Ballard v. Terros Inc.
| Decision Date | 23 April 2021 |
| Docket Number | No. CV-19-05658-PHX-DWL,CV-19-05658-PHX-DWL |
| Parties | Pamela Ballard, Plaintiff, v. Terros Incorporated, Defendant. |
| Court | U.S. District Court — District of Arizona |
Pamela Ballard ("Ballard") sued her former employer, Terros, Inc. ("Terros"), for discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 ("Rehabilitation Act"). After Terros moved for summary judgment (Doc. 29), Ballard's attorney withdrew and Ballard thereafter failed to file a response, prompting Terros to move for summary disposition (Doc. 36). For the following reasons, Terros's motion for summary disposition is denied but its motion for summary judgment is granted.
The following facts are derived from the evidence attached to Terros's motion for summary judgment and other materials in the record. As discussed in more detail below, because Ballard did not respond to Terros's motion, these facts are undisputed.
Terros is a nonprofit healthcare provider specializing in "mental health, physical health, addiction recovery, and wellness interventions." (Doc. 29-1 at 2 ¶ 3.) Ballard became a Terros employee in 2014 after Terros acquired her previous employer. (Id. at 2 ¶ 9.) Ballard worked as a "Practice Manager" at Terros's Dunlap clinic until its closure in late July 2018. (Id. at 2 ¶ 10; Doc. 29-2 at 27 ¶ 3.) Terros retained many of its employees from the Dunlap location, transferring them to its 27th Avenue clinic. (Doc. 29-1 at 2 ¶ 11; Doc. 29-2 at 27 ¶ 4.) Because the 27th Avenue clinic already had a Practice Manager, Terros did not transfer Ballard there. (Doc. 29-1 at 2 ¶ 12; Doc. 29-2 at 27 ¶ 4.)
Instead of terminating Ballard's employment, Terros created a new "Floating Practice Manager" position for her. (Doc. 29-1 at 2 ¶ 13; Doc. 29-2 at 27 ¶ 5.) As a Floating Practice Manager, Ballard was responsible for filling in for Practice Managers at various locations if they were sick, on vacation, or otherwise unavailable. (Doc. 29-1 at 3 ¶ 14.) Ballard's pay remained the same in her new role. (Id. at 3 ¶ 15.)
In declarations, Ballard's supervisor (Rosalia DeLeon) and Terros's Senior Director of Human Resources (Lorie Birk) both state that Ballard was informed before accepting the Floating Practice Manager role that she would be expected to report to the Broadway location when she was not covering shifts for absent Practice Managers at other clinics. (Doc. 29-1 at 3 ¶ 19; Doc. 29-2 at 27 ¶ 6.)
In an email to a Terros administrator dated July 17, 2018, Ballard acknowledged that she had been told "the need [for a Floating Practice Manager] is for Broadway" and asked why she was the only Practice Manager being considered for the floating role. (Doc. 29-3 at 9.) The administrator responded that, because the Dunlap clinic was closing, the Broadway location was Terros's only clinic in need of additional help. (Id.)
On July 18, 2018, DeLeon emailed Birk to note that she had spoken with Ballard about her new Floating Practice Manager role. (Doc. 29-1 at 6.) The email characterized Ballard's change in position as a "transition to Broadway" and noted that because there was no need for a full-time Practice Manager at the Broadway location, "the expectation is for her to cover for other [Practice Managers]" as needed. (Id.)
Shortly before starting in her new position, Ballard requested a three-week leave of absence under the Family Medical Leave Act ("FMLA"). (Doc. 30 [lodged under seal].)Terros granted this request. (Doc. 29-1 at 3 ¶ 17.)
On August 20, 2018, Ballard returned to work without restrictions. (Id. at 3-4 ¶¶ 18, 27; Doc. 29-2 at 27 ¶ 7.) Upon her return, Ballard was told that she would initially fill in twice per week for the Practice Manager at Terros's 51st Avenue location and would report to the Broadway location the remaining three days per week. (Doc. 29-2 at 27 ¶ 8.) After the 51st Avenue location's Practice Manager returned from leave, Ballard would report to Broadway every day until she was needed to cover a vacancy at another branch. (Id.)
On August 22, 2018, Ballard sent an email to DeLeon stating that she did not recall being told that she would be required to report to the Broadway location on a daily basis. (Doc. 29-3 at 7.) Ballard explained that she was under the impression she would be "'floating' all over the agency," rather than reporting to work consistently at the Broadway location. (Id.) Ballard also mentioned that working from the Broadway location would require her to drive "60 plus miles extra per day" and stated that such travel would be difficult because of her personal and family obligations. (Id.)
Although Terros still needed Ballard to report to the Broadway location, Terros attempted to make scheduling adjustments based on Ballard's requests. In an August 24, 2018 email, DeLeon laid out a new "tentative schedule" based on Ballard's input, but noted that Ballard would still be required to stay late at least one night per week. (Doc. 29-3 at 13.)
In the scheduling discussions that occurred during her first week as Floating Practice Manager, Ballard never mentioned being disabled. (Doc. 29-1 at 3-4 ¶¶ 23, 26-27; Doc. 29-2 at 17, 28 ¶¶ 12-16.) Ballard admitted during her deposition that she only discussed "the actual scheduling" in her emails with her supervisor. (Doc. 29-2 at 17.)
On August 31, 2018, Ballard's counsel drafted a letter, which was addressed to Terros's CEO, stating that Ballard believed she was "being treated differently and unfairly based on her age, sex, and disability." (Doc. 29-4 at 9-10.) The letter explained that Ballard saw Terros's offer of a Floating Practice Manager position as pressure for her to resign. (Id.) The letter further stated that, because of her relative seniority, Ballard believed sheshould have been offered one of the existing Practice Manager positions and that the Floating Practice Manager role should have gone to someone more junior. (Id.) The letter also stated that "Ms. Ballard is suffering from some conditions where she will be asking for reasonable accommodation." (Id. at 10.) The letter suggested that reasonable accommodations might include "not work[ing] more than 8 hours a day . . . in a position where commuting is minimal." (Id.)
It is undisputed on this record that, even though the letter was addressed to Terros's CEO, Terros's management never actually received the letter "until well after Ballard resigned from her employment with Terros." (Doc. 29-1 at 3 ¶¶ 24-25; Doc. 29-4 at 12, ¶¶ 3-4.) It is also undisputed on this record that "neither Ballard nor her counsel[] ever asked anyone at Terros about the Letter and/or why no response was provided and/or whether Terros even received the letter." (Doc. 29-1 at 3 ¶ 25.) Had Ballard or her counsel notified Terros that Ballard was interested in seeking a reasonable accommodation for a disability, "she would have been given documentation for her physician to fill out and the parties would have engaged in further discussions to determine if Ballard was eligible for a reasonable accommodation and if so, the type of reasonable accommodation(s) that would assist Ballard in performing the essential functions of her position." (Doc. 29-1 at 4 ¶ 26.)
Ballard acknowledged during her deposition that the language of the August 31, 2018 letter merely noted that she would be requesting accommodations and that the letter itself did not make such a request. (Doc. 29-2 at 11.) Ballard further conceded that she never directly asked for the potential accommodations mentioned in the August 31, 2018 letter (because Terros did not respond to the letter). (Id. at 12.)
Ballard testified that she asked a different supervisor for a "reasonable schedule" on one occasion in September 2018. (Id. at 12.) During that conversation, Ballard explained that her schedule was stressful but did not suggest that she was disabled. (Id. at 11-12.)
On October 6, 2018, Ballard emailed DeLeon to express her interest in a Practice Manager position at the Terros's 27th Avenue branch that had recently become vacant. (Id. at 18.) DeLeon instructed her to apply for the position in the same manner as externalapplicants. (Id.) Ballard applied for this role but did not hear anything further about her application until after she resigned from Terros. (Id. at 18-19.)
On January 2, 2019, Ballard sent an email to a Terros representative announcing her "official resignation from TerrosHealth" effective that day. (Doc. 29-4 at 2.)
On November 13, 2018, Ballard filed a complaint with the Equal Employment Opportunity Commission ("EEOC") regarding Terros's alleged failure to grant her reasonable accommodations as mandated by the ADA and the Rehabilitation Act. (Doc. 1 ¶ 14; Doc. 12 ¶ 14.)
On December 10, 2018, the EEOC submitted its Notice of Charge of Discrimination to Terros. (Doc. 29-4 at 14-17.)
On August 23, 2019, the EEOC issued a Right to Sue Letter to Ballard. (Doc. 1 ¶ 5; Doc. 12 ¶ 5.)
On November 20, 2019, Ballard, through counsel, initiated this action. (Doc. 1.) The complaint asserts two claims: Count One is a claim for discrimination (id. ¶¶ 36-38) and Count Two is a claim for retaliation (id. ¶¶ 39-42).1
On September 25, 2020, Terros filed the pending motion for summary judgment. (Doc. 29.)
On November 5, 2020, Ballard's counsel filed a motion to withdraw. (Doc. 32.) Among other things, counsel confirmed that Ballard had (Id. ¶ 3.) Counsel also certified that Ballard had "been sent a notification inwriting of the status of the case" and had specifically "been notified of the pendency of the Motion for Summary Judgment." (Id. ¶ 2.)
On November 24, 2020, after the 14-day deadline to file a response had expired without any response by Ballard, the Court granted counsel's motion to withdraw. (Doc. 34.) The Court also...
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