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Israel G. Torres (#020303)

James E. Barton, II (#023888)

Saman J. Golestan (#031710)

TORRES LAW GROUP, PLLC

2239 West Baseline Road

Tempe, Arizona 85283

480.588.6120

James@TheTorresFirm.com

Saman@TheTorresFirm.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

James Rogers and Judy Rogers,

Plaintiffs,

v.

Maricopa County Community College, 

a political subdivision of Arizona; 

Maria Wise, an individual; and Vivian 

Miranda-Strawbridge, an individual;

Defendants

Case No. CV 2018-0605 PHX-GMS

PLAINTIFFS’ RESPONSE TO 

MOTION FOR PARTIAL SUMMARY 

JUDGMENT

 

Plaintiffs James and Judy Rogers submit this response to Defendants’ motion for 

partial summary judgment, urging the court to deny the motion. The heart of this case is 

an effort by the Maricopa County Community College District (the “District”) to push 

James Rogers from his position as Disability Resources & Service (“DRS”) Manager in 

retaliation for his efforts to ensure that the District provided the necessary, and legally 

mandated, services to students with disabilities. 

Case 2:18-cv-00605-DWL Document 32 Filed 07/05/18 Page 1 of 7
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Defendants should not be permitted to strip off individual components of an overall 

scheme to bully and harass Mr. Rogers until he was no longer able to perform his life’s 

work on behalf of disabled students attending Gateway Community College.

(1) The FMLA claim is an unusual FMLA claim in that the District’s violation of 

FMLA by making Mr. Rogers aware of their intentions to replace and make it 

impossible for him to return to the position at Gateway exacerbated his 

condition.

(2) The actions taken by the District, when viewed in context with the stream of 

efforts to push Mr. Rogers out of his position due constitute a violation of 

FMLA.

(3) The ADA accommodation claim was sufficiently related to the claims raised in 

the EEOC complaint and the Notice of Claim to satisfy exhaustion of 

administrative remedies.

(4) The District’s actions surround the FMLA violations when viewed in light of 

the overall scheme to remove Mr. Rogers survive the one-year statute of

limitations.

Although the District’s retaliation against Mr. Rogers due to his advocacy on behalf of 

disabled students attending Gateway remains the clearest claim against the District, the 

Court should not dismiss the above related claims. They should be evaluated in the larger 

context of the District’s retaliation against Mr. Rogers and resolved along with the 

retaliation claim. When taken with the larger context of the retaliation, the largely 

undisputed facts do not entitle Defendants to judgment as a matter of law.

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I. THE DISTRICT VIOLATED ROGERS’ FMLA RIGHTS

Defendants interfered with Mr. Rogers’ FMLA rights as the final step in a 

concerted effort to remove him from his position as DRS Manager. Defendants either 

created or failed to respond to a work environment that was so hostile that Mr. Rogers 

suffered a heart attack in the year prior to his going on leave, (DSOF ¶¶ 6,8), and Mr. 

Rogers anxiety and cardiovascular illness cause by work-related stress continue through 

his departure from his position at Gateway, (DSOF ¶ 10). The hostility directed toward 

Mr. Rogers by faculty and administration was related to his advocating for the rights of 

disabled students at Gateway. (DSOF ¶ 6.) 

It is in this context that the Court must evaluate Defendants’ actions after Mr. 

Rogers went on FMLA leave. The administration communicated to Mr. Rogers via his 

friend and colleague Cindi Tanner. (DSOF ¶¶ 33-39.) They complained that he had 

reported misconduct of his supervisors. (DSOF ¶ 33.) They were vocally critical of his 

job performance in public settings. (DSOF ¶¶ 35, 38, 39.) They moved his office, 

removed his personal things, restructured a program he had started removing many of the 

participants, and hired a replacement. (DSOF ¶¶ 17, 19, 21, 23.) Although at this point, it 

appears that these replacements were identified as temporary, that was not communicated 

to Mr. Rogers—which is expected given that each of the move identified above were 

intended to discourage his return.

This changes are not deminimis changes as suggested by Defendants. (MPSJ at 5.) 

In the case cited by Defendants, the Ninth Circuit applied the “totality of the 

circumstances” standard, in evaluating the employee’s claim. Cates v. Pub. Employee 

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Ret. Sys. of Nevada, 357 Fed. Appx. 8, 10 (9th Cir. 2009). In the instant case, the court 

should also apply the totality of circumstances. This is an employee who had faced such 

severe retaliation from the administration over his advocacy for disabled students, that he 

had suffered cardiac events and anxiety attacks on multiple occasions. Under these 

circumstances, the steps taken by the employer are not deminimis, but calculated to keep 

Mr. Rogers from returning.

The fact that these violations of Mr. Rogers FMLA rights exacerbated his condition 

does not excuse the violations. Originally, his doctor expected him to be clear to return to 

work on April 30, 2017. (DSOF ¶ 13.) However, following the administration’s 

continued retaliation, he was unable to do so. (DSOF ¶¶ 15, 31.) This is unlike the cases 

cited in Defendant’s motion where the FMLA violation had nothing to do with the 

employee’s inability to return to work. There, the employer’s actions while the employee 

was on leave did not cause the continued inability of the employee to return to work. 

Thus, while this would moot an FMLA in most situations, it does not apply here.

II. THE FMLA CLAIM AND FAILURE TO ACCOMMODATE CLAIMS 

WERE ESSENTIALLY PRESENTED TO THE EEOC

Subject matter jurisdiction for this Court is established if prior to bringing this 

action Mr. Rogers exhausted his EECO administrative remedies. To do so, Mr. Rogers’ 

must have filed an EEOC complaint such that these claims would have been within the 

scope of a “reasonably thorough investigation,” or which “can reasonably be expected to 

grow out of the charge of discrimination.” Gibbs v. Pierce County Law Enforcement 

Support, 785 F.2d 1396, 1400 (9th Cir.1986); Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th 

Cir.1990). This condition is satisfied where the claim made is not stated explicitly in the 

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EEOC complaint, but is part of a larger scheme of discrimination. E.E.O.C. v. Farmer 

Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) (“Because the layoff was an integral part of 

Farmer Bros.'s discriminatory scheme, it was reasonably related to Estrada's charge of 

discriminatory failure to recall or to rehire.”)

Here, the September 8, 2017 letter attached to the EEOC claim alleged the conduct 

described above. It identified the employees of Defendant who created the hostile work 

environment leading to Mr. Rogers’ stress-induced medical problems. (Hong Decl. Ex. C 

at 1-2.) This made it clear that Gateway had become a dangerous hostile work 

environment for Mr. Rogers. It specifies the conduct that occurred after Mr. Rogers went 

out on FMLA leave that was targeted at discouraging his return. “The calculated public 

humiliation of stripping the DRS offices of their furniture and the vicious attacks on J.R.’s 

efforts to serve the students and false claims about his not following procedures resulted 

in J.R. suffering a nervous breakdown in February 2017.” (Hong Decl. Ex. C at 3.) 

Similarly, under the section titled “Miscellaneous Acts of Hostility,” the attachment to the 

EEOC complaint details the administration’s communicating through Ms. Tanner to J.R. 

in an effort to discourage his return to work.

Of course, the primary complaint concerns the blatant retaliation against Mr. 

Rogers exacted by the administration against him. Nonetheless, a reasonably thorough 

investigation of his retaliation claim would have revealed this other violations of his rights 

by the administration. The claims should not be dismissed for failure to exhaust 

administrative remedies.

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III. DEFENDANTS’ ACTIONS AFTER FEBRUARY 22, 2018 SUPPORT A 

FINDING OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The most outrageous conduct directed toward Mr. Rogers occurred more than a 

year before he filed his complaint. Nonetheless, the administration’s coup de grâce—

taking steps to ensure that Mr. Rogers would not return to challenge their actions in the 

future—occurred after February 22, 2018. For that reason, the Intentional Infliction of 

Emotional Distress claim is not time barred and should not be decided under this motion 

as a matter of law.

In their motion, Defendants acknowledge that under the Restatement (Second) of 

Torts section 46(2), when conduct is directed toward a third person, the actor is subject to 

liability if he intentionally causes server emotional distress that results in bodily harm. 

(MPSJ at 11 n.5.) The actions cited above are precisely this situation. The administration 

communicated to Mr. Rogers’ through Ms. Tanner. The administration was aware that its 

harassment of Mr. Rogers had previously resulted in his suffering a cardiovascular event 

and anxiety attacks. The result of their actions was precisely what was to be expected.

CONCLUSION

For the foregoing reasons, the Court should deny Defendants’ motion for partial 

summary judgment and consider each of these claims in conjunction with the larger 

retaliation claim.

Dated this 5

th of July, 2018

 /s/ James E. Barton II

James E. Barton II

Torres Law Group, PLLC

2239 W. Baseline Road 

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-7-

Tempe AZ, 85283

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

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

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

registered ECF users:

David R. Schwartz

Kimberly R. Davis

1138 North Alma School Road

Suite 101

Mesa, Arizona 85201

Attorneys for Defendants

s/Saman J. Golestan

Case 2:18-cv-00605-DWL Document 32 Filed 07/05/18 Page 7 of 7