Wolf v. Discover Fin. Servs. Inc.
| Decision Date | 08 February 2021 |
| Docket Number | No. CV-19-04989-PHX-JAT,CV-19-04989-PHX-JAT |
| Parties | Joan Wolf, Plaintiff, v. Discover Financial Services Incorporated, Defendant. |
| Court | U.S. District Court — District of Arizona |
Before the Court is Defendant's Motion for Summary Judgment (Doc. 92). Plaintiff filed a Response (Doc. 116)1 and Defendant filed a Reply (Doc. 117). The Court now rules.
The following facts are either undisputed or recounted in the light most favorable to Plaintiff, the non-movant. Ellison v. Robertson, 357 F.3d 1072, 1075-76 (9th Cir. 2004).
Plaintiff worked for Defendant for approximately 25 years from September 21, 1993 to December 3, 2018. (Docs. 12 at 5, 92 at 2). Plaintiff was originally hired as a customer service representative and then became a fraud analyst; a position Plaintiff occupied through the end of her employment with Defendant. (Doc. 92 at 2). During her career as afraud analyst, Plaintiff regularly worked night and weekend shifts and, because of this, was paid more than her peers who worked the day shift during the week. (Id.).
All fraud analysts performed the same job functions. (Id.). Over the course of Plaintiff's employment her job functions varied and included reviewing accounts, speaking on the phone, and "queue work," which refers to investigating accounts flagged for suspicious activity. (Id.).2 An essential, and in fact the primary, job function of a fraud analyst was speaking on the phone for a full shift. (Id. at 3). Wolf spent her entire shift on the phone with customers unless there was an internal meeting, or she was participating in a learning exercise. (Id.). On occasion, fraud analysts would be pulled off the phone temporarily for special projects. (Id.).
Plaintiff took a medical leave of absence from August 22, 2017 to February 14, 2018, and in that time, Plaintiff got throat and nose surgery to treat sleep apnea. (Doc. 12 at 5; Doc. 92 at 4). Plaintiff returned to work on February 15, 2018 with no work restrictions. (Doc. 92 at 4).
On March 5, 2018 A.G., a Department Manager for Defendant, held a meeting for employees with high average call handling time ("AHT"), to discuss ways to reduce AHT and address any concerns or questions employees had. (Id. at 5, Doc. 116 at 3). Plaintiff attended the meeting and read a prepared statement. (Doc. 92 at 5). Plaintiff raised age discrimination as a possible reason for having the meeting, and A.G. became offended, raising his voice to Plaintiff. (Id. at 5-6) On March 9, 2019, Plaintiff and A.G. had a separate one-on-one meeting where Plaintiff again read prepared remarks after which the meeting ended. (Id. at 5). On March 12, 2018, Plaintiff filed a complaint with Human Resources against A.G. alleging that he was "rude, bullying, hostile, condescending and insulted her integrity" during the March 5, 2018 meeting. (Id. at 5-6). After Human Resources investigated the complaint, A.G. was coached on ways to run more effective meetings and better address performance issues. (Id. at 6).
On March 29, 2018, Plaintiff claimed that the "phone work" that was required by her position was straining her voice, and she requested no phone work until May 23, 2018 based on a doctor's recommendation. (Docs. 12 at 7, 92 at 6).3 Plaintiff sought an accommodation from Defendant to be assigned only non-phone related work. (Docs. 92 at 6, 116 at 4). Defendant claimed that there were no available non-phone positions for Plaintiff and declined to consolidate non-phone job functions into a single new position for Plaintiff. (Doc. 92 at 6). Instead, Plaintiff was placed on temporary leave. (Id.).
On March 30, 2018 Employee Relations Advisor R.D. began searching for alternative jobs that would not require Plaintiff to speak on the phone. (Id. at 7). Plaintiff declined other alternative accommodations including working only part-time or taking extra breaks. (Id.; Doc. 116 at 4-5). R.D. reviewed job listings to determine if there were any vacant positions that would meet Plaintiff's needs but did not find any such position for Plaintiff.4 (Doc. 92 at 7). Plaintiff's medical issues did not resolve, and her doctor extended her "no phone work" restrictions to July 30, 2018. (Id.). As a result, Plaintiff's temporary leave was extended. (Id.).
On July 18, 2018, Plaintiff filed an EEOC discrimination charge alleging disability discrimination and retaliation in violation of the Americans with Disabilities Act (the "ADA"). (Id.). Plaintiff received her right to sue based on the charge on May 25, 2019 (Doc. 12 at 11).
Plaintiff's medical issues did not resolve by the end of July 2018, and her doctor extended her "no phone work" restrictions multiple times through December 17, 2018. (Id. at 8, Doc. 116 at 5). During this period, Defendant did not find a no-phone-work position for Plaintiff, so Plaintiff remained on temporary leave. (Docs. 92 at 8, 116 at 5-6). Plaintiff's leave was ultimately exhausted, so she was terminated on December 3, 2018. (Doc. 92 at 8).
Summary judgment in favor of a party is appropriate when that party "shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Stated conversely, a party "can defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a rational trier of fact to find in its favor." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (per curiam).
The movant must first establish that there is no genuine dispute of material fact and that, based on the undisputed material facts, the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate the existence of any dispute of material fact. Id. at 323-24. The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e) (1963)). There is a genuine issue of material fact if the disputed issue of fact "could reasonably be resolved in favor of either party." Ellison, 357 F.3d at 1075. Material facts are those "facts that might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must "construe all facts in the light most favorable to the non-moving party." Ellison, 357 F.3d at 1075-76 (citation omitted). However, the nonmovant's bare assertions, standing alone, are insufficient to create a material issue of fact that would defeat the motion for summary judgment. Anderson, 477 U.S. at 247-48.
Defendant moves for summary judgment on all of Plaintiff's claims including disability discrimination under the ADA, 42 U.S.C. § 12112(a), retaliation under the ADA, 42 U.S.C. § 12203(a), and retaliation under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 623(d). (See Docs. 12, 92). The Court will analyze each claim in turn.
The ADA forbids an employer from discriminating "against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). "'[Q]ualified individual' means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8). An employer discriminates against a qualified individual with a disability by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]." Id. § 12112(b)(5)(A). Therefore, a plaintiff can establish a prima facie case for failure to accommodate under the ADA where she establishes: "(1) she is disabled; (2) she is qualified for the job in question and capable of performing it with reasonable accommodation; (3) the employer had notice of her disability; and (4) the employer failed to reasonably accommodate her disability." Steenmeyer v. Boeing Co., 92 F. Supp. 3d 1024, 1030 (W.D. Wash. 2015) (citations omitted).
Defendant, in its motion for summary judgment, does not contest that Plaintiff is disabled or that she provided notice of her disability. (See Doc. 92 at 9). Defendant does, however, dispute the other two elements for Plaintiff's disability claim.
The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Thus, to determine if Plaintiff is qualified for the job in question, the Court must consider whether Plaintiff "can perform the job's essential functions without reasonable accommodation, and then, if [she] cannot, whether [she] can do so withreasonable accommodation." Dark v. Curry County, 451 F.3d 1078, 1086 (9th Cir. 2006) (citing Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1231 (9th Cir. 2003)).
29 C.F.R. § 1630.2(n)(1); see Dark, 451 F.3d at 1087. Among other factors, a court should consider the employer's judgment as to what the essential functions of the job are, and if an employer has prepared a written job description, this...
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