Robbins v. Pima, County of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jacob Robbins,
Plaintiff,
v.
Pima County,
Defendant.
No. CV-23-00362-TUC-AMM (EJM)
REPORT AND RECOMMENDATION
Currently pending before the Court is Defendant Pima County’s Motion for
Summary Judgment (Doc. 49). Defendant has also filed a Separate Statement of Facts
(“SOF”) (Doc. 50). Plaintiff filed his Response to Defendant’s Motion for Summary
Judgment (Doc. 53), as well as Controverting and Separate Statement of Facts in Support
of Response to Defendant’s Motion for Summary Judgment (“CSOF”) (Doc. 54), and
Defendant replied (Doc. 57). As such, the motion is fully briefed and ripe for
adjudication.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter
was referred to Magistrate Judge Markovich for Report and Recommendation. On
January 29, 2026, Judge Markovich heard oral argument. Minute Entry 1/29/2026 (Doc.
59). For the reasons discussed below, the Court recommends granting Defendant’s
motion for summary judgment.
. . .
. . .
. . .
Case 4:23-cv-00362-AMM Document 60 Filed 02/04/26 Page 1 of 32

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I. STANDARD OF REVIEW
Summary judgment is appropriate when, viewing the facts in the light most
favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
(1986), “there is no genuine issue as to any material fact and [] the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” if it
“might affect the outcome of the suit under the governing law,” and a dispute is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. Thus, factual disputes that have no
bearing on the outcome of a suit are irrelevant to the consideration of a motion for
summary judgment. Id. In order to withstand a motion for summary judgment, the
nonmoving party must show “specific facts showing that there is a genuine issue for
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Moreover, a “mere scintilla of
evidence” does not preclude the entry of summary judgment. Anderson, 477 U.S. at 252.
The United States Supreme Court also recognized that “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380 (2007).
The Local Rules require that “[a]ny party filing a motion for summary judgment
must file a statement, separate from the motion and memorandum of law setting forth
each material fact on which the party relies in support of the motion.” LRCiv 56.1(a).
“Each material fact in the separate statement must be set forth in a separately numbered
paragraph and must refer to a specific admissible portion of the record where the fact
finds support (for example, affidavit, deposition, discovery response, etc.).” Id. Only
material facts should be included, “[o]ther undisputed facts (such as those providing
background about the action or parties) may be included in the memorandum of law, but
should not be included in the separate statement of facts.” Id.
“Any party opposing a motion for summary judgment must file a statement,
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separate from that party’s memorandum of law setting forth:”
(1) for each paragraph of the moving party’s separate statement of facts, a
correspondingly numbered paragraph indicating whether the party disputes
the statement of fact set forth in that paragraph and a reference to the
specific admissible portion of the record supporting the party’s position if
the fact is disputed; and (2) any additional facts that establish a genuine
issue of material fact or otherwise preclude judgment in favor of the
moving party. Each additional fact must be set forth in a separate
numbered paragraph and must refer to a specific admissible portion of the
record where the fact finds support. No reply statement of facts may be
filed.
LRCiv 56.1(b). “Although the nonmoving party’s separate controverting statement of
facts may include ‘additional facts,’ it should not include undisputed facts, such as
background about the action or the parties.” Rizzo v. City of Phoenix, No CV-15-00829-
PHX-NVW, 2017 WL 3215651, at *2 (July 28, 2017). Additionally, “any objection in
[a] party’s response to the separate statement of material facts must be stated summarily
without argument.” LRCiv 7.2(m)(2).
II. FACTUAL BACKGROUND
To the extent that the facts are undisputed, the Court relies primarily on
Defendant’s Statement of Facts. Where disputes occur, Plaintiff’s objections are noted;
however, the Court has not considered any argument contained in his Controverting and
Separate Statement of Facts in Support of Response to Defendant’s Motion for Summary
Judgment (“CSOF”) (Doc. 54). Neither has the Court included Plaintiff’s extensive
background factual statements, those which merely reiterate what Defendant stated in the
first instance, or those which relate to claims which were not raised in his complaint,
which were improperly raised in Plaintiff’s CSOF (Doc. 54). See LRCiv 7.2(m)(2).
A. Plaintiff’s Employment with the Pima County Sheriff’s
Department—Overview
In 2006, Plaintiff Jacob Robbins began his employment with the Pima County
Sheriff’s Department (“PCSD”) as a Corrections Officer assigned to Pima County
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Detention Center. SOF ¶ 1; Compl. (Doc. 1) ¶ 12. In January 2020, Plaintiff was
promoted to Corrections Sergeant. Id. On October 10, 2021, he received a pay increase.
SOF (Doc. 50) ¶ 2 & Pima Cnty. Human Resources—Employee Personnel Action Form
(Exh. “1”). Plaintiff has cerebral palsy, and Defendant Pima County was aware of this
disability during his employment. SOF (Doc. 50) ¶ 3; CSOF (Doc. 54) ¶ 56; Compl.
(Doc. 1) ¶ 17.
B. COVID-19 Vaccination Requirements
On October 21, 2021, due to the ongoing health and safety risks caused by the
COVID-19 pandemic, County Administrator Chuck Huckelberry issued a memorandum
requiring all Pima County employees who work with vulnerable populations to become
fully vaccinated against COVID-19. SOF (Doc. 50) ¶ 4 & Memorandum from C.H.
Huckelberry to Pima Cnty. Bd. of Supervisors; Presiding Judge, Super. Ct.; Elected
Officials; and Appointing Authorities (Oct. 21, 2021) (Exh. “2”). The memorandum’s
definition of vulnerable populations included “those confined either in a detention or
correctional facility[.]” Ibid. On November 2, 2021, the Board of Supervisors issued a
similar memorandum requiring employees who work with vulnerable populations to be
vaccinated by January 1, 2022. SOF (Doc. 50) ¶ 6 & Memorandum from Pima Cnty. Bd.
of Supervisors, COVID-19 Vaccinations of Employees who Work with Vulnerable
Populations (Nov. 2, 2021) (Exh. “3”).
On November 4, 2021, Pima County issued FAQs related to how it will treat
employees who work with vulnerable populations who cannot be vaccinated against
COVID-19 due to a medical condition or sincerely held religious belief. Id. ¶ 7 &
COVID -19 Vaccination Requirements for New Hires, Promotions, and Employees
Working with Vulnerable Populations (Exh. “4”). For those with a medical condition,
Pima County would follow Administrative Procedure 23-29, Reasonable
Accommodation of Applicants and Employees with Disabilities. Id. ¶ 8 & Exh. 4 at FAQ
No. 5. Pima County has an American’s with Disabilities Act (“ADA”) program to deal
with requests for accommodation, including reassignment as an accommodation of last
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resort.1 Id. ¶ 9 & Admin. Proc. No. 23-29, Reasonable Accommodation of Applicants
and Employees with Disabilities (Exh. “5”) & Pima Cnty. Merit Sys. R., R. 8, Promotion,
Demotion, Reappointment, Open Range Reappointment, Reassignment and Detail (Eff.
Date 3/17/2020) (Exh. “6”).
C. Initial Contact with Human Resources
On November 5, 2021, Plaintiff called Pima County Human Resources (“HR”)
requesting information about the ADA accommodations process, and papers to self-
report the need for an accommodation were sent to him that same day. SOF (Doc. 50) ¶
10 & E-mail from Emily Kruspig, Nurse Liaison, Pima Cnty. HR, to Jacob Robbins
(Nov. 5, 2021, 03:29:00 PM) (Exh. “7”). On December 13, 2021, Pima County HR
followed up with Plaintiff to see if he intended to seek a workplace accommodation and
asked that he send completed forms. Id. ¶ 11 & E-mail from Carmen Inocencio, ADA
Coordinator, Pima Cnty. HR, to Jacob Robbins (Dec. 13, 2021, 11:12 AM) (Exh. “8”).
On December 15, 2021, Plaintiff faxed Pima County completed ADA medical inquiry
form stating that he was medically unable to receive the COVID-19 vaccine. Id. ¶ 12 &
Robbins ADA Forms (Exh. “9”). The following day, the ADA panel found Plaintiff
eligible for workplace accommodations and soon after initiated the interactive process
with PCSD to determine what accommodations might be appropriate. Id. ¶ 13 & Pima
Cnty. ADA Panel Review Form—Verification of Eligibility for Reasonable
Accommodations 12/16/2021 (Exh. “10”) & E-mail from Carmen Inocencio, ADA
Coordinator, Pima Cnty. HR, to Yvonne Garcia (Dec. 20, 2021 04:16 PM) (Exh. “11”).
Around this time, Pima County HR spoke with PCSD about the possibility of
Plaintiff being reassigned to PCSD headquarters and was told Plaintiff could not be
reassigned because he would need to be vaccinated to respond to the Detention Center.2
1 Plaintiff disputes Defendant’s description of its ADA program as “robust.” CSOF
(Doc. 54) ¶ 9. It is undisputed that Defendant does have an ADA program as provided in SOF
(Doc. 50), Exh. “5.” The remainder of Plaintiff’s objection is unrelated to the existence of the
ADA program and will not be considered here.
2 Plaintiff disputes this evidence arguing that it misconstrues the evidence, as well as
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SOF (Doc. 50) ¶ 14 & Anderson Depo. at 77:13–79:3 (Jan. 9, 2025) (Exh. “12”) &
Kruspig Depo. at 52:2–11 (Oct. 17, 2024) (Exh. “13”). Lieutenant (now Captain)
Anderson recalls being asked by County HR if Plaintiff could perform his current job
from PCSD headquarters.3 Id. ¶ 15 & Exh. “12” at 77:13–79:3. Ms. Kruspig also recalls
taking exception to any implication “that the interactive process was meaningfully initiated at
that time.” CSOF ¶ 14. In her deposition, Ms. Kruspig was asked about Plaintiff’s statement:
“When Emily Kruspig had called me in the middle of December, she had said the Sheriff’s
Department denied my accommodation of being assigned to headquarters due to my ‘inability to
respond to the jail in the event of a riot’, because of not being able to get the vaccine.” SOF
(Doc. 50), Exh. “13” at 52:2–8. Ms. Kruspig confirmed the accuracy of the statement. Id., Exh.
“13” at 52:10–11.
Lieutenant (now Captain) Cindy Anderson testified:
There was a conversation I had with Emily about if there were any
available positions for corrections sergeant to work at 103. And I explained there
were not any positions – admin – administration building – there were not any
positions open to be filled by a corrections sergeant. She had asked if there’s – if
a corrections sergeant can just be physically working there and not in one of the
other positions, and I said, “There’s no work for a corrections sergeant at the
administration building that isn’t related to a position they’re filled – that they’re
– that they’re in, so if something happens at the jail, they have to go to the jail,
cause that’s where the work is. They can’t physically be at 103 doing work for
the jail or at the jail.”
So that was the conversation had about re- -- about assigning him over to
103 just to work there, still being under the jail umbrella as – as a corrections
sergeant.
Id., Exh. “12” at 78:1–19. Plaintiff asserts that Lt. Anderson’s earlier testimony that to her
knowledge no one in PCSD had looked for a reassignment position prior to December 30, 2021,
contradicts Defendant’s position. See CSOF ¶ 14 & Exh. “1” at 57:24–58:3. This testimony is
not inconsistent with Lt. Anderson’s testimony that she spoke with Emily Kruspig informing her
that there were no Corrections Sergeant positions available at headquarters and such a person
could not simply be assigned to work at headquarters because their duties would still be at the
jail. See SOF (Doc. 50), Exh. “12” at 78:1–19.
3 Plaintiff disputes this statement “to the extent it implies that a formal or documented
inquiry was made.” CSOF (Doc. 54) ¶ 15. The statement speaks for itself. See note 3, supra.
Plaintiff’s accusation that “Anderson changed her testimony[.]” is similarly without merit. Id.
Counsel asked Lt. Anderson about an e-mail written by his client regarding a discussion he had
with Emily Kruspig. See id., Anderson Depo. at 66:8–25 (Jan. 9, 2025) (Exh. “1”); see also note
2, supra. After further questioning of Lt. Anderson, Plaintiff’s counsel stated, “This makes for a
good natural breaking point. Let’s take five, seven, somewhere around there, please.” Id., Exh.
“1” at 77:8–10. Following the break, counsel asked Lt. Anderson, “Is there any of your
testimony from – so far today that you would like to amend, supplement or otherwise add to?”
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discussing with Captain Anderson whether there were any positions available at PCSD
headquarters to which Plaintiff could be assigned. Id. ¶ 16 & Exh. “13” at 52:2–11.
D. Plaintiff’s Reappointment4
Plaintiff’s Corrections Sergeant position requires regular contact with vulnerable
populations such that there is no accommodation, short of reassignment, that would allow
him to do his job.5 SOF (Doc. 50) ¶ 17 & Letter from Cathy Bohland, Director, Pima
Cnty. HR Dept., to Jacob Robbins (Jan. 3, 2022) (Exh. “14”) & Robbins Depo. at 33:2–8,
59:6–9 (Oct. 23, 2024) (Exh. “15”). The only available accommodation for Plaintiff was
reappointment.6 Id. ¶ 18 & Exh. “5” & Exh. “14.”
On January 3, 2022, Plaintiff and Pima County HR began the process of searching
for a position to which he could be reappointed. See id. ¶ 19 & Exh. “14” & Weekly
Summaries of Available Jobs (Exh. “16”) & Emails between Pima County HR and
Plaintiff regarding Available Jobs (Exh. “17”). Pima County HR sent positions to
Plaintiff weekly from January 7, 2022, until February 25, 2022. See id., Exhs. “14,”
“16,” & “17.” In mid-January, Plaintiff contacted PCSD to ask about the reappointment
Id., Exh. “1” at 77:13–15. Lt. Anderson indicated that she wanted to revisit Exhibit 6 (the e-mail
from Plaintiff regarding his discussion with Emily Kruspig) and stated, “[I]n the conversation [I]
had with Emily Kruspig about whether or not, you know, he couldn’t work there because there
was a riot, that sort of thing, I don’t recall making that – the comment about there’s a riot and so
forth.” Id., Exh. “1” at 77:21–25. Her testimony continues as set forth in note 2, supra.
Defendant’s statement of fact speaks for itself.
4 The ADA does not distinguish between “reassignment” and “reappointment.” As such,
the terms are used interchangeably in this Report and Recommendation.
5 Plaintiff disputes this statement, arguing that it misconstrues evidence. CSOF (Doc. 54)
¶ 17. Defendant’s statement refers to “Plaintiff’s Corrections Sergeant position.” SOF (Doc. 50)
¶ 17. This was the position that he held when he requested an accommodation. See Compl.
(Doc. 1) ¶ 12. Defendant’s statement is consistent with the evidence. Plaintiff’s arguments do
not contradict Defendant’s stated fact.
6 Plaintiff disputes this statement asserting that it misstates or misconstrues evidence.
CSOF (Doc. 54) ¶ 18. This statement reflects the procedures outlined in Section IV of
Defendant’s Admin. Proc. No. 23-29, Reasonable Accommodation of Applicants and Employees
with Disabilities, which were communicated to Plaintiff by Ms. Bohland. SOF (Doc. 50), Exh.
“5” at Section IV.B.8–9 & Exh. “6” at 1–2. Defendant’s statement is consistent with the
evidence. Plaintiff’s arguments do not contradict Defendant’s statement.
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process and was told PCSD had not been contacted by Pima County HR.7 Id. ¶ 20 & E-
mail from Aimee Trueblood, PCSD, to Cathy Bohland, HR Director, Pima Cnty. (Jan. 13,
2022 01:53 PM) (Exh. “19”). When Plaintiff told Pima County HR that PCSD had not
been contacted, Pima County HR immediately contacted PCSD about open positions
within the department. SOF (Doc. 50) ¶ 20 & Exhs. “18,” “19.”
PCSD identified four (4) positions that were sent to Plaintiff.8 Id. ¶ 21 & Exh.
“18.” Plaintiff expressed an interest in an opening as a 911 Dispatcher because it paid
closest to his prior position. Id. ¶ 22 & Exh. “15” at 113:5–19. Plaintiff tested for the
position but was unable to qualify for it. Id. ¶ 23. At this same time, Plaintiff began
contacting staff at PCSD and Pima County HR inquiring regarding Sgt. Manny
7 Plaintiff disputes this statement asserting that it misstates or misconstrues evidence.
CSOF (Doc. 54) at ¶ 20. Ms. Trueblood’s response to Ms. Bohland states, “We have not been
contacted by Carmen as of today regarding the interactive process. I have included Lt. Anderson
on this email and she will reach out to Carmen and find out where she is at with Mr. Robbins in
the ADA IP.” Id., E-mail from Aimee Trueblood, PCSD, to Cathy Bohland, HR Director, Pima
Cnty. (Jan. 13, 2022 01:53 PM) (Exh. “2”) at Robbins 000092; SOF (Doc. 50), Exh. “19.” The
mid-December contact between Emily Kruspig and Cpt. Christy Anderson is provided in notes
2–3, supra. It is undisputed that Plaintiff and Pima County HR began the process of searching
for a position on January 3, 2022. CSOF (Doc. 54) ¶ 19. Accordingly, the mid-December
contact is not material.
8 Plaintiff disputes this in part asserting that it misconstrues the evidence. CSOF (Doc.
54) ¶ 21. On January 14, 2022, Carmen Inocencio documented a phone conversation with Cpt.
Christy Anderson, stating:
Per email from Cathy David dated 1/13/2022, I called Lt. Anderson to inquire if
the department had any permanent positions available that Mr. Robbins might be
qualified for, with or without accommodation.
Lt. Anderson provided these jobs and I sen[t] the list to Recruitment to confirm[]
that Mr. Robbins met the MQs for each[.]
* * *
I forwarded the Weekly Summary to Mr. Robbins and informed him that I was
working with Lt. Anderson regarding the availability of permanent positions.
CSOF (Doc. 54), Memorandum from Carmen Inocencio, Pima County HR, Documentation of
phone conversation with Lt. Christy Anderson (Jan. 14, 2022) (Exh.”5”). In deposition, Plaintiff
testified, “It was implied that the Sheriff’s Department knew nothing about me prior to January –
prior to the middle of January, when I, when I personally contacted Christy Anderson.” Id.,
Robbins Depo. at 130:18–21 (Oct. 23, 2024) (Exh. “6”). This statement does not controvert that
four (4) available positions were supplied to him from Pima County HR.
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Hernandez, a fellow Corrections Sergeant, who had been transferred to PCSD
headquarters to work on a new Body Worn Camera project. Id. ¶ 24 & Exhs. “18,” “19.”
At the time Plaintiff submitted his ADA paperwork, there were four positions
filled by Corrections Sergeants outside of the Detention Center, three (3) at PCSD
headquarters and one at the training center. SOF (Doc. 50) ¶ 26 & Exh. 12 at 22:10–16
& Def.’s Suppl. Responses to Pl.’s 2d Set of NUI No. 19 (Exh. “20”). Corrections
Sergeants, like Corrections Officers, are primarily assigned to the Detention Center.9 Id.
¶ 25 & Exh. “12” at 22:6–7. The three (3) Corrections Sergeant positions at headquarters
included one personnel and two (2) internal affairs positions. Id. ¶ 27 & Exh. “12” at
22:10–16 & Exh. “20.” In early 2022, PCSD created an additional Corrections Sergeant
position at headquarters dealing with body worn cameras that were being rolled out to
officers at the Detention Center.10 Id. ¶ 28 & Exh. “12” at 67:22–25. Pima County HR
spoke with PCSD about Sgt. Hernandez and was told he was transferred into the Body
Worn Camera position based on his aptitude for the project.11 Id. ¶ 29 & Exh. “19” at
9 Plaintiff disputes this “in part,” asserting that it misconstrues evidence. CSOF (Doc.
54) ¶ 25. Plaintiff does not dispute that there were four (4) Corrections Sergeant positions
outside of the Detention Center. See id. ¶ 26. Plaintiff does not present any evidence to
demonstrate that other than these four (4) positions—five (5) including the Body Worn Camera
position which was created later—Corrections Sergeants are primarily assigned to the Detention
Center.
10 Plaintiff disputes this “in part” asserting it provides contradictory evidence. CSOF
(Doc. 54) ¶ 28. Plaintiff refers to Defendants’ Supplemental Answers to Plaintiff’s First Set of
NUI No. 1 stating that response reflects the Body Worn Camera position was created in late
2021/early 2022. Id. Plaintiff’s Interrogatory No. 1 states, “Identify all individuals who had
input into the creation of the “Body Worn Camera” position and the selection of Sergeant Manny
Hernandez for that position, in or about late 2021.” Id., Defs.’ Suppl. Answers to Pl.’s 1st Set of
NUI at 1 (Exh. “7”). After objections, Defendant responded, “As the second request refers to
Sergeant Manny Hernandez, the answer will be limited to the position to which Sgt. Hernandez
was assigned.” Id., Exh. “7” at 2. After further objection, Defendant lists individuals who had
input into the position. See id. Defendant does not provide any information regarding when the
position was created. See id. Defendant’s statement does not present contradictory evidence.
11 Plaintiff disputes this asserting that it misstates and misconstrues evidence. CSOF
(Doc. 54) ¶ 29. Plaintiff asserts that “[t]he only rationale provided was that Hernandez was
‘identified and selected to fulfill [the] need’ internally by the department.” Id. ¶ 29 & E-mail
from Octavio Barcelo to Jacob Robbins (Feb. 1, 2022 10:51 AM) at Robbins000087 (Exh. “8”).
In the same exhibit, Octavio tells Emily Kruspig at Pima County HR:
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Robbins 000359.
While Pima County HR was gathering this information, Plaintiff “follow[ed] up
persistently” seeking information from other Pima County HR employees regarding why
Sgt. Hernandez had received the Body Worn Camera position.12 SOF (Doc. 50) ¶30 & E-
mail from Jacob Robbins, via Kristen Robbins’s account, to Carmen Inocencio, ADA
Coordinator, Pima Cnty. HR (Jan. 19, 2022 09:26 AM) (Exh. “21”) (The remainder of
this exhibit reflects the e-mail chain responding to Plaintiff’s inquiry) & Review Boards,
Disciplinary Actions and Grievance Procedures p.2 (Exh. “22”); CSOF (Doc. 54) ¶ 30 &
Exhs. “2,” “8.” Plaintiff was given a general reason for Sgt. Hernandez’s assignment, as
Pima County does not regularly discuss employment decisions, departments can make
assignments based on the needs of the department and the skill set of an employee. SOF
(Doc. 50) ¶ 31 & Exh. “21” at Robbins 000365. After further inquiry from Plaintiff,
Pima County HR informed him:
Sgt. Hernandez is filling . . . specific needs for Sherrif’s Department,
Hernandez was identified and selected to fulfill this need, and he was
internally reassigned to the body camera unit. As I explained in my
previous email to you on January 19, 2022, [t]he Sheriff’s Department is
allowed to move and reassign personnel to meet the needs of the
Department. Staff are not always privy to the decisions of management or
why an employee was selected or not for an internal reassignment. There is
no denial of your accommodation. Your reappointment is the offer of
accommodation. I hope this information helps.
I don’t know if I have an answer, but from my conversation with Lt. Anderson,
Hernandez was selected by the Department after he was identified as having
necessary skills needed by the Department for the body cam unit. Robbins did
not have the needed skill set required by the Dept.
Id., Exh. “8” at Robbins 000087. Defendant’s statement is consistent with the evidence
presented.
12 Plaintiff objects to Defendant’s characterizing his behavior as “hounding.”
Defendant’s description of Plaintiff’s behavior is argumentative. Plaintiff further disputes the
statement based upon a lack of foundation. The e-mails speak for themselves. The Court agrees,
however, that the page from the Review Boards, Disciplinary Actions and Grievances
Procedures lacks foundation for this statement.
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Id. ¶ 32 & E-mail from Octavio Barcelo, PCSD, to Jacob Robbins (February 1, 2022
10:51 AM) (Exh. “23”).
On February 23, 2022, Pima County HR extended Plaintiff’s Medical Leave of
Absence until March 4, 2022, in order to continue working to find him a new position,
past when they would have otherwise. Id. ¶ 33 & E-mail and attachment from Carmen
Inocencio, ADA Coordinator, Pima Cnty. HR, to Jason Parrish, Deputy Dir., Pima Cnty.
HR (Feb. 23, 2022 11:01 AM) (Exh. “24”). On February 28, 2022, Plaintiff informed
Pima County HR that his salary cutoff for a new position was $24.00 per hour. Id. ¶ 34
& E-mail from Jacob Robbins via Kristen Robbins’s account, to Carmen Inocencio, ADA
Coordinator, Pima Cnty. HR (Feb. 28, 2022 12:13 PM) (confirming salary floor) (Exh.
“25”). On March 8, 2022, Pima County offered Plaintiff a position as Program
Coordinator within the Central Human Resources Department. Id. ¶ 35 & E-mail from
Jason Parrish, Deputy Dir., Pima Cnty. HR, to Jacob Robbins (Mar. 8, 2022 05:07 PM)
(Exh. “26”). Later that evening, Plaintiff asked about increasing the starting salary. SOF
(Doc. 50) ¶ 36 & Exh. “26.” The following day, Pima County HR sought and received
permission to reappoint Plaintiff to the Program Coordinator position with a five percent
(5%) raise over starting salary. Id. ¶ 37 & Memorandum from Cathy Bohland, Dir., Pima
Cnty. HR, to Jan Lesher, Acting Cnty. Adm’r (Mar. 9, 2022) (Exh. “27”). Pima County
HR also notified all of the proper authorities. Ibid. On March 10, 2022, the next day,
Plaintiff accepted the offer. Id. ¶ 38 & E-mail from Jacob Robbins to Jason Parrish,
Deputy Dir., Pima Cnty. HR (Mar. 10, 2022 10:27 PM) (Exh. “28”).
On March 14, 2022, Plaintiff began work as a Program Coordinator. Id. ¶ 39 &
Exh. “28.” Plaintiff was initially hired as a Program Coordinator for Occupational
Medicine; however, HR decided to place him in the Leave Administration Unit, which
had other employees available to mentor him. SOF (Doc. 50) ¶ 40 & Parrish Aff. at
Robbins 000129 (July 14, 2022) (Exh. “29”). Plaintiff expressed to Parrish that he was
pleased to work with Doreen Press, the supervisor of Leave Administration, who had
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previously worked at PCSD and helped Robbins with his own leave request in the past.13
Ibid. During his time at HR, Plaintiff regularly stopped by Parrish’s office to speak about
his life and job. Id. ¶ 41 & Exh. “29” at Robbins 000129. Mr. Parrish frequently asked
Plaintiff how things were going. Id., Exh. “29” at Robbins 000129. Plaintiff did not
complain to Mr. Parrish about working in Human Resources or regarding Leave
Administration.14 Ibid. Plaintiff told another staff member that he did not intend to stay
and was getting a job with the Pinal County Department of Corrections. CSOF (Doc. 50)
¶ 41 & Exh. “29” at Robbins 000130.
Plaintiff’s last day in the office was March 31, 2022. Id. ¶ 42 & E-mail from
Jacob Robbins to Doreen Press, Supervisor, Leave Admin., Pima Cnty HR, and Emily
Kruspig, Nurse Liaison, Pima County HR (Apr. 5, 2022 12:50 PM) (Exh. “30”) at
Robbins 0001381–82. He called in sick on April 1, 2022, and then began using paid
leave which the County had provided as an extension of the Families First Coronavirus
Response Act. Ibid. On April 5, 2025, Plaintiff stated that he had a qualifying reason,
filled out paperwork, and indicated that he would be out and paid with this benefit
through the end of the following week, April 15, 2022. Ibid. Plaintiff’s leave was
exhausted on April 15, 2022, and he resigned the same day. SOF (Doc. 50) ¶ 43 & E-
mail from Jacob Robbins to Jason Parrish, Deputy Dir., Pima Cnty. HR, and Doreen
Press, Supervisor, Leave Admin., Pima Cnty. HR (Apr. 15, 2022 12:10 AM) (Exh. “31”).
13 Defendant’s SOF No. 40 stated, “Robbins expressed to Parrish that he was pleased at
this change, as the Leave Administration Unit was headed up by Doreen Press, who had worked
at PCSD . . . .” Plaintiff disputed this fact to the extent it implied that he was satisfied with the
accommodations process or the change in position. This is not a material issue of fact and has
been omitted.
14 Plaintiff disputes this statement in part and asserts that it misstates and/or misconstrues
evidence. CSOF (Doc. 54) ¶ 41. In support of this assertion, Plaintiff cites to portions of his
deposition which he confirms that “other than the fact that [he] w[as] making less than [he] had
previously, there were no other issues with the job that [he] was doing at Pima County HR[.]”
Id., Exh. “6” at 53:11–19. Plaintiff further confirmed that while in that position people treated
him appropriately. Id., Exh. “6” at 53:20–24. Plaintiff did not, however, provide the transcript
with his response to whether he complained to anyone about any treatment. Plaintiff has not
established a disputed issue of fact.
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Plaintiff thanked both Mr. Parrish and Ms. Press for their assistance over the previous
month. Ibid.
D. Corrections Sergeant Positions at PCSD Headquarters
For positions occupied by Corrections Sergeants at PCSD headquarters, PCSD
does not advertise—either internally or externally; accept applications or internal interest
forms; interview; or hire into them directly.15 SOF (Doc. 50) ¶ 44 & Dominguez Aff. ¶ 6
(Mar. 3, 2025) (Exh. “32”). PCSD’s senior management identifies individuals for, and
transfers them into, the positions at PCSD headquarters occupied by Corrections
Sergeants when senior management determines it is time for a change.16 Id. ¶ 45 & Exh.
15 Plaintiff disputes this statement, asserting that it misstates and/or misconstrues
evidence. CSOF (Doc. 54) ¶ 44. Plaintiff points to Cpt. Christy Anderson’s testimony regarding
how Corrections Sergeant positions at headquarters are filled. Id. (citing to Exh. “1” at 24:12–
25:25). Plaintiff did not include page 25 of the Anderson deposition, either in the Court’s docket
or in the printed binder provided to the undersigned. Defendant attached the relevant pages to its
Reply. (Doc. 57, Exh. “A.”) When asked how it is decided who fills the positions of staff
services sergeant, training services sergeant, and internal affairs sergeants, Cpt. Anderson
responded:
It could be done a few different ways. We have competitive reassignment
processes where it can – the lieutenant, captain, that – that chain can decide,
“Let’s open it up for a competitive reassignment,” meaning we open it up to – if
it’s a corrections sergeant position, we open it up to all corrections sergeants to
put in for, and it’s a competitive reassignment. It’s not – it has nothing to do with
pay, has nothing to do with seniority or tenure or – a promotion. It’s nothing like
that. It’s just a reassignment. So that is one way of doing it.
Another way is that we just reassign based on the need, and if we identify
that there’s somebody in particular that we want, that move happens just – just as
that, a – a transfer happens, a reassignment happens. We’re like, “Okay, we want
this person over here,” so they’re replacing this person, this person’s going to go
over there. It happens all the time.
Reply (Doc. 57), Exh. “A” 24:23–25:15. When asked how the department chooses a competitive
reassignment versus individual identification, Cpt. Anderson testified that there is no procedure,
it is based upon the lieutenant or captains discretion. Id., Exh. “A” at 25:16–25. The fact that
these positions can be filled by a competitive process is not material to whether a position was
vacant in this case.
16 Plaintiff disputes this statement “in part,” asserting that it misstates and/or
misconstrues evidence. Captain Anderson’s testimony reflects that how the headquarters
Correction Sergeant positions are filled is up to senior and executive command staff. See note
15, supra.
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“32” ¶ 8 & Dominguez Aff. at Robbins 000125 (July 15, 2022) (Exh. “33”). The
positions at PCSD headquarters occupied by Corrections Sergeants do not have set terms
nor are there policies or procedures for when or how those positions will be filled. Id. ¶
46 & Exh. “32” at ¶ 7. The decision of when, how, and who to place in the positions at
PCSD headquarters occupied by Corrections Sergeants are made by senior and executive
command staff based on what is best for PCSD’s operations.17 Id. ¶ 47 & Exh. “32” ¶ 9
& Exh. “12” at 73:18–74:16.
In December 2021, the Body Worn Camera position did not exist, and the internal
affairs and personnel positions were already occupied.18 SOF (Doc. 50) ¶ 48 & Exh.
“15” at 104:12–105:1. The Body Worn Camera position was created and filled in late
2021/early 2022 when PCSD realized the benefit of having a corrections sergeant
involved in the rollout of body worn cameras to corrections officers.19 SOF (Doc. 50) ¶
49 & Pima County’s Suppl. Answer to NUI No. 2 (Exh. “34”). Manny Hernandez, the
Corrections Sergeant placed in the body Worn Camera position was, like Plaintiff, unable
to get the COVID vaccine due to a medical condition.20 SOF (Doc. 50) ¶ 50 & Exh. “15”
17 Plaintiff disputes this statement “in part,” asserting that it misstates and/or
misconstrues evidence. For the reasons stated in note 15 & 16, supra, the Court finds
Defendant’s statement of fact is consistent with the evidence.
18 Plaintiff disputes this statement, asserting that it misstates and/or misconstrues
evidence. For the reasons stated in note 10, supra, the Defendant did not present contradictory
evidence.
19 Plaintiff disputes this statement in part. CSOF (Doc. 54) ¶ 49. After objection,
Defendant’s response to NUI No. 2 states:
[T]he Body Worn Camera Position was created as a part of evolving discussions
regarding implementing body worn cameras into the jail’s operating procedures in
late 2021. Because the Department did not solicit applications or conduct an[]
interview process, there is not a specific date on which the position was created
and it was never “open and available” to be filled, as Sgt. Hernandez was assigned
to the position in conjunction with the final decision to create the position.
SOF (Doc. 50), Exh. “34.” It is undisputed that Sgt. Hernandez was not hired into the position
until early January 2022. CSOF (Doc. 54) at ¶ 92. Defendant did not present contradictory
evidence.
20 Plaintiff disputes this fact “in part,” asserting that it misconstrues evidence. CSOF
(Doc. 54) ¶ 50. Plaintiff disputes that Manny Hernandez had a pending ADA accommodation
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at 118:17–119:2 & Doctor’s Note Re: Manny Hernandez (Dec. 15, 2021) (Exh. “35”).
E. The Current Litigation
During his deposition, Plaintiff admitted that the vaccine mandate and its effect on
him were not discriminatory.21 SOF (Doc. 50) ¶ 51 & Robbins Depo. at 33:2–8 (Oct. 23,
2025) (Exh. “15”). Plaintiff resigned his employment with Pima County.22 Id. ¶ 52 &
Exh. “31.” Pima County has procedures in place for employees subject to adverse
employment decisions to follow, such as filing a grievance.23 SOF (Doc. 50) ¶ 53 &
PCSD Gen. Order 2023-004, Chapter 6—Review Boards, Disciplinary Actions and
Grievance Procedures, Section XII Grievance and Appeals Procedures at Robbins
001225–001227 (Exh. “36”).
Plaintiff brings this cause of action based on allegations of discrimination in
violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of
1973. Plaintiff also seeks redress pursuant to Section 1983, Title 42, United States Code,
for discriminatory and retaliatory conduct in violation of his Equal Protection rights and a
deprivation of his Due Process property interest in continued employment. See Compl.
(Doc. 1). Plaintiff’s Charges of Discrimination before the EEOC and Arizona Civil
request when he was reassigned. Id. Emily Kruspig testified that based on her review, Sgt.
Hernandez did not go through the ADA accommodation process. Id., Exh. “4” at 65:1–5. It is
undisputed, however, that for those with a medical condition that prevented them from getting
the COVID-19 vaccine, Pima County would follow Administrative Procedure 23-29. SOF (Doc.
50) ¶ 8; CSOF (Doc. 54) ¶ 8. As such, Plaintiff’s distinction is not material.
21 Plaintiff disputes this fact, asserting it misstates and misconstrues evidence. CSOF
(Doc. 54) ¶ 51. Plaintiff’s argument is unsupported by the portions of his deposition to which he
cites. See id., Exh. “6” at 116:24–117:5 (stating Plaintiff did not know why Sgt. Hernandez was
placed at headquarters). Defendant did not misstate or misconstrue the evidence.
22 Plaintiff disputes this statement, asserting it misstates and/or misconstrues evidence
and makes a legal conclusion. CSOF (Doc. 54) ¶ 52. To the extent “voluntarily” implies a legal
conclusion, Plaintiff’s objection is well-taken; however, it is undisputed that Plaintiff’s
resignation e-mail was not requested by anyone from Pima County. See id. ¶ 43.
23 Plaintiff disputes this statement “in part,” asserting that it misconstrues evidence.
CSOF (Doc. 54) ¶ 53. Plaintiff’s feelings about prior grievance experiences are immaterial to
the fact that a procedure exists. Defendant’s statement does not misconstrue the evidence.
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Rights Division (“ACRD”) do not include a retaliation claim.24 SOF (Doc. 50) ¶ 54 &
ACRD Employment Charge of Discrimination (Exh. “37”) & EEOC Form 5—Charge of
Discrimination (Apr. 27, 2022) (Exh. “38”).
III. ANALYSIS
A. Americans with Disabilities Act and the Rehabilitation Act
Defendant asserts that Plaintiff did not suffer employment discrimination under
the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act because he was
reasonably accommodated. Def.’s Mot. for Summ. J. (Doc. 49) at 8–12. Plaintiff urges
that he has “brought forth genuine issues of material fact as to . . . his Discrimination
claims.” Pl.’s Response (Doc. 53) at 9.
1. Legal Standards—Overview
“The ADA contains five titles separately addressing employment, public entities,
public accommodations, telecommunications, and miscellaneous matters.” Stanley v.
City of Sandford, Fla., 606 U.S. 46, 51 (2025) (citing 104 Stat. 327–328). Title I of the
ADA prohibits an employer from “discriminat[ing] against a qualified individual on the
basis of disability.” 42 U.S.C. § 12112(a). The ADA defines a “qualified individual” as
“an individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such a person holds or desires.” 42
U.S.C. § 12111(8). The ADA mandates that “discrimination” includes an employer “not
making reasonable accommodations to the known physical or mental limitations of an
otherwise qualified . . . employee [with a disability], unless [the employer] . . . can
demonstrate that the accommodation would impose an undue hardship on [its]
operation[.]” 42 U.S.C. § 12112(b)(5)(A). A “reasonable accommodation” under the
ADA may include “reassignment to a vacant position[.]” 42 U.S.C. § 12111(9)(B).
24 Plaintiff disputes this statement “in part”; however, he concedes that he did not check
the box for retaliation. CSOF (Doc. 54) ¶ 54. Furthermore, the narrative sections, upon which
he also relies, reasonably state a discrimination claim, but do not suggest retaliation claim. See
SOF (Doc. 50), Exhs. “37,” “38.”
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“The Rehabilitation Act of 1973, 29 U.S.C. §§ 701–794 (1975 & Supp. 1983), was
initially intended primarily to help states develop and implement vocational rehabilitation
services for handicapped persons.” Boyd v. United States Postal Service, 752 F.2d 410,
412 (9th Cir. 1985). “It was later amended to provide more comprehensive protection for
[disabled] persons subjected to discriminatory treatment.” Id. (citing 29 U.S.C. § 701
(1975 & Supp. 1983)). In its current form, the Rehabilitation Act provides “the standards
applied under title I of the Americans with Disabilities Act of 1990 [(“ADA”)] (42
U.S.C. 1211 et seq.) and the provisions of sections 501 through 504, and 510, of the
[ADA] (42 U.S.C. 12201–12204 and 12210), as such sections relate to employment[,]”
are to be used in resolving Rehabilitation Act employment discrimination claims. 29
U.S.C. § 791(f) (2014).
In order to state a prima facie case of failure to accommodate under the ADA,
Plaintiff must show: (1) he is disabled within the meaning of the ADA and Rehabilitation
Act; (2) he is a qualified individual able to perform the essential functions of the job, with
or without accommodation; and (3) he suffered an adverse employment action because of
his disability. Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir.
2012); Wong v. regents of Univ. of Cal., 410 F.3d 1052, 1058 (9th Cir. 2005) (citations
omitted) (outlining the prima facie case of disability discrimination under the ADA and
Rehabilitation Act as it applies to entities that receive federal funding and requiring a
fourth step—showing his employer “receives federal financial assistance (for the
Rehabilitation Act claim) or is a public entity (for the ADA claim).”); see also 42 U.S.C.
§ 12112(a); Kennedy v. Applause, Inc. 90 F.3d 1477, 1481 (9th Cir. 1996) (delineating
elements of an ADA discrimination claim).
2. Factor 1—Disability
It is undisputed that Plaintiff qualifies as an individual with a disability under the
ADA. SOF (Doc. 50) ¶ 3; CSOF (Doc. 54) ¶ 56. As such, the Court need not further
analyze this factor.
. . .
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3. Factor 2—Qualified Individual
As stated, supra, to be protected under the ADA, Plaintiff bears the burden to
show that he is a qualified individual able to perform the essential functions of the job,
with or without accommodation. 42 U.S.C. § 12111(8); Samper v. Providence St.
Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). Congress delegated authority to
implement Title I of the ADA to the Equal Employment Opportunity Commission
(“EEOC”). See 42 U.S.C. § 12116. Accordingly, the EEOC has promulgated regulations
expanding the definition of qualified individual. See Equal Employment for Individuals
with Disabilities, 56 Fed. Reg. 35,726, 35,735 (July 26, 1991); Anthony v. Trax Int’l
Corp., 955 F.3d 1123, 1127 (9th Cir. 2020) (citing Johnson v. Board of Trs. of Boundary
Cnty. Sch. Dist. No. 101, 666 F.3d 561, 564–65 (9th Cir. 2011)). The EEOC regulation
defines “‘qualified,’ with respect to an individual with a disability, [to] mean[] that the
individual satisfies the requisite skill, experience, education and other job-related
requirements of the employment position such individual holds or desires and, with or
without reasonable accommodation, can perform the essential functions of such
position.” 29 C.F.R. § 1630.2(m) (emphasis added); see also Anthony, 955 F.3d at 1127.
The Ninth Circuit has adopted this two-part inquiry—“[t]he court first examines whether
the individual satisfies the requisite skill, experience, education, and other job-related
requirements of the position”; and second, “the plaintiff must establish that []he can
perform those functions with or without reasonable accommodations.” Samper, 675 F.3d
at 1240 (citations omitted); see also Anthony, 955 F.3d at 1128; Johnson, 666 F.3d at
565.
a. Skill, experience, education, and other job-related
requirements of the position
It is undisputed that Plaintiff possessed the requisite skill, experience, education,
and other job-related requirements of the Corrections Sergeant assigned to the detention
center prior to the October 21, 2021, memorandum from County Administrator
Huckelberry. SOF ¶¶ 1, 2. Following County Administrator Huckelberry’s
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memorandum and that of the Board of Supervisors, an additional job-related requirement
was added to Plaintiff’s position—to be vaccinated against COVID-19 by January 1,
2022. Id. ¶¶ 4–6. It is undisputed this additional requirement made it impossible for
Plaintiff to continue in his current position as a Corrections Sergeant assigned to the
detention center working with a vulnerable population. Id. ¶ 17; see Anthony v. Trax Int’l
Corp., 955 F.3d 1123, 1129 (9th Cir. 2020) (quoting 29 C.F.R. pt. 1630, app. to §
1630.2(m)) (emphasis in original) (“The determination of whether an individual with a
disability is qualified is to be made at the time of the employment decision.”). As such,
he was no longer qualified for this position.
The Ninth Circuit has observed “that the first step of the qualification inquiry,
unlike the second step, contains no reference to reasonable accommodation.” Johnson,
666 F.3d at 565. The court went on to posit that “[i]f the EEOC had intended to require
employers to provide reasonable accommodation to ensure that disabled individuals can
satisfy the job prerequisites, in addition to the essential job functions, it presumably could
have said so in the regulation[,] [and] [t]hat the EEOC declined to include any reference
to reasonable accommodation in the first step suggests that such omission was
deliberate.” Id. (citing Fedorenko v. United States, 449 U.S. 490, 512 (1981)).
Therefore, “unless a disabled individual independently satisfies the job prerequisites, []he
is not ‘otherwise qualified,’ and the employer is not obligated to furnish any reasonable
accommodation that would enable [him] to perform the essential job functions.” Id. at
565–66; see Kennedy v. Applause, Inc., 90 F.3d 1477, 1481–82 (9th Cir. 1996) (total
disability prevented plaintiff from being able to perform her job and court did not need to
consider accommodation); Samper, 675 F.3d at 1240–41 (employee could not perform
essential functions of NICU nurse and employer was not obligated to accommodate).
Thus, “[i]n most cases, the essential function and reasonable accommodation
analyses are separate[.]” Samper, 675 F.3d at 1240. The Ninth Circuit has further
observed that in the context of a facial challenge to a qualification standard, “it would
make little sense to require an ADA plaintiff to show that he meets a qualification
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standard that he undisputed cannot meet because of his disability and that forms the very
basis of his discrimination challenge.” Johnson, 666 F3d at 566–67 (quotations and
citations omitted). In a facial challenge, “[i]f the employee succeeds in showing that the
qualification standard has the effect of discriminating on the basis of disability, the
burden then shifts to the employer to show that the qualification standard is (1) job-
related, (2) consistent with business necessity, and (3) that performance cannot be
accomplished by reasonable accommodation.” Id. at 567 (internal quotation and citations
omitted); see also 42. U.S.C. § 12113(a). “Here, however, [Robbins] does not challenge .
. . [Pima County’s vaccination] requirement as a discriminatory job prerequisite.”
Johnson, 666 F.3d at 567. “Rather, the basis for [Plaintiff’s] discrimination claim is the
[County’s] failure to accommodate [his] disability, which is analytically distinct from a
claim of disparate treatment or impact under the ADA.” Id. (citing McGary v. City of
Portland, 386 F.3d 1259, 1265–66 (9th Cir. 2004)).
Properly, summary judgment should be granted in favor of Defendant because it
was impossible for Plaintiff to work in his current position, and as a result, he was no
longer a qualified individual under the ADA. See Anthony, 955 F.3d at 1129. The
parties, however, have treated this case as one for a failure to accommodate.
Furthermore, it is undisputed that Pima County adopted procedures for accommodating
employees who could not be vaccinated due to medical issues. Accordingly, the Court
will analyze the reasonable accommodation step of the two-step inquiry. Contra Anthony
b. Reasonable Accommodation
i. Legal Standards
Under the ADA, “[t]he term ‘reasonable accommodation’ may include . . .
reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B). “Reassignment is the
reasonable accommodation of last resort and is required only after it has been determined
that (1) there are no effective accommodations that will enable the employee to perform
the essential functions of his/her current position, or (2) all other reasonable
accommodations would impose an undue hardship.” EEOC, EEOC-CVG-2003-1,
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Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
ADA (Oct. 17, 2002) at 40 (citing 29 C.F.R. 1630 app. § 1630.2(o)). “Whether an
accommodation is reasonable ‘depends on the individual circumstances of each case, and
requires a fact-specific, individualized analysis of the disabled individual’s circumstances
and the [potential] accommodations.” Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794,
799 (9th Cir. 2017) (alterations in original) (quoting Mark H. v. Hamamoto, 620 F.3d
1090, 1098 (9th Cir. 2010)).
“Once an employer becomes aware of the need for accommodation, that employer
has a mandatory obligation under the ADA to engage in an interactive process with the
employee to identify and implement appropriate reasonable accommodations that will
enable the employee to perform [his] job duties.” Id. (internal quotations and citations
omitted); Dark v. Curry County, 451 F.3d 1078, 1088 (9th Cir. 2006); see also Anthony v.
Trax Int’l Corp., 955 F.3d 1123, 1134 (9th Cir. 2020). “The interactive process requires:
(1) direct communication between the employer and employee to explore in good faith
the possible accommodations; (2) consideration of the employee’s request; and (3)
offering an accommodation that is reasonable and effective.” Zivkovic v. Southern Cal.
Edison, Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (citations omitted). “An employer is
not obligated to provide an employee the accommodation he requests or prefers, the
employer need only provide some reasonable accommodation.” Id. (citations omitted).
The position must be vacant or will become vacant within a reasonable period of time.
Dark v. Curry Cnty., 451 F.3d 1078, 1089–90 (9th Cir. 2006). Furthermore, “the ADA
does not impose a duty to create a new position to accommodate a disabled employee.”
Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) (citations
omitted). Nor does the ADA require an employer to promote a disabled employee as an
accommodation. See 29 C.F.R. § 1630.2(o); see also Martin v. Lockheed Martin Missiles
and Space Co., 187 F.3d 648, at *2 (9th Cir. 1999) (unpublished) (citations omitted).
Finally, the ADA does not require an employer to “bump” another employee from a
position in order to create a vacancy. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 409
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(2002) (O’Connor, J. concurring) (citations omitted).
ii. Interactive Process
It is undisputed that on November 5, 2021, Plaintiff called Pima County HR
requesting information about the ADA accommodations process, and papers to self-
report the need for an accommodation were sent to him that same day. SOF (Doc. 50) ¶
10. On December 15, 2021, Plaintiff faxed his completed medical inquiry form stating
that he was medically unable to receive the COVID-19 vaccine to Pima County HR. Id. ¶
12. The following day, the ADA panel found Plaintiff eligible for workplace
accommodations and soon after initiated the interactive process with PCSD to determine
what accommodations might be appropriate. Id. ¶ 13. On January 3, 2022, Plaintiff and
Pima County HR began the process of searching for a position to which he could be
reappointed. Id. ¶ 19. Pima County HR sent positions to Plaintiff weekly from January
7, 2022 until February 25, 2022. Ibid.
In mid-January, Plaintiff contacted PCSD to ask about the reappointment process
and was told PCSD had not been contacted by Pima County HR. SOF (Doc. 50) ¶ 20.
Plaintiff informed Pima County HR that PCSD had not been contacted; Pima County HR
immediately contacted PCSD about open positions within the department. Id. PCSD
identified four (4) positions that were sent to Plaintiff. Id. ¶ 21. Plaintiff expressed an
interest in an opening as a 911 Dispatcher because it paid closest to his prior position;
however, he was unable to qualify. Id. ¶¶ 22–23. At this same time, Plaintiff began
contacting staff at PCSD and Pima County HR inquiring regarding Sgt. Manny
Hernandez, a fellow Corrections Sergeant, who had been transferred to PCSD
headquarters to work on a new Body Worn Camera project. Id. ¶ 24.
On February 23, 2022, Pima County HR extended Plaintiff’s Medical Leave of
Absence until March 4, 2022, in order to continue working to find him a new position,
past when they would have otherwise. SOF (Doc. 50) ¶ 33. On February 28, 2022,
Plaintiff informed Pima County HR of his salary requirements. Id. ¶ 34. On March 8,
2022, Pima County offered Plaintiff a position as Program Coordinator within the Central
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Human Resources Department. Id. ¶ 35. Plaintiff asked about increasing the starting
salary, the County granted a five percent (5%) increase over starting, and Plaintiff
accepted. Id. ¶ 38. On March 14, 2022, Plaintiff began work as a Program Coordinator.
Id. ¶ 39.
Plaintiff raises several issues regarding this process, which the Court will address
in turn.
iii. Proximity Between Protected Activity and Refusal to
Accommodate
Plaintiff asserts that his “October 2021 grievance was followed within weeks by
Defendant’s inaction on his accommodation, exclusion from reassignment, and later
denial of rehire – support an inference of discriminatory motive.” Response (Doc. 53) at
10. Plaintiff’s assertions are without merit.
As an initial matter, there were nine (9) business days between the approval of
Plaintiff’s request for a workplace accommodation and the beginning of the interactive
process. SOF ¶¶ 13, 19. Furthermore, this time period encompassed the Christmas and
New Year’s holidays. See id. It is presumed that no one took any vacation time. Nine
(9) business days does not equate to inaction on his accommodation claim.
Moreover, Plaintiff did not make either a retaliation claim or a failure to rehire
claim in his Complaint (Doc. 1) or before the EEOC. SOF ¶ 54. “Title VII directs that a
‘charge . . . shall be filed’ with the EEOC ‘by or on behalf of a person claiming to be
aggrieved’ within 180 days ‘after the alleged unlawful employment practice occur[s.]’”
Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541, 544 (2019) (quoting 42 U.S.C. § 2000e-
5(b), (e)(1)). “Title I [of the ADA] . . . incorporates Title VII's charge requirement[.]”
Zimmerman v. Oregon Dep't of Just., 170 F.3d 1169, 1178 (9th Cir. 1999); see 42 U.S.C.
§ 12117(a). Title VII’s charge-filing requirement is a mandatory processing rule. Fort
Bend Cnty., Tex., 587 U.S. at 551. Additionally, the scope of a Title I “claimant’s court
action depends upon the scope of both the EEOC charge and the EEOC investigation.”
Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). Defendant properly objects to any
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attempt to add these claims through a responsive filing. See Reply (Doc. 57) at 8–9.
Finally, the Court will address Plaintiff’s argument that he “excluded” from
reassignment below.
iv. Prompt Engagement in the Interactive Process
Plaintiff asserts that “Defendant’s complete failure to take any action during
December 2021 to process Plaintiff’s ADA accommodation—despite having approved
his eligibility on December 16—strongly supports a claim of discrimination.” Response
(Doc. 53) at 10. Plaintiff’s argument is without merit.
As stated in the previous section, there were nine (9) business days between the
approval of Plaintiff’s request for a workplace accommodation and the beginning of the
interactive process. SOF ¶¶ 13, 19. Furthermore, this time period encompassed the
Christmas and New Year’s holidays. See id. It is presumed that no one took any
vacation time. Nine (9) business days does not equate to inaction on his accommodation
claim. Additionally, a telephone conversation took place between Emily Kruspig of Pima
County HR and Cpt. Christy Anderson at some point in mid-December. Id. ¶ 14. Ms.
Kruspig inquired about assigning Plaintiff to headquarters, but Ms. Anderson explained
there were not any positions open for a corrections sergeant, and that he would not be
able to fulfill his then current responsibilities at the detention center from headquarters.
Id., Exh. “12” at 78:1–19. Although this conversation is not material to the beginning of
the interactive process, it is some evidence that Defendant was seeking information
regarding possible accommodations.
v. Failure to Consider Plaintiff for Headquarters Position
Plaintiff asserts that “Defendant cannot excuse its failure to consider Plaintiff for
the Body Worn Camera (BWC) position or Personnel by asserting those positions were
internally filled or not publicly posted.” Response (Doc. 53) at 10–11. Defendant does
not need to “excuse its failure” because it was not required to offer Plaintiff those
positions.
The ADA only requires “reassignment to a vacant position.” 42 U.S.C. §
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12111(9)(B) (emphasis added). In contemplating the effect of a seniority system on a
reassignment under the ADA, Justice O’Connor observed, “[t]he work ‘vacant’ means
‘not filled or occupied by an incumbent [or] possessor.’” U.S. Airways, Inc. v. Barnett,
535 U.S. 391, 409 (2002) (O’Connor, J. concurring) (quoting Webster’s Third New Int’l
Dictionary 2527 (1976)). “In the context of a workplace, a vacant position is a position
in which no employee currently works and to which no individual has a legal
entitlement.” Id. Justice O’Connor provided the following example:
[I]n a workplace without a seniority system, when an employee ceases
working for the employer, the employee’s former position is vacant until a
replacement is hired. Even if the replacement does not start work
immediately, once the replacement enters into a contractual agreement with
the employer, the position is no longer vacant because it has a “possessor.”
In contrast, when an employee ceases working in a workplace with a legally
enforceable seniority system, the employee’s former position does not
become vacant if the seniority system entitles another employee to it.
Instead, the employee entitled to the position under the seniority system
immediately becomes the new ‘possessor’ of that position.
Id. Justice O’Connor reiterated, “Congress did not intend reasonable accommodation to
require bumping other employees.” Id. (citations omitted). Although the instant case
does not involve a seniority system, Justice O’Connor’s example is instructive.
PCSD’s senior management identifies individuals for, and transfers them into the
positions at PCSD headquarters occupied by Corrections Sergeants when senior
management determines it is time for a change. SOF (Doc. 50) ¶ 45. The headquarters
Corrections Sergeant positions do not have set terms nor are there policies or procedures
for when or how to fill them. Id. ¶ 46. These decisions are made by senior and executive
command staff based on what is best for PCSD’s operations. Id. ¶ 47.
At the time Plaintiff submitted his ADA paperwork, there were four positions
filled by Corrections Sergeants outside of the Detention Center, three (3) at PCSD
headquarters and one at the training center. Id. ¶ 26. The three (3) Corrections Sergeant
positions at headquarters included one personnel and two (2) internal affairs positions.
Id. ¶ 27. In December 2021, the Body Worn Camera position did not exist, and the
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internal affairs and personnel positions were already occupied. SOF (Doc. 50) ¶ 48.
The Body Worn Camera position did not exist until early January 2022. Although
the PCSD senior command staff may have been discussing the idea in December 2021,
the evidence demonstrates that “Sgt. Hernandez was assigned to the position in
conjunction with the final decision to create the position.” Id., Exh. “34” (Defendant’s
response to NUI No. 2). It is undisputed that Sgt. Hernandez was not hired into the
position until early January 2022. CSOF (Doc. 54) at ¶ 92. Furthermore, it is undisputed
that Sgt. Hernandez was unable to receive the COVID vaccine due to a medical
condition. SOF (Doc. 50) ¶ 50. At oral argument, counsel urged that Sgt. Hernandez did
not have an ADA claim, but rather was seeking an accommodation under Pima County’s
policy. This is a distinction without a difference. Counsel also suggested that Plaintiff
filed his accommodation paperwork first, implying that he should have had access to the
Body Worn Camera position before Sgt. Hernandez. The ADA does not give a hierarchy
of disabilities nor does it espouse a “first in time, first in right” priority principle. As
such, Plaintiff did not possess a “superior” right to an accommodation. “Whether an
accommodation is reasonable ‘depends on the individual circumstances of each case, and
requires a fact-specific, individualized analysis of the disabled individual’s circumstances
and the [potential] accommodations.” Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794,
799 (9th Cir. 2017) (alterations in original) (quoting Mark H. v. Hamamoto, 620 F.3d
1090, 1098 (9th Cir. 2010)).
The ADA “seeks to diminish or to eliminate the stereotypical thought processes,
the thoughtless actions and the hostile reactions that far too often bar those with
disabilities from participating fulling in the Nation’s life, including the workplace.” U.S.
Airways, 535 U.S. at 1522–23. “These objectives demand unprejudiced thought and
reasonable responsive reaction on the part of employers . . . [t]hey do not, however,
demand action beyond the realm of the reasonable.” Id. at 1523. Plaintiff’s demand for a
position that did not exist, which was then created for another co-worker who required a
similar medical accommodation as Plaintiff, is not reasonable. Plaintiff has failed to
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show that the Body Worn Camera position was vacant.
In February, the Corrections Sergeant in personnel changed over. CSOF (Doc.
54), Exh. “1” at 27:14–28:22. The Corrections Sergeant who replaced the outgoing
Sergeant was identified and began work in the position on February 2, 2022, prior to the
outgoing Sergeant’s last day, February 17, 2022. Id., Exh. “1” at 28:13–22. The record
does not reflect when the new Sergeant was identified. As a result, Plaintiff has not
identified evidence in the record that this position was “vacant” as required by the ADA,
and necessary to refute Defendant’s contention to the contrary. The record shows this
position was never “vacant”—it was occupied by a possessor and not available to be
filled. As such, Plaintiff cannot meet his burden to show that accommodation seems
reasonable on its face.25 See U.S. Airways, 535 U.S. at 401.
Defendant asserts that the personnel decisions made by senior and executive
Command Staff are based on what is best for PCSD’s operations and considered
fundamental governmental policy under Arizona law. See Def.’s Mot. for Summ. J.
(Doc. 49) at 11) (citing A.R.S. § 12-820.01(B)(2)) (“The determination of a fundamental
governmental policy involves the exercise of discretion and shall include, but is not
limited to . . . [a] determination of whether and how to spend existing resources,
including those allocated for equipment, facilities and personnel.”). Moreover,
Defendant was not required to “bump” another employee from the position in order to
create a vacancy. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 409 (2002) (O’Connor, J.
concurring) (citations omitted). The Court finds there were no vacant positions in
headquarters available to Plaintiff for reassignment.
vi. Plaintiff received a reasonable accommodation
Defendant Pima County communicated with Robbins to explore possible
25 Plaintiff’s response contains only passing reference to the “Personnel” position. Pl.’s
Response (Doc. 53) at 6, 10. Speculation is insufficient to defeat summary judgment. See
Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1075) (citations omitted)
(recognizing “mere allegation and speculation do not create a factual dispute for purposes of
summary judgment”).
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accommodations. It extended his leave to allow additional time to find an available
position. See Dark v. curry County, 451 F.3d 1078, 1090 (9th Cir. 2006) (recognizing
unpaid medical leave or an extension of an existing leave period may be a reasonable
accommodation). The evidence supports that Defendant’s efforts were made in good
faith and it considered Plaintiff’s request. Finally, it offered Plaintiff a position, which he
accepted. “The reassignment was a reasonable accommodation because no
accommodation would allow [Robbins] to perform the essential functions of the
[Corrections Sergeant] position, and there were no vacant equivalent position to which
[Pima County] could reassign [Robbins].” Reza v. Int’l Game Tech., 351 Fed. App’x 188
(9th Cir. 2009) (citing 42 U.S.C. § 12111(9)(B); then citing Dark, 451 F.3d at 1089); then
citing 29 C.F.R. pt. 1630, app. § 1630.2(o)).
4. Factor 3—Adverse Employment Action
Plaintiff cannot demonstrate that he suffered an adverse employment action.
Plaintiff was reassigned to the Program Coordinator position within the Central Human
Resources Department. SOF (Doc. 50) at ¶¶ 35–38. On March 14, 2022, he began work
as a Program Coordinator. Id. ¶ 39. He was initially hired as a Program Coordinator for
Occupational Medicine, but HR decided to place him in the Leave Administration Unit,
which had other employees available to mentor him. Id. ¶ 40. Plaintiff did not complain
to any HR staff about working in Human Resources or regarding Leave Administration.
Id. ¶ 41. Plaintiff’s last day in the office was March 31, 2022. Id. ¶ 42. Upon exhausting
his leave on April 15, 2022, Plaintiff tendered his resignation. SOF (Doc. 50) at ¶ 43.
To the extent that Plaintiff has made a claim for constructive discharge, it must
fail. “The constructive-discharge doctrine contemplates a situation in which an employer
discriminates against an employee to the point such that his ‘working conditions become
so intolerable that a reasonable person in the employee’s position would have felt
compelled to resign.’” Green v. Brennan, 578 U.S. 547, 555 (2016) (quoting
Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004)). To establish a claim for
constructive discharge “[a] plaintiff must prove first that he was discriminated against by
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his employer to the point where a reasonable person in his position would have felt
compelled to resign[,] . . . [b]ut he must also show that he actually resigned. Id. (citations
omitted). “The whole point of allowing an employee to claim ‘constructive’ discharge is
that in circumstances of discrimination so intolerable that a reasonable person would
resign, we treat the employee's resignation as though the employer actually fired him.”
Id. at 560 (citing Suders, 542 U.S. at 141–143). Here, there is no evidence to support a
finding that Plaintiff was discriminated, let alone to such a degree that he felt compelled
to resign. Plaintiff’s resignation was the result of personal choice, not discrimination.
5. Conclusion
Plaintiff has failed to meet his burden to establish a prima facie case of
discrimination under the ADA or the Rehabilitation Act. Accordingly, it is recommended
that summary judgment on Plaintiff’s ADA/Rehabilitation Act claims be granted.
B. Equal Protection
Defendant asserts that “Plaintiff fails to show Pima County was motivated by
discriminatory intent in treating Plaintiff differently from similarly situated employees or
to identify a similarly situated individual who was treated differently than he.” Def.’s
Mot. for Summ. J. (Doc. 49) at 13. Plaintiff asserts that he is entitled to “proceed under a
‘class-of-one’ theory by showing that his differential treatment was arbitrary or based on
personal animus.” Response (Doc. 53) at 16 (citing Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000)). Plaintiff further asserts that he “was the only former PCSD
employee not rehired over a three-year period, despite requesting return in similar
circumstances to at least six other employees who resigned or were terminated due to
vaccine noncompliance.” Id. Plaintiff’s claim is without merit.
“[A] local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agents.” Monell v. Dept. of Soc. Services of New York, 436 U.S. 658,
694 (1978). “Instead, it is when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible under §
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1983.” Monell, 436 U.S. at 694. The Fourteenth Amendment to the United States
Constitution provides that no state shall “deny any person within its jurisdiction the equal
protection of the laws.” U.S. Const., Amend. XIV § 1. The Supreme Court of the United
States has observed that its “equal protection jurisprudence has typically been concerned
with governmental classifications that affect some groups of citizens differently than
others.” Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 601 (2008) (quotations and
citations omitted). “[T]he class-of-one theory of equal protection[,] . . . presupposes that
like individuals should be treated alike, and that to treat them differently is to classify
them in a way that must survive at least rationality review.” Id. at 605. This “is simply a
poor fit in the public employment context.” Id. “To treat employees differently is not to
classify them in a way that raises equal protection concerns[;] [r]ather, it is simply to
exercise the broad discretion that typically characterizes the employer-employee
relationship.” Id. The Supreme Court’s conclusion that “the class-of-one theory of equal
protection has no application in the public employment context” is based on the
“common-sense realization that government offices could not function if every
employment decision became a constitutional matter.” Id. at 606 (quoting Connick v.
Meyers, 461U.S. 138, 143 (1983)).
Here, Plaintiff’s Complaint states “Defendants’ discriminatory and retaliatory
conduct violated Plaintiff’s rights under the Equal Protection Clause of the Fourteenth
Amendment.” (Doc. 1 ¶ 73). The Complaint is devoid of facts to suggest a failure to
rehire or retaliation. Plaintiff cannot seek to add claims at this juncture. Moreover,
Plaintiff cannot establish a class-of-one equal protection claim because such a theory “has
no application in the public employment context.” Engquist, 553 U.S. at 606.
Accordingly, it is recommended that Defendant be granted summary judgment on
Plaintiff’s equal protection claim.
C. Due Process
Defendant seeks summary judgment on Plaintiff’s due process claim. Def.’s Mot.
for Summ. J. (Doc. 49) at 14. Plaintiff’s Complaint asserts that he “had a Fourth
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Amendment due process ‘property right’ to his job (continued employment), but his job
was taken away from him without the opportunity to appeal that job loss or have a due
process evidentiary hearing on the job loss, and thus his job was taken in violation of his
federal constitutional right to due process.” (Doc. 1 ¶ 77). In response to Defendant’s
motion, Plaintiff claims not only did he have a property interest “in continued public
employment with access to CORP retirement benefits[,]” but also that he “had a liberty
interest in avoiding reputational stigma that could foreclose future employment
opportunities.” Response (Doc. 53) at 17.
Due Process “requires ‘some kind of hearing’ prior to the discharge of an
employee who has a constitutionally protected property interest in his employment.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citing Board of Regents
of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972); then citing Perry v. Sindermann,
408 U.S. 593, 599 (1972)). “[T]he requirements of due process do not apply[, however,]
unless [Plaintiff] can first show that [he] has a cognizable liberty or property interest[.]”
Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990) (citing Roth, 408 U.S. at 571).
“Property interests . . . are not created by the Constitution[;] [r]ather[,] they are created
and their dimensions are defined by existing rules or understandings that stem from an
independent source[.]” Roth, 408 U.S. at 577. “Where there is no right, no process is
due under the Constitution.” Dorfmont, 913 F.2d at 1403 (citations omitted).
Here, Plaintiff did not have a constitutionally protected property interest in his
employment because he resigned. As discussed, supra, Plaintiff was not constructively
discharged and cannot produce any evidence to demonstrate that he was deprived of a
property interest. Rather, he relinquished any property interest voluntarily. Furthermore,
Plaintiff raises a loss of a liberty interest in “avoiding reputational stigma that could
foreclose future employment opportunities” for the first time in response to summary
judgment. This is a completely speculative claim, Plaintiff does not assert that he has
suffered reputational stigma, rather that now he must somehow avoid it. Moreover, there
is no evidence that Pima County “in declining to rehire [Plaintiff] . . . [made] any charge
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against him that might seriously damage his standing and associations in his community.”
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972). “[T]here is no
suggestion whatever that the [Plaintiff’s] ‘good name, reputation, honor, or integrity’ is at
stake.” Id. “Similarly, there is no suggestion that the State, in declining to re-employ the
respondent, imposed on him a stigma or other disability that foreclosed his freedom to
take advantage of other employment opportunities.” Id. Summary judgment should be
granted on Plaintiff’s due process claim.
IV. RECOMMENDATION
Based upon the foregoing, the Court finds that Plaintiff has failed to meet his
burden in opposing Defendant’s motion for summary judgment. Accordingly, the
Magistrate Judge recommends that the District Court enter an order:
(1) GRANTING Defendant Pima County’s Motion for Summary Judgment
(Doc. 49); and
(2) ENTERING Judgment for Defendant Pima County.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure, any party may serve and file written objections within fourteen (14) days
after being served with a copy of this Report and Recommendation. Fed. R. Civ. P.
72(b)(2). A party may respond to another party’s objections within seven (7) days after
being served with a copy. No replies shall be filed unless leave is granted from the Hon.
Angela M. Martinez. If objections are filed, the parties should use the following case
number: CV-23-00362-TUC-AMM.
Failure to file timely objections to any factual or legal determination of the
Magistrate Judge may result in waiver of the right of review. The Clerk of the Court
shall terminate the magistrate reference and send a copy of this Report and
Recommendation to all parties.
Dated this 4th day of February, 2026.
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