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WO NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Garrett D. Hall, 

Plaintiff, 

v. 

Summit Fire District, et al., 

Defendants.

No. CV-15-08189-PCT-JJT

ORDER 

 At issue is Defendants Summit Fire District (“the District”), the Summit Fire 

District Board (“the Board”), Howard Nott, Jim Doskocil, Jim Newkirk, Rick Parker, Bill 

Stoddard, and Don Howard’s (collectively, “Defendants”) Motion for Summary 

Judgment (Doc. 88, Defs’ MSJ), to which Plaintiff Garett Hall filed a Response (Doc. 94, 

Resp.), and to which Defendants filed a Reply (Doc. 98, Reply). The Court finds the 

Motion appropriate for decision without oral argument. See LRCIV 7.2(f). The Court 

grants in part and denies in part Defendants’ Motion. 

I. BACKGROUND 

 Located in Flagstaff, Arizona, the District is political subdivision of the State of 

Arizona. An elected five-person Board provides general oversight for the District; 

however, the Board appoints a Fire Chief who manages the District’s day-to-day 

operations. During the relevant times in this matter, Don Howard served as the Chief of 

the District and Defendants Nott, Doskocil, Newkirk, Parker, and Stoddard served as the 

elected members of the Board. 
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 In 2006, the District hired Hall as a firefighter. (Doc. 89, Defs’ Separate Statement 

of Facts “SSOF” ¶ 20.) Hall remained in that role until 2009 when Chief Howard 

promoted Hall to the role of Acting Fire Captain. (Defs’ SSOF ¶ 21.) The promotion 

became permanent in 2013 when Chief Howard formally promoted Hall to Captain. 

(Defs’ SSOF ¶ 21.) These promotions afforded Hall both an increase in salary and 

responsibility, as he took a leadership role in supervising personnel on duty. (Defs’ SSOF 

¶¶ 76, 79.) 

 At the outset of his employment, Hall also joined the Local 1505 firefighters’ union. 

(Doc. 89-1, Defs’ SSOF Ex. 7, Hall Dep. 310:2-6.) Hall actively participated in the union’s 

activities as he rose through the District’s ranks, resulting in his election as a union Trustee 

in 2009. (Hall Dep. 311:4-25.). Beginning in the summer of 2013, the union entered into 

negotiations with the District over a “Memorandum of Understanding,” which was to result 

in official recognition of the Local 1505 by the District for the purpose of collective 

bargaining. (Doc. 95-7, Pl’s Controverting Statements of Fact “CSOF” Ex. G, Hall Decl. 

¶¶ 12–13.) As a Trustee of the union, Hall was heavily involved in these negotiations. (Hall 

Decl. ¶ 12.) Although the back-and-forth between the union and the District was 

contentious, the two sides ultimately reached a final agreement on May 20, 2014. (Doc. 89-

1, Defs’ SSOF Ex. 2, Howard Dep. 126:8-12.) 

A. Hall’s Disability and Diagnosis 

 Around 2:30 a.m. on January 7, 2014, Hall, along with firefighters on his crew, 

responded to an emergency call about an infant in distress at a Flagstaff residence. Upon 

arriving, Hall found the infant was unconscious and without a pulse. The crew 

transported the child to the Flagstaff Medical Center as Hall provided lifesaving 

measures; however, the child was pronounced dead upon arrival. After a completing a 

mandatory incident report, Hall returned to the firehouse to finish the remainder of his 

shift. That afternoon, the station received another call from the same residence from that 

morning. Again, Hall responded with his crew to find another dire situation, as the 

mother of the deceased infant had barricaded herself in a bathroom and ingested a bottle 
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of medication in an attempt at suicide. Emergency personnel swiftly administered aid and 

transported the mother to the hospital, where she would recover. The events, however, 

would have a traumatic effect on Hall. 

 Shortly after the January 7th incidents, Hall began meeting with a psychologist, 

Kelly Sieczkowski, provided by the District through the Flagstaff Child and Family 

Counseling Center. Hall, however, remained on the job at that time. On April 6, 2014, 

Hall was taken to the hospital after experiencing chest pains and stress while on-duty. 

(Defs’ SSOF ¶ 32–33.) The hospital released Hall after an evaluation, and he called in to 

work sick the next day. (Defs’ SSOF ¶ 35.) After determining that he needed time to 

recuperate, Hall submitted an application for leave under the Family and Medical Leave 

Act (“FMLA”) on April 9. In conjunction with Hall’s application for leave, Sieczkowski 

submitted documentation to the District indicating that Hall was experiencing symptoms 

related to Post-Traumatic Stress Disorder (“PTSD”). (Defs’ SSOF ¶ 37.) The District 

approved Hall’s request, and his FMLA leave commenced on April 12. Because Hall had 

taken FMLA leave on a previous occasion for a reason unrelated to his PTSD, he was 

eligible for 360 hours of leave. (Defs’ SSOF ¶ 38.) 

B. Hall’s Medical Leave and Ultimate Discharge 

 While on FMLA leave, Hall began seeing a licensed psychiatrist, Dr. Abigail 

Isakson, who formally diagnosed Hall with PTSD. (Defs’ SSOF ¶ 39.) During this time, 

he also submitted a claim for worker’s compensation with the District’s insurer, 

CopperPoint Mutual Insurance Company (Defs’ SSOF ¶ 40.) CopperPoint, however, 

would deny Hall’s claim on July 23, 2014. (Defs’ SSOF ¶ 43.) Although Hall would 

appeal his denial, he entered into a settlement agreement with CopperPoint in 2015, 

dropping his appeal of the denial of the claim. (Doc. 89-3, Defs’ SSOF Ex. 15) 

 As Hall’s initial medical leave drew to an end, it was clear that Hall remained 

unable to return to his role as Captain in the same capacity he had before his diagnosis. In 

an effort to determine how to proceed, Chief Howard sent Hall a letter on June 12, 2014. 

(Doc. 89-4, Defs’ SSOF Ex. 19.) In that letter, Chief Howard laid out several options for 
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Hall, including taking leave under the District’s leave of absence policy or proceeding 

under the Americans with Disabilities Act (ADA). (Defs’ SSOF Ex. 19.) Howard also 

noted that Hall would use up his sick and vacation time as of June 29th. (Defs’ SSOF 

Ex. 19.) Defendants allege that Hall failed to ever respond to this letter, and Hall does not 

recall doing so. (Defs’ SSOF ¶ 57, Pls’ CSOF ¶ 57.) Hall, however, alleges that he met 

with Chief Howard shortly after receiving the letter. (Doc. 95-2, Pls’ CSOF Ex. B, Hall 

Tr. 254:22-255:14.) During that meeting, Hall recalls first requesting the opportunity to 

perform light duty assignments for the District in lieu of his regular duties. (Hall Dep. 

255:2-9.) 

 On July 17, 2014, Chief Howard wrote to Hall again to reiterate the options 

available to Hall. (Doc. 89-4, Defs’ SSOF Ex. 22.) In that letter, Chief Howard laid out 

several options for Hall including taking a medical retirement, taking a leave of absence 

under the District’s policies, or resigning. (Defs’ SSOF Ex. 22.) If Hall did not make a 

decision, Chief Howard noted that he would fire Hall on July 31. (Defs’ SSOF Ex. 22.) 

Hall, however, did not respond to Chief Howard’s letter until sending an email on 

July 30, 2014. In his response, Hall reiterated a desire “to work and do any tasks for the 

organization that a doctor thinks is appropriate.” (Doc 89-4, Defs’ SSOF Ex. 23.) The 

next day, Hall provided Chief Howard with a completed Request for Reasonable 

Accommodation form which the District had provided. (Doc. 89-3, Defs’ SSOF Ex. 12.) 

The two-page, handwritten form was completed by Dr. Isakson, who concluded that no 

work related accommodations “at this time are possible to allow [Hall] to return to his 

previous line of work.” (Defs’ SSOF Ex. 12.) After receiving the completed form, Chief 

Howard fired Hall effective July 31, 2014. (Doc. 89-2, Defs’ SSOF Ex. 1 ¶ 33.) 

 Hall filed suit in the Coconino County Superior Court on May 26, 2015. 

Defendants timely removed to this Court on September 24, 2015. On December 4, 2015, 

Hall filed his Second Amended Complaint, which is the operative Complaint for the 

purpose of summary judgment. In the Second Amended Complaint, Hall alleges five 

claims against each of the Defendants in this action. First, Hall alleges that each of the 
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Defendants discriminated against him in violation of the ADA by failing to provide a 

reasonable accommodation and for firing Hall due to his disability. (2d Am. Compl. 

¶¶ 49–64.) Hall additionally alleges that each Defendant retaliated against him for 

requesting a reasonable accommodation in violation of the ADA. (2d Am. Compl.¶¶ 65–

71.) Next, Hall brings a claim under 42 U.S.C. § 1983 for the Defendants’ retaliation 

against Hall’s right to association with a union. (2d Am. Compl. ¶¶ 72–80.) Finally, Hall 

alleges a state law contract claim for the Defendants’ breach of the covenant of good faith 

and fair dealing. (2d Am. Compl. ¶¶ 81–87.) 

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. 

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). 
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 “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 

 Defendants move for summary judgment on each of Hall’s claims. The Court will 

first address the Motion with regard to Hall’s claims under the ADA before moving to 

Hall’s constitutional and state law claims. 

A. Hall’s ADA Claims 

 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 by an 

employee 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 

North Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). Under the McDonell Douglas 

framework, the employee bears “the initial burden of establishing a prima facie case of 

discrimination.” Id. Thus, the employee must present facts demonstrating that (1) he “is a 

disabled person within the meaning of the ADA”; (2) that he can “perform the essential 

functions” of his job “with or without a reasonable accommodation”; and (3) that his 

employer terminated him because of his disability. Nunes v. Wal-Mart Stores, Inc., 164 

F.3d 1243, 1246–47 (9th Cir. 1999). 

 If the plaintiff is successful, the burden shifts to his employer “to provide a 

legitimate, nondiscriminatory [] reason for the adverse employment action.” Id.; Metoyer 

v. Chassman, 504 F.3d 919, 931 n.6 (9th Cir. 2007). Once the employer articulates such a 

reason, “the presumption of discrimination drops out of the picture.” Metoyer, 504 F.3d 

at 931 n.6. The burden then shifts back to the plaintiff to prove that the reason is merely 

pretextual. Id. 
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1. Counts I–II: Unlawful Discrimination Under the ADA 

 In the Second Amended Complaint, Hall alleges that the District discriminated 

against him both by failing to provide a reasonable accommodation for his PTSD and 

firing him because of his PTSD diagnosis.1 (2d Am. Compl. ¶¶ 49–64.) Defendants move 

for summary judgment on both claims arguing (1) that Hall fails to prove a prima facie

case of discrimination and (2) that Defendants fired Hall for a legitimate, nondiscriminatory reason. (Defs’ MSJ at 9–13.) 

 When an employee requests an accommodation or the employer becomes aware of 

the need for one, “the employer must engage in an interactive process with the employee 

to determine the appropriate reasonable accommodation.” Zivkovic v. S. Cal. Edison Co., 

302 F.3d 1080, 1089 (9th Cir. 2002) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 

(9th Cir. 2000) (en banc), vacated on other grounds, U.S. Airways, Inc. v. Barnett, 535 

U.S. 391 (2002)). Although an employee must “inform the employer of the need for an 

adjustment due to a medical condition,” he need not use any “particular language” to do 

so. Id. 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 whether the 

employer engaged in good faith in the interactive process.” Barnett, 228 F.3d at 1116. 

 The scope of reasonable accommodations under the ADA is broad and includes 

“job restructuring, part-time or modified work schedules, [or] reassignment to a vacant 

position.” 42 U.S.C § 12111(9)(B). An employer does not have a duty to “provide an 

employee the accommodation he requests or prefers” and must only “provide some 

reasonable accommodation” for the employee. Zivkovic, 302 F.3d at 1089. Employers 

additionally are not required to “create a new position to accommodate a disabled 

employee.” Wellington v. Lyon Cty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999). In 

some cases, placing an employee on medical leave may be a reasonable accommodation. 

See Dark v. Curry Cty., 451 F.3d 1078, 1090 (9th Cir. 2006). An employee, however, is 

 

1

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accommodate and a discharge due to a disability are acts of “discrimination” under the 

ADA. The Court therefore addresses the claims in conjunction. 
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not required “to show that a leave of absence is certain or even likely to be successful” in 

treating the disability for it to be a reasonable accommodation. Humphrey v. Mem’l 

Hosps. Ass’n, 239 F.3d 1128, 1136 (9th Cir. 2001). Although leave “of unspecified 

duration may not be a reasonable accommodation . . . where the employee will not be 

able to return to his former position and cannot state when and under what conditions he 

could return to work at all,” an employer is required to at least “consider this option.” 

Dark, 451 F.3d at 1090. 

 For the purpose of summary judgment, there is no dispute that Hall was disabled 

under the ADA or that he was terminated because of his disability. Thus, Defendants’ 

Motion challenges only the second prong of Hall’s ADA claim: whether he was qualified 

to perform the essential functions of his position as a Captain in the District with an 

accommodation.2

 In support of this point, Defendants’ sole argument is that Hall was 

unqualified for the job, even with an accommodation, because his treating doctor said 

that no accommodation was available. (Defs’ MSJ at 11.) In support of this proposition, 

Defendants rely wholly on Hall’s handwritten, three page “Request for Reasonable 

Accommodation” form, which Dr. Isakson—who was Hall’s treating psychologist—

completed and returned to the District. (Def’s MSJ at 10; see Defs’ SSOF Ex. 12.) 

Therein, Dr. Isakson wrote that “[a]ny possible accommodation would worsen [Hall’s] 

sense of self at this time, as accommodations that are conceivable would be demotions.” 

(Defs’ SSOF Ex. 12 at 2.) Although the form indicates that Dr. Isakson’s opinions were 

based on a description of Hall’s current role, no evidence in the record shows that any 

member of the District ever spoke with Dr. Isakson about the range of accommodations 

available. (Defs’ SSOF Ex. 12 at 3.) 

 The Court does not dispute that, in certain circumstances, a defendant should be 

permitted to rely on the representations of an employee’s doctor that no reasonable 

accommodation exists. Compare Pesterfield v. Tenn. Valley Auth. 941 F.2d 437, 441–42 

 

2

 The parties do not dispute that, due to Hall’s PTSD symptoms at the time he was fired, he was incapable of performing his duties without a reasonable accommodation. 
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(6th Cir. 1991) (finding that reliance on employee’s psychiatrist’s report warranted when 

report was both thorough and lengthy) with Holiday v. City of Chattanooga, 206 F.3d 

637, 647 (6th Cir. 2000) (finding that employer was not entitled to rely on third party 

doctor’s cursory evaluation of employee). A defendant, however, cannot merely bury its 

head in the sand and refuse to engage with its employee in hopes that no accommodation 

exists. Permitting such behavior would nullify the “interactive process” that is at the heart 

of the ADA. See Barnett, 228 F.3d at 1113. Given the brevity of Dr. Isakson’s comments 

on Hall’s ADA form and the District’s failure to ever speak to Dr. Isakson about the 

range of available accommodations, the District cannot merely rely on her opinion to 

survive summary judgment. 

 As such, two questions of fact remain which preclude summary judgment. First, 

Hall introduced sufficient evidence to show that a reasonable accommodation was 

available. In particular, Hall points to evidence that he could have been assigned to a 

number of light-duty assignments away from his co-workers that may have been able to 

accommodate him. (See Doc. 95-10, Pl’s CSOF Ex. J, Fennell Dep. 50:18-51:15; 

Doc. 95-6, Pl’s CSOF Ex. F, Isakson Dep. 73:6-15.) Additionally, Hall argues that the 

District could have provided him with additional medical leave to recover from his 

injury.3

 Thus, although Defendants do proffer substantial evidence to show that these 

accommodations would have been unsuccessful given Hall’s condition at the time of his 

discharge, a jury rather than the Court must determine the propriety of those 

accommodations. 

 Turing to the second point, although the record indicates that the District and Hall 

maintained some level of communication from the time Hall first took FMLA leave 

 

3

 Though Defendants do not make the argument, it appears that the District actually offered Hall the option of taking additional unpaid medical leave in both Chief Howard’s June 12th and July 17th letters. (See Defs’ SSOF Exs. 19, 22.) This, however, 

appears to contradict Hall’s argument that he was willing to accept an unpaid leave of absence. If Defendants had demonstrated that the District offered Hall the 

accommodation that he claims to have requested, the Court would be inclined to grant summary judgment on that basis. Defendants, however, do not advance such an argument in their Motion. The Court thus does not consider it. 
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through his discharge, it remains disputed whether these discussions constitute the 

“interactive process” mandated by the ADA. Further, if a breakdown in the interactive 

process did occur, the jury must determine whether the blame for such a breakdown lies 

squarely with the District. As such, Hall has presented sufficient evidence to survive 

summary judgment on his prima facie case of discrimination. 

2. Nondiscriminatory Reason for Discharge 

 Notwithstanding Hall’s ability to state a prima facie case for discrimination, 

Defendants also argue that Hall’s claims fail because Defendants had a nondiscriminatory 

reason to discharge him. The District contends that it was suffering financial distress due 

to reduced tax revenue and could not continue to pay Hall in addition to paying another 

firefighter overtime to cover Hall’s shifts. (Defs’ MSJ at 12.) By offering this 

explanation, the District has articulated a legitimate, nondiscriminatory reason for its 

action. Thus, the burden shifts back to Hall to demonstrate that the explanation is 

pretextual. “A plaintiff can prove pretext in two ways: (1) indirectly, by showing that the 

employer’s proffered explanation is ‘unworthy of credence’ because it is internally 

inconsistent or otherwise not believable, or (2) directly, by showing that unlawful 

discrimination more likely motivated the employer.” See Chuang v. Univ. of Cal. Davis, 

Bd. of Trs., 222 F.3d 1115, 1127 (9th Cir. 2000) (applying McDonnell Douglas 

framework to Title VII action). For the purpose of summary judgment, Hall has 

introduced sufficient evidence from which the finder of fact could determine that the 

District’s explanation was pretextual, as he points to evidence that the District readily 

paid overtime to firefighters covering for those who had suffered physical injuries. 

(Howard Dep. 266:1-270:5.) Although indirect evidence, it demonstrates sufficient 

internal inconsistency in the reasons present by the District to send the question to the 

jury. 

 Accordingly, questions of fact remain both as to Hall’s prima facie case and as to 

whether the District’s non-discriminatory reason for firing Hall was pretext. As such, 

summary judgment on Counts I and II is inappropriate at this time. 
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3. Count III: Retaliation 

 Just as the ADA prohibits discrimination on the basis of a disability, it prohibits 

discrimination against individuals who “oppose[] any act or practice” made unlawful by 

the ADA. 42 U.S.C. § 12203(a); see Brown v. City of Tucson, 336 F.3d 1181, 1186 (9th 

Cir. 2003). To establish a prima facie case of retaliation, an employee must show that he 

(1) engaged in a protected activity; (2) suffered an adverse employment action; and (3) a 

causal link exists between the two. Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 

(9th Cir. 2004). 

 In their Motion, Defendants assert that Hall fails to satisfy the first element of a 

retaliation claim because he did not engage in any protected activity—namely, filing a 

complaint with the EEOC—until after his dismissal. (Defs’ MSJ at 12.) As Hall correctly 

notes, however, requesting a reasonable accommodation is a protected activity that may 

serve as the basis for a claim of retaliation. See Coons v. Sec’y of U.S. Dep’t of Treasury, 

383 F.3d 879, 887 (9th Cir. 2004). Though not raised in the initial Motion, Defendants 

offer an additional basis for summary judgment in the Reply, arguing that, even if Hall’s 

request for an accommodation was protected activity, Hall fails to demonstrate a causal 

connection between the request and Chief Howard’s decision to fire him. (Reply at 6.) 

Defendants reason that because Chief Howard told Hall that he would fire him on July 31 

two weeks before Hall’s request for an accommodation, the request bears no causal 

connection to the decision to fire Hall. (Reply at 6.) However, a question of fact remains 

as to whether Hall requested an accommodation prior his July 30th email. In the light 

most favorable to Plaintiff, Hall’s purported request on June 27 affords a sufficient causal 

connection to Chief Howard’s decision to fire Hall. Accordingly, Hall states a prima 

facie case of retaliation for the purpose of summary judgment. 

 Additionally, as recounted in the Court’s analysis of Counts I and II of the 

Complaint, a finder of fact must determine whether the nondiscriminatory reason offered 

by Defendants for Hall’s firing was pretextual. The Court therefore denies the Motion as 

to Count III. 
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4. Individual Liability 

 Finally, Defendants move for summary judgment on Hall’s ADA claims as those 

claims run against Chief Howard, as well as District Board members Nott, Doskocil, 

Newkirk, Stoddard and Parker. As Defendants correctly argue, “individual defendants 

cannot be held personally liable for violations of the ADA.” See Walsh v. Nevada Dep’t 

of Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006.) The Court therefore grants 

summary judgment to the individual Defendants on Counts I, II, and III of Hall’s Second 

Amended Complaint. 

B. Count IV: 42 U.S.C. § 1983 Retaliation in Violation of First and 

Fourteenth Amendment Right to Freedom of Association 

 Moving to Hall’s fourth Claim, Hall alleges that Defendants terminated him in 

retaliation for his association with, and leadership position within, the Local 1505 union. 

(2d Am. Compl. ¶¶ 72–80.) Although Hall broadly alleges the claim against all of the 

Defendants, the facts of the case make clear that each Defendant’s liability greatly 

differs. Therefore the Court addresses Hall’s first amendment retaliation claim against 

Chief Howard before addressing Hall’s claim against the remaining Defendants. 

 To succeed on a First Amendment retaliation claim, a public employee must 

demonstrate that (1) that he engaged in protected activity; (2) that his employer took 

“adverse employment action”; and (3) that his activity “was a ‘substantial or motivating’ 

factor for the adverse employment action.” Coszalter v. City of Salem, 320 F.3d 968, 973 

(9th Cir. 2003). Defendants do not challenge the first or second prong, but argue only that 

Hall cannot establish that Hall’s union activity was a “substantial or motivating factor” 

for his firing. 

 A plaintiff can present facts to satisfy the third prong in three specific ways. See 

id. (citing Keyser v. Sacramento City Unif. Sch. Dist., 265 F.3d 741 (9th Cir. 2001)). 

First, a plaintiff can introduce evidence demonstrating a “proximity in time between the 

protected acti[vity]” and the alleged adverse action that would allow a jury to infer a 

causal relationship between the employee’s activity and the employer’s adverse action. 

Id. Courts have not set a per se limit on the amount of time between the protected activity 
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and act of retaliation, finding that “three to eight months” between the acts is sufficient in 

some cases to “support an inference of retaliation.” Id. Second, a plaintiff can show that 

his employer “expressed opposition” to the First Amendment activity. Id. Finally, the 

plaintiff can demonstrate that “his employer’s proffered explanations for the adverse 

employment action were false and pre-textual.” Id. (citations omitted). 

1. Chief Howard 

 Turning first to Chief Howard, Defendants argue that Hall cannot meet his 

evidentiary burden because the facts unquestionably show that Chief Howard knew that 

Hall had been a member of the union from the time he joined the District in 2006, and 

that he had been a union Trustee since 2009. (Defs’ MSJ at 13–14.) In that time span, 

Howard promoted Hall, first to Acting Captain, then to Captain. (Defs’ MSJ at 13–14.) 

Defendants thus argue that Chief Howard’s prior support of Hall’s career prohibits a 

finding that he was opposed to Hall’s association with the union. (Defs’ MSJ at 14.) 

However, evidence in the record permits the opposite finding. In particular, Hall provides 

evidence of an email sent by Chief Howard in February 2014 during the District’s 

negotiation of the Memorandum of Understanding with the union. (See Doc. 95-11, Pls’ 

SSOF Ex. K.) In that email, Chief Howard asks whether he can “take action against the 

union leadership in some manner for providing such a derisive document.” (Pls’ SSOF 

Ex. K.) Just five months after this email, Chief Howard fired Hall. Given the proximity of 

his email to his decision to fire Hall, sufficient evidence exists to support a finding that 

Hall’s union association was a substantial factor in his firing. 4

 

4

 In the Reply, Defendants proffer an additional argument in support of their Motion. Citing to this Court’s decision in Candelaria v. City of Tolleson, No. CV-14-

02123-PHX-JJT, 2016 WL 3653959 (D. Ariz. July 8, 2016), Defendants argue that Hall cannot base his claim for retaliation on the events surrounding the negotiation of the Memorandum of Understanding because the memorandum was not a matter of public concern. (Reply at 7.) The Court need not consider arguments raised for the first time in a 

party’s reply. Nevertheless, Defendants argument is premised on a misapprehension of Candelaria and of Hall’s Complaint. Unlike the plaintiffs in Candelaria, Hall has not 

included in the Complaint a freestanding claim for the violation of his freedom of speech, but claims only that Defendants retaliated on the basis of his association with the union. 

(See Compl. ¶¶ 72–80.) Thus, Hall has not alleged a “hybrid claim” subject to the Connick public concern standard. See Hudson v. Craven, 403 F.3d 691, 698 (9th Cir. 
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 Defendants additionally argue that Chief Howard is entitled to qualified immunity; 

however, Defendants merely reiterate the arguments that the Court has addressed above. 

Moreover, Hall’s right to be free from retaliatory acts for the exercise of his freedom of 

association was clearly established at the time of the alleged injury. See, e.g., Sanchez v. 

City of Santa Ana, 936 F.2d 1027, 1037–38 (9th Cir. 1990). As such, the claim against 

Chief Howard must proceed to a jury. 

a. District Board Members 

 Hall, however, fails to establish a claim against the individual members of the 

Summit Fire Board. It is axiomatic that, under Section 1983, a defendant may not be held 

liable under a theory of respondeat superior. See Taylor v. List, 880 F.2d 1040, 1045 (9th 

Cir. 1989). Supervisory liability is permitted, but only “against a supervisory official in 

his individual capacity for his own culpable action or inaction in the training, supervision, 

or control of his subordinates, for his acquiescence in the constitutional deprivations of 

which the complaint is made, or for conduct that showed a reckless or callous 

indifference to the rights of others.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 

2009). As the record reflects, Chief Howard made the determination to fire Hall without 

the input of the Board. (Defs’ SSOF ¶ 68.) Hall presents no evidence to contradict this 

fact, nor does he show that any member of the Board contributed to the employment 

decision. Although evidence in the record reflects that the members of the Board were 

generally aware of Chief Howard’s decision to fire Hall, no evidence permits a finding 

that the Board Members were aware of Chief Howard’s alleged anti-union sentiment. 

Thus, if Chief Howard’s decision was at all motivated by anti-union animus, no evidence 

in the record indicates that the members of the Board were either aware of or acquiesced 

to that basis for firing Hall. Accordingly, the individual members of the Summit Fire 

Board are entitled to summary judgment on Count IV. 

 2005) (“[T]he application of the Connick public concern test is much easier here because the association in question involves a discrete event with a political orientation.”). 
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C. Count V: Breach of the Covenant of Good Faith and Fair Dealing 

 Finally, Defendants move for summary judgment on Hall’s claim for the breach of 

the covenant of good faith and fair dealing. (Defs’ MSJ at 14–15.) 

 Under Arizona law, “a covenant of good faith and fair dealing is implied in every 

contract.” Maleki v. Desert Palms Prof’l Props., L.L.C., 214 P.3d 415, 421 (Ariz. Ct. 

App. 2009). The “covenant requires that neither party act to impair the right of the other 

to receive the benefits that flow from their agreement or contractual relationship.” Kuehn 

v. Stanley, 91 P.3d 346, 354 (Ariz. Ct. App. 2004). “Accordingly, the relevant inquiry 

always will focus on the contract itself, to determine what the parties did agree to.” Id. As 

such, a claim for the breach of the covenant is inherently predicated on the existence of a 

valid contract. See id. 

 In this case, Hall alleges that he entered into a contract with Chief Howard and the 

District by virtue of Chief Howard’s July 17, 2015 letter. (2d Am. Compl. ¶¶ 81–87; 

Resp. at 13–14). In that letter, Chief Howard wrote: 

As we near the end of the month I feel the need to contact you in writing to make sure we are all clear on what options are available at the end of the 

month. We are two weeks away as of today so let me list what I understand 

your options to be and what options I have. . . . 4. You could cho[o]se to do 

nothing and I would terminate you on July 31. This option would allow you to collect unemployment so you would be provided with some income. If Workman’s Compensation determines to support your claim they will let you and the district know by the 20th of August. Their support of your claim would make null and void your termination. . . . 

(Defs’ SSOF Ex. 22.) 

 This language, however, does not demonstrate that a contract existed between 

Hall, Chief Howard, and the District. At best, Chief Howard’s letter can be described as a 

list of Hall’s options with the consequences of each decision that Hall might make. See 

Johnson Int’l, Inc. v. City of Phoenix, 967 P.2d 607, 613 (Ariz. Ct. App. 1998) (“[A]n 

expression of intention to do something is not a promise.”) The letter, however, does not 

contain any offer, nor does it contain any evidence of consideration. See Roscoe v. 

Bankers Life Ins. Co. of Neb., 526 P.2d 1080, 1082 (Ariz. Ct. App. 1974). Because Hall 

has not shown the existence of a valid contract between himself, Chief Howard, and the 
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District, he cannot succeed on his claim for the breach of the covenant of good faith and 

fair dealing. 

 Further, even assuming the existence of a valid contract, Hall fails to present any 

evidence to demonstrate that Chief Howard or the District breached the duty of good 

faith. As the record demonstrates, CopperPoint unequivocally denied Hall’s claim for 

Worker’s Compensation. (See Defs’ SSOF Ex. 14.) Although Hall argues that 

CopperPoint’s $60,000 settlement offer constituted “support” of Hall’s claim, the 

settlement agreement between Hall and CopperPoint makes clear that CopperPoint’s 

offer was contingent on Hall withdrawing his appeal of the denial of his claims. (Defs’ 

SSOF Ex. 15 at 37.) Thus, under the settlement, Hall “neither presently nor in the future” 

was entitled to “receive any benefits for the problems and conditions which led him to 

file this claim.” (Defs’ SSOF Ex. 15 at 38.) The Court cannot plausibly find under any 

reading of the word that this settlement offer constitutes “support” of Hall’s worker’s 

compensation claim. Accordingly, Defendants are entitled to summary judgment on 

Count V of Hall’s Complaint. 

IV. CONCLUSION 

 With regard to Counts I and II, a genuine dispute of material fact remains as to 

whether the District engaged in good faith in the interactive process under the ADA and 

whether a reasonable accommodation was available for Hall at the time of his firing. 

Additionally, Hall has introduced sufficient evidence to create a dispute as to Defendants’ 

proffered non-discriminatory reason for Hall’s firing. With regard to Count III, a genuine 

dispute remains as to whether Hall’s request for a reasonable accommodation was 

causally related to his discharge. Accordingly, Hall’s claims under the ADA shall 

proceed to trial. However, the individual Defendants are entitled to summary judgment 

on Hall’s ADA claims. 

 Regarding Hall’s Section 1983 claim, a genuine dispute exists as to whether Hall’s 

association with the union played a substantial factor in Chief Howard’s decision to 

terminate Hall. As such, Count IV shall proceed to trial against Chief Howard and the 
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District. The Court, however, grants summary judgment to the members of the Board on 

Count IV. 

 Finally, as to Count V, Hall fails to create a genuine dispute that he entered into a 

contract with the District and Chief Howard. Hall additionally fails to show that either 

Chief Howard or the District acted in bad faith with regard to any contract that may have 

existed. As such, the Court grants summary judgment on Count V. 

 IT IS THEREFORE ORDERED granting in part and denying in part 

Defendants’ Motion for Summary Judgment (Doc. 88.) Defendants Don Howard, 

Howard Nott, Jim Dosckocil, Jim Newkirk, Rick Parker, and Bill Stoddard are entitled to 

summary judgment on Counts I, II, and III. Defendants Nott, Dosckocil, Newkirk, 

Parker, and Stoddard are entitled to summary judgment on Count IV. The Court 

additionally grants summary judgment to all Defendants on Count V of Hall’s Complaint. 

The balance of Defendants’ Motion is denied, and Plaintiff’s remaining claims (Count I, 

II, and III against the Summit Fire District and Summit Fire District Board, and Count IV 

against Don Howard, the Summit Fire District, and the Summit Fire District Board) will 

proceed to trial. 

 Dated this 30th day of March, 2018. 

Honorable John J. Tuchi

United States District Judge