation of a serious health condition or an 

injury or illness also covered by workers' compensation, the 

employee has no right to restoration to another position 

under the FMLA. The employer's obligations may, however, 

be governed by the Americans with Disabilities Act (ADA), 

as amended. See § 825.702, state leave laws, or workers' 

compensation laws.

29 C.F.R. § 825.216(c). Courts have made clear that if a plaintiff at the end of their 

FMLA leave time is unable to perform essential functions, they are not entitled to 

reinstatement under the FMLA. Jackson v. Simon Property Group, Inc., 795 F. Supp. 

2d 949, 960-961 (N.D. Cal. 2011) (plaintiff not entitled to reinstatement when doctors 

 

2

If an employee requests reinstatement before the end of his FMLA leave, the employer 

bears the burden to demonstrate it did not permit reinstatement due to an inability to 

perform an essential function. Sanders v. City of Newport, 657 F.3d 772, 780 (9th Cir. 

2011). Plaintiff made no such request here before the end of his FMLA leave. (DSOF ¶ 

12-16)

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reports given to employer showed he was unable to work and extended his leave beyond 

limit); Clink v Oregon Health & Sci. Univ., 2014 WK 3850013, * 4 (D. Or. 2014) (no 

actionable FMLA violation where employee is unable to perform the essential functions 

of his job before the FMLA leave period ends). The Sixth Circuit in Hoge v. Honda of 

America Mfg., Inc., 384 F.3d 238 (6th Cir. 2004), rejected the argument that an 

employee has even a reasonable time after the expiration of their FMLA leave to request 

reinstatement under the FMLA. Id. at 247, 249. 

Here Plaintiff could and did not request reinstatement for more than six months 

after exhaustion of his FMLA leave. Plaintiff exhausted his 12 weeks of FMLA leave3

at the end of June 2017 and was transitioned by the District to ADA leave. (DSOF ¶ 

12) Plaintiff’s doctors certified that he was unable to return to work from February 6, 

2017 through January 1, 2018. (DSOF ¶ 13-16) Attendance to work duties is 

recognized as an essential function of any job. Samper v. Providence St. Vincent 

Medical Center, 675 F.3d 1233, 1237 (9th Cir. 2012); Rios-Jimenez v. Principi, 520 

F.3d 31, 42 (1st Cir. 2008). Plaintiff was not entitled to reinstatement under the FMLA 

because he was unable to fulfill the essential functions of his position (he was unable to 

work at all) throughout his protected FMLA leave, so the FMLA claim in the Third 

Claim for Relief should be dismissed as frivolous. (DSOF ¶ 12-16)

Plaintiff appears to also be claiming that because changes were made to his 

position a FMLA violation may have occurred while he was on FMLA leave (so up to 

June 30, 2017) before he was able to return. The right to reinstatement is to either an 

employee’s old position or to an equivalent position, and it accrues only when the 

employee returns from the FMLA protected leave. 29 U.S.C. § 2614(a) (right to 

reinstatement “on return from such leave” under section 2612). Plaintiff’s right to take 

FMLA leave was not interfered with in any way as he successfully used all 12 weeks of 

FMLA protected leave. (DSOF ¶ 12) Plaintiff and his doctor said he was unable to and 

 

3 The FMLA provides for up to 12 workweeks of leave during a 12-month period. 29 

U.S.C. § 2612(a)(1).

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he should not return to his old position at GateWay (DSOF ¶ 13-16, 26-27, 29) and he 

even declined to return to his old position. (DSOF ¶ 28) So any change to his old 

position could not give rise to a FMLA claim as he would not be affected by changes to 

a position he would not and did not re-take. See Ragsdale v. Wolverine World Wide, 

Inc., 535 U.S. 81, 90-91 (2002) (invalidating regulations which purported to require 

reinstatement under the FMLA absent a showing of “consequential harm”); Liston v. 

Nevada ex rel Dept. Bus. & Ind., 311 Fed. Appx 1000, 1002 (9th Cir. 2009) (the FMLA 

provides no relief unless the employee has been prejudiced by the violation). Further, 

the right to reinstatement is not necessarily to an employee’s old position, but the 

employer can instead put them in an equivalent position. 29 U.S.C. § 2614(a)(1). So 

mere changes to Plaintiff’s old position do not violate the FMLA either particularly here 

where Plaintiff was not able to and did not return to his old position.

Even while an employee is on FMLA leave, deminimis changes can be made to 

their position for those that do return to work. Only a significant change in duties, 

salary or benefits could violate the FMLA for an employee who returns before the 

exhaustion of their FMLA protected leave. See Cates v. Public Employees Retir. Sys. 

Of Nev., 357 Fed. Appx. 8, * 10 (9th Cir. 2009). It is a mixed question of law whether 

changes are de minimis or significant enough to support a FMLA violation for making 

the position no longer equivalent. Bozarth v. Sunshine Chevrolet-Oldsmobile of Tarpon 

Springs, Inc., 2010 WL 1085720, * 12 (M.D. Fla. 2010). It appears from the allegations 

in the Complaint that Plaintiff is claiming the following constitutes impermissible 

interference with his FMLA right to reinstatement to his old position by making the 

following changes: (1) someone was hired to fill his position; (2) Dr. Miranda suggested 

that Plaintiff’s office should be moved to where it has a line of sight to the DRS front 

counter; (3) his personal items were removed from his personal office; and (4) the ASU 

Internship program was restructured. (Dkt 1, Complaint, General Allegations, p. 8-9, 

11, 14, 16, ¶ 46-49, 59-60, 62, 80, 97)

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Hiring a substitute employee for one on FMLA leave is not an FMLA violation 

even if the person is a permanent substitute. Brown v. JC Penney Corp., 924 F. Supp. 

1158, 1163 (S.D. Fla. 1996). That is because the FMLA allows an employer the option 

of returning the employee to their old position or an equivalent position. 29 U.S.C. § 

2614(a)(1). Also, for long leaves it would make no sense that an employer cannot hire a 

temporary replacement. In any event, no replacement was hired for Plaintiff’s position 

and it remained opened for whenever Plaintiff was able and willing to return to it. 

(DSOF ¶ 17-18) Plaintiff was a Coordinator of Student Success Program with a 

specific budget line position number, while Jill Nico was hired temporarily as the DRS 

Manager at different campuses under a different budget position number. (DSOF ¶ 17-

18) Plaintiff was offered his old job back, but he declined the offer. (DSOF ¶ 28) 

Plaintiff also seems to be asserting that he could not return to his old position 

because it was no longer equivalent as required by the FMLA. Because Plaintiff was 

never cleared to return to work by the end of his FMLA protected leave, this issue is 

moot. Nor are the matters asserted a significant change to Plaintiff’s old position. 

Plaintiff suggests that a statement was made that his office should be relocated, and his 

personal items were taken so effectively he could not return to work. In Bozarth v. 

Sunshine Chevrolet-Oldsmobile of Tarpon Springs, Inc., 2010 WL 1085720 (M.D. Fla. 

2010), the Court found there was no FMLA violation and the following changes to the 

employee’s old position’s job were de minimis: Plaintiff’s work area was in a different 

room and Plaintiff was assigned to learn new cashier duties. Id. at * 12. Thus, moving 

Plaintiff’s office in the same area but closer to the DRS front counter would not be a 

FMLA violation even if it occurred. Id.; see Hillstrom v. Best Western TLC Hotel, 265 

F.Supp.2d 117, 126–27 (D. Mass. 2003) (loss of private office and change of reporting 

line de minimis). Plaintiff’s office, however, remained exactly where it was as of the 

day he went out on leave and it was not moved. (DSOF ¶ 19) While Plaintiff’s 

personal items (coffee mug, two photos in frames, and a coffee warmer) were removed

from his former office and placed into storage, they could easily be moved back when 

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Plaintiff returned to work. (DSOF ¶ 23) There was no significant change to Plaintiff’s

old position to support a claimed violation of the FMLA.

Limited reassignment of duties also does not constitute a significant change in 

one’s employment status in a position. See Cates v. PERS of Nev., 357 Fed. Appx. 8, * 

10 (9th Cir. 2009). When Plaintiff went out on leave, Rueben Saenz was brought in to 

serve as the Field Supervisor for the ASU internship program as Plaintiff had previously 

done. (DSOF ¶ 20-21) Saenz was brought in due to his MSW credential which was 

required for that position. (DSOF ¶ 21) So without Saenz coming in to serve as the 

temporary Field Supervisor for the internship, the program would have had to stop. 

Four interns from ASU were initially moved from DRS to other departments based 

upon the expressed desire of the interns, although one of them did return to work for 

DRS. (DSOF ¶ 22) Two ASU interns remained working in the DRS office. (DSOF ¶ 

22) The internship was not restructured, and any changes were not a significant and 

adverse change to Plaintiff’s job duties. If Plaintiff had returned to work at GateWay, 

he would have resumed serving as the Field Supervisor for the ASU internship program. 

(DSOF ¶ 20-21)

During Plaintiff’s FMLA leave, his old position remained available with 

equivalent pay, benefits, and duties. Any changes were de minimis and were simply the 

result of the District, as employer, trying to see that the DRS office continued to 

perform during Plaintiff’s leave. The FMLA claim, which is part of the Third Claim 

for Relief, is frivolous and should be dismissed.

II. THE DISCRIMINATION CLAIM IN THE THIRD CLAIM FOR 

RELIEF SHOULD BE DISMISSED AS IT WAS NOT 

ADMINISTRATIVELY EXHAUSTED

The Third Claim for Relief also makes an ADA failure to reasonably 

accommodate Plaintiff’s disability claim against the District based upon his treatment 

when he was able to return to work in January 2018. (Dkt 1, Complaint ¶ 98-100) A 

plaintiff must pursue a charge of discrimination or retaliation with the EEOC before 

they file suit under the ADA within the same time limits as apply to Title VII claims. 

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Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir. 2006). To establish subject matter 

jurisdiction for this Court, a plaintiff must have exhausted their administrative remedies 

by filing a timely charge with the EEOC before they file suit. Vasquez v. County of Los 

Angeles, 349 F.3d 634, 644 (9th Cir. 2003). This serves the important purposes of 

giving the charged party notice of the claim and narrowing the issues for prompt 

adjudication and decision. Freeman v. Oakland Unified School District, 291 F.3d 632, 

636 (9th Cir. 2002). Subject matter jurisdiction extends over all allegations of 

discrimination that either fell within the scope of the EEOC’s actual investigation or an 

EEOC investigation which can reasonably be expected to grow out of the charge of 

discrimination. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002).

In assessing whether a claim was brought before the EEOC, incidents of 

discrimination not included in an EEOC charge may not be considered by a federal 

court unless the new claims are like or reasonably related to the allegations contained in 

the EEOC charge. Freeman v. Oakland Unified School District, 291 F.3d 632, 636 (9th 

Cir. 2002). A plaintiff’s claims are reasonably related to allegations in the charge “to 

the extent that those claims are consistent with the plaintiff’s original theory of the 

case,” as reflected in the plaintiff’s factual allegations and his assessment as to why the 

employer’s conduct is unlawful. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1100 (9th 

Cir. 2002). In determining whether a plaintiff has exhausted allegations that he did not 

specify in his administrative charge, it is appropriate to consider such factors as 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. Id.

On October 4, 2017, Plaintiff filed his Charge of Discrimination with the EEOC 

alleging retaliation and disability discrimination. (DSOF ¶ 25) When Plaintiff did 

submit his charge (including the attached letter) to the EEOC it did not include – and 

could not include – any alleged failure to reassign Plaintiff into a vacant position once 

he was cleared to return to work on or after January 1, 2018. (DSOF ¶ 16, 26) The 

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EEOC issued its right to sue letter on November 30, 2017 at Plaintiff’s request. (DSOF 

¶ 30) As of even that late date, Plaintiff still had not been cleared to return to work. 

Plaintiff’s position at GateWay remained open to him, but he, his attorney, and his 

doctors said he should or would not go back to that position or work anywhere at 

GateWay. (DSOF ¶ 26-27, 29, 31) Plaintiff’s charge of discrimination and his letter 

blamed his alleged mistreatment on the faculty and administrators located at GateWay. 

(DSOF ¶ 25) Plaintiff’s return to work claim on the other hand involved Plaintiff 

interacting with District HR personnel who were located at the District’s administrative 

offices in Tempe. (DSOF ¶ 27) Plaintiff’s allegations of mistreatment/retaliation for 

advocating for students with disabilities while he was working at GateWay’s main 

Washington campus are not like or related to a claim of interference with his personal 

right to a reasonable accommodation for his own disability when he was finally released 

to return to work. 

The ADA claim made in the Third Claim for Relief should be dismissed as it was 

not administratively exhausted. This cause of action could only accrue as of January 2, 

2018 when Plaintiff was cleared to return to work at a college other than GateWay. 

(DSOF ¶ 16, 26) Plaintiff never did or could complain to the EEOC about any alleged 

failure by the District to reassign Plaintiff to a vacant position as he was not able to 

perform in any position by the time the EEOC issued its November 30, 2017 right to sue 

letter. (DSOF ¶ 30)

III. PLAINTIFF’S STATE LAW INTENTIONAL INFLICTION OF 

EMOTIONAL DISTRESS CLAIM SHOULD BE DISMISSED, OR 

LIMITED, UNDER THE STATUTE OF LIMITATIONS AND/OR 

NOTICE OF CLAIMS STATUTE

In the Second Claim for Relief, Plaintiff sued the District and the individual 

Defendants for alleged intentional infliction of emotional distress under state law. To 

establish a claim for intentional infliction of emotional distress, a plaintiff must show: 

(1) conduct which is extreme and outrageous; (2) defendant’s conduct was intentionally 

or recklessly performed; and (3) such conduct caused severe emotional distress. 

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Johnson v. McDonald, 197 Ariz. 155, 160, ¶ 23, 3 P.3d 1075, 1080 (App. 1999). “[I]t is 

extremely rare to find conduct in the employment context that will rise to the level of 

outrageousness necessary to provide a basis for recovery for the tort of intentional 

infliction of emotional distress.” Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 

550, 554, 905 P.2d 559, 563 (App. 1995), quoting, Cox v. Keystone Carbon Co., 861 

F.2d 390, 395 (3d Cir. 1988), cert. denied, 498 U.S. 811 (1990). While this claim lacks 

substantive merit, Defendants seek dismissal, in whole or in part, under the applicable 

statute of limitations and/or the notice of claims statute.

A. Statute Of Limitations

Claims against a public entity and public employees under state law are subject 

to a one-year statute of limitations. A.R.S. § 12-821. This action was filed on February 

23, 2018. (DSOF ¶ 32) Any cause of action which accrued on or before February 22, 

2017 would be time barred under the one-year statute of limitation.

4

 Almost the 

entirety of this claim is based upon acts which happened before Plaintiff left work and 

went on leave starting on February 6, 2017 due to a nervous breakdown. (DSOF ¶ 6-10) 

Plaintiff alleged he suffered a major heart attack back in March 2016 and subsequent 

cardiovascular incidents due to the stress while he was working up until February 6, 

2017. (DSOF ¶ 6-10) 

There is no allegation that Dr. Wise did or said anything to or regarding Plaintiff 

after he stopped working on February 6, 2017. (Dkt 1, Complaint) So whatever cause 

of action exists against her, it is completely barred.

Dr. Miranda also had no communication with Plaintiff after Plaintiff stopped 

working on February 6, 2017. (DSOF ¶ 11) Arizona does not apply the continuing 

violation theory to claims against public entities and public employees. Watkins v. 

Arpaio, 239 Ariz. 168, ¶ 12-14, 367 P.3d 72 (App. 2013). But the Complaint alleges a 

 

4 While Arizona law requires a notice of claim (as discussed below), the statute of 

limitations is not tolled during the pendency of any notice of claim. Stulce v. Salt River 

Project Agr. Imp. & Power Dist., 197 Ariz. 87, 92, ¶ 17, 3 P.3d 1007, 1012 (App. 

1999).

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few isolated statements after February 6, 2017 by Dr. Miranda to third persons. (DSOF 

¶ 33-39) One of those statements was made on February 17, 2017, so more than oneyear time before this action was filed. (DSOPF 32-33) The statements were, with one 

exception, allegedly made to Plaintiff’s workplace subordinate, Cindi Tanner, to sway 

her to trust Dr. Miranda while she was the acting DRS Manager. (DSOF ¶ 23, 33-37, 

39) One set of alleged statements were made to other District disability professionals. 

(DSOF ¶ 38) Such statements outside the presence of the Plaintiff are not actionable as 

part of a claim for intentional infliction of emotional distress. McKee v. State of 

Arizona, 241 Ariz. 377, 383-84, ¶ 25, 388 P.3d 14, 20-21 (App. 2016) (limiting liability 

for intentional infliction of emotional distress to plaintiffs that are present at the time of 

the statements and conduct “as distinguished from those who discover later what has 

occurred”); see Restatement (Second) of Torts § 46(2)5. Therefore, the entire claim 

against Dr. Miranda and the District should be dismissed or, at worst, limited to 

statements or conduct occurring after February 22, 2017.

The alleged extreme and outrageous conduct of District faculty and 

administrators, including Dr. Wise, towards Plaintiff ceased once he stopped working. 

The only allegations after that date relate to Dr. Miranda and were a few isolated 

statements made to others, so they are not actionable. Plaintiff’s cause of action accrued 

by February 6, 2017, so under the one-year statute of limitations his entire claim is 

barred. At worst, his claim based upon acts or statements made on or before February 

22, 2017 is barred and his claim must be limited to acts or statements after that date. 

B. Notice Of Claim

Plaintiff’s claim is also limited under the notice of claims statute. Arizona law 

requires that any person with a claim against a “public entity”, “public school”, and/or 

 

5 This provision provides: “Where such conduct is directed at a third person, the actor is 

subject to liability if he intentionally or recklessly causes severe emotional distress (a) 

to a member of such person’s immediate family who is present at the time, whether or 

not such distress results in bodily harm, or (b) to any other person who is present at the 

time, if such distress results in bodily harm.” 

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“public employee” must file a written notice of claim before they file a lawsuit. A.R.S. 

§ 12-821.01. The purpose of the notice of claims statute is to allow the public entity 

and the employee an opportunity before a lawsuit is filed to investigate and assess their 

liability, to permit the possibility of settlement prior to litigation, and to assist in 

financial planning and budgeting. Harris v. Cochise Health System, 215 Ariz. 344, 351, 

¶ 25, 160 P.3d 223, 230 (App. 2007). 

Under the notice of claim statute, “public entity” is defined to include the state 

and any political subdivision of the state. A.R.S. § 12-820(7). Community college 

districts, such as the District, are political subdivisions of the state. (DSOF ¶ 1) 

McClanahan v. Cochise College, 25 Ariz. App. 13, 17, 540 P.2d 744, 748 (1975). 

Community college districts and the colleges they operate are also public schools as 

they are established under state law. See Jesik v. Maricopa County Community College 

Dist., 125 Ariz. 543, 546, 611 P.2d 547, 550 (1980); A.R.S. § 15-1469.

The statute requires the filing within 180 days of accrual of a notice of claim 

which must contain a specific amount for which the claim can be settled and the factual 

basis for the claim. A.R.S. § 12-821.01(A). Any claim that is not filed within 180 days 

after the cause of action accrues is barred and no action may be maintained thereon. Id. 

“A cause of action accrues when the damaged party realizes he or she has been 

damaged and knows or reasonably should know the cause, source, act, event, 

instrumentality or condition that caused or contributed to the damage.” A.R.S. § 12-

821.01(B).

Plaintiff, through counsel, did submit a notice of claim letter on June 29, 2107 

(DSOF ¶ 24), so any claim accruing on or before December 31, 2016 is time barred. 

Arizona does not apply the continuing violation theory to claims against public entities 

and public employees. Watkins v. Arpaio, 239 Ariz. 168, ¶ 12-14, 367 P.3d 72 (App. 

2013). This would certainly bar any claim based upon the alleged stress of faculty and 

administration antagonism, and the public humiliation of not being hired to teach a class 

which predated Plaintiff’s March 2016 heart attack resulting from such acts. (DSOF ¶ 

Case 2:18-cv-00605-DWL Document 25 Filed 06/05/18 Page 12 of 13
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6-8) Plaintiff even claimed he notified the College President in 2016 about faculty 

mistreatment of him, and nothing was done. (DSOF ¶ 6, 8)

The claim of intentional infliction of emotional distress is barred as to any acts, 

omissions or statements on or before February 22, 2017 under the applicable statute of 

limitation. This represents the entirety of the claim against Dr. Wise. The alleged 

statements of Dr. Miranda about Plaintiff’s deficient work performance made after 

February 22, 2017 are not actionable as part of an intentional infliction of emotional 

distress claim. The notice of claim statute separately bars Plaintiff from suing based 

upon acts, statements and conduct on or before December 31, 2016. 

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

5153937.1

109883.024

Case 2:18-cv-00605-DWL Document 25 Filed 06/05/18 Page 13 of 13