Cruz v. Arizona Department of Transportation

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Rebecca Cruz,
Plaintiff,
v.
Arizona Department of Transportation,
Defendant.
No. CV-23-02383-PHX-ROS
ORDER
Plaintiff Rebecca Cruz brought this action under the Americans with Disabilities
Act (“ADA”), the Rehabilitation Act, and the Arizona Civil Rights Act (“ACRA”) alleging
discrimination on the basis of disability, failure to accommodate, and retaliation by her
employer, Defendant Arizona Department of Transportation. Before the Court are
Defendant’s Motion for Summary Judgment, (Doc. 49), and Plaintiff’s Motion for
Summary Judgment or for Partial Summary Judgment (Doc. 50). The Motions are fully
briefed. For the reasons below, both Motions (Docs. 49; 50) will be denied.
I. Background1
Plaintiff is a military veteran of the Air National Guard and the Air Force. She was
evaluated by the Veterans’ Benefits Administration (“VA”) for posttraumatic stress
disorder and migraines; the VA found Plaintiff had “a total service-connected disability
that was permanent in nature” and that her PTSD was 100% disabling and her migraines
50% disabling, resulting in “very frequent completely prostrating and prolonged attacks.”
1 Unless otherwise noted, all facts set forth below are undisputed or not subject to
reasonable dispute based on proffered admissible evidence.
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(Doc. 51-8 at 3).
Plaintiff began working for Defendant on March 1, 2021, as an Executive
Consultant in the Financial Management Services division (“FMS”). (Doc. 33 ¶ 19). At
that time, all FMS employees, including Plaintiff, worked remotely due to COVID-19
restrictions. (Docs. 33 at ¶ 20; 41 at 9). Plaintiff’s supervisor was Kristine Ward,
Defendant’s Chief Financial Officer. During her first year of employment, Plaintiff’s
performance review reflected that she met expectations (Doc. 49-1 at 66-73). In March
2022, FMS announced a return to a hybrid work schedule rather than fully remote work.
(Doc. 49 at 2-3). The hybrid schedule would require employees to work in-office two
scheduled days per week. (Id.) Transitioning to in-person work concerned Plaintiff because
“spending time in public places and/or driving or being a passenger in a vehicle triggered
[Plaintiff’s] PTSD symptoms, the aftermath of which could last many hours,” and “the
onset of PTSD symptoms often triggered [her] migraines which would incapacitate her
completely.” (Doc. 33 ¶¶ 28-29).
Plaintiff then submitted an accommodation request to Defendant’s Civil Rights
Office (“CRO”) seeking permission to work from home permanently. (Doc. 51-5 at 1). She
stated that she would have “huge difficulty performing any tasks” if required to travel to
the office to work and that “Even being physically present at work two days a week would
significantly trigger [her] disabilities.” (Id.) Plaintiff had her initial interactive meeting with
CRO on March 16, 2022. (Doc 49-2 at 7).
Plaintiff, among other FMS employees, worked four ten-hour days each week with
the fifth day as a “flex” day. (Doc. 56 at 12). Plaintiff learned that some FMS employees
had their “flex” days on one of their assigned in-office days and thus did not have to come
to the office on those days; as a result, they only had one in-office day rather than two.
Plaintiff spoke to Tim Newton, the Deputy Chief Financial Officer, and asked if she could
move her “flex” day to coincide with one of her assigned “in-office days” to similarly
reduce the times she was required to come in to the office. (Doc. 33 ¶ 30). But Newton
informed her she would need to formally go through the CRO to seek an accommodation
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if she wanted to use her flex day as such. (Docs. 33 ¶¶ 30-33; 56 at 12-13).
CRO staff met with Ward and Newton to discuss Plaintiff’s job functions and
possible accommodations. Newton stated that “there weren’t any physical aspects to the
position, other than the occasional box needing to be moved, walking to meet with people,
and physically attending meetings” and “in a ‘clinical’ sense, there aren’t any tasks that
can’t be performed remotely,” but that “the quality of the work needed[] can’t be done
without the deeper relationships being built.” (Doc. 49-2 at 23-34). Ward stated “we hired
the job with the premise of coming into the office, this position has always been and [sic]
in-office position” and indicated in-office attendance was important because the position
is “a leadership role and they need to model good practices,” and she was “concerned about
setting precedents” because “she is aiming to have people be back in the office.” (Id. at
25).
When asked about accommodation possibilities, Ward and Newton indicated that
“if Plaintiff nee[ed] to step away, she [would] be allowed to do so” and there were “nursing
rooms with rocking chairs available,” or Plaintiff could “utilize Tim Newton’s office, as
needed” and “Mr. Newton can grab his laptop and leave for an hour.” (Doc. 49-2 at 25).
Ward suggested that “[Plaintiff] can arrive in advance of the day as needed” to “allow her
time to decompress from the drive,” and “perhaps [Plaintiff] would find a pre-work
meditation practice helpful.” (Id.)
The CRO received documentation from Plaintiff’s medical providers in the form of
medical status reports (“MSRs”) and supplemental questionnaires. Each provider
recommended permanent remote work and marked Plaintiff’s disability as permanent. (See
Docs. 51-8; 51-9). One provider stated Plaintiff “cannot drive or operate an automobile or
be transported in a vehicle at this time unless under emergency situations” and noted that
treatment would work “towards [Plaintiff] eventually being able to travel again in vehicles
by driving and being driven. This may take a significant time to achieve.” (Doc. 51-8 at 6-
7). He further indicated a prognosis of six months to see improvement. (Doc. 51-9 at 2-4).
Another provider noted “this is a permanent lifelong process with severe exacerbations.”
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(Doc. 51-8 at 12). In response to communication from Defendant that “the option to work
remote, full time, indefinitely is not an option,” one provider wrote “I am unable to safely
recommend any other alternative work accommodation at this time.” (Doc. 51-9 at 36).
On May 16, 2022, CRO officers informed Plaintiff they intended to deny her
permanent remote work accommodation but would offer other accommodations, such as
the use of nursing rooms for breaks. (Doc. 51 ¶ 23). Plaintiff alleges the CRO officers
“advised that they were preparing a determination memo and would check back in a month
or two to make sure everything was fine” (Doc. 51 ¶ 24), and Defendant states, “[Plaintiff]
rejected the accommodations proposed by the CRO” and “the interactive process was set
to continue and no determination memo was prepared.” (Doc. 57 at 4). On August 2, 2022,
after receiving further supplemental medical reports, the CRO sent Plaintiff a written
determination memo. It denied her request for permanent full-time remote work but granted
temporary remote work until February 13, 2023, at which time Plaintiff would be expected
to return to the office.
Plaintiff learned of two open positions in another department under the management
of Lisa Pounds. (Doc. 49 at 7). Plaintiff met with Pounds, and Pounds subsequently emailed
Wendy Brazier in the Human Resources department inquiring about the
“possibility/logistics” of a transfer. (Docs. 49 at 7; 51-26 at 1). Brazier notified Pounds that
Plaintiff had an ADA accommodation and a meeting was set to discuss it. (Doc. 51-26 at
1-2). Plaintiff heard nothing else until she received an email announcing the positions had
been filled. Subsequently Pounds offered Cruz a different position, two grades lower and
making $40,000 less than Plaintiff’s current position. (Doc. 56 at 5).
Before Plaintiff’s temporary remote work accommodation ended in February 2023,
she requested and was granted an extension until March 13, 2023. (Docs. 33 ¶ 92; 49 at 6).
Plaintiff believed the temporary grants of remote work, each with an expectation of a return
to office work, were inappropriate, and they caused her significant stress and anxiety. (Doc
51 at ¶ 32, 34-35). On March 6, 2023, she submitted a second accommodation request
again requesting a permanent remote work accommodation. (Doc. 51-13 at 1). On March
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16, 2023, Defendant approved Plaintiff to work remotely until a final decision was made.
(Doc. 51-13 ¶ 36).
On October 6, 2023, Defendant issued a determination letter purportedly granting
Plaintiff a full-time remote work accommodation. The memo stated: “the telework
accommodation has been provided on a temporary basis[,] but this memorandum will
confirm that you have been approved [for] full-time telework on an ongoing basis.” (Doc.
51-17 at 1). Plaintiff subsequently brought this action in November 2023. Plaintiff and
Defendant each move for summary judgment on all claims.
II. Legal Standard
A court must grant summary judgment if the pleadings and supporting documents,
viewed in the light most favorable to the nonmoving party, “show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The moving party bears the initial responsibility of presenting the basis for its motion and
identifying those portions of the record that it believes demonstrates the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323. The non-moving party must then
point to specific facts establishing there is a genuine issue of material fact for trial. Id.
At summary judgment, the Court considers only admissible evidence. See Fed. R.
Civ. P. 56(c)(1)(B). When considering a motion for summary judgment, a court should
not weigh the evidence or assess credibility; instead, “the evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists “if the
[admissible] evidence is such that a reasonable jury could return a verdict for the non-
moving party.” Id. at 248. In ruling on the motion for summary judgment, the Court will
construe the evidence in the light most favorable to the non-moving party. Barlow v.
Ground, 943 F.2d 1132, 1135 (9th Cir. 1991).
To establish a claim for discrimination on the basis of disability, Plaintiff must show
“(1) that she is disabled within the meaning of the ADA; (2) that she is a qualified
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individual with a disability; and (3) that she was discriminated against because of her
disability.” Smith v. Clark County School Dist., 727 F.3d 950, 955 (9th Cir. 2013); see also
Walton v. U.S. Marshals Service, 492 F.3d 998, 1005 (9th Cir. 2007) (The ADA’s
“standards of substantive liability are incorporated in the Rehabilitation Act.”). “Notably,
the ADA standards for disability discrimination claims apply to similar claims brought
under the Arizona Civil Rights Act (“ACRA”), A.R.S. § 41–1463, as the ACRA is modeled
after federal employment discrimination laws.” Whitmire v. Wal-Mart Stores Incorporated,
359 F.Supp.3d 761, 792 (D. Ariz. 2019) (citation modified).
III. Discussion
a. Disparate Treatment
“To show a prima facie case of disparate treatment under the ADA, [Plaintiff] must
show that, within the meaning of the statute, [s]he: (1) is disabled; (2) is qualified; and (3)
suffered an adverse employment action because of [her] disability” that “materially
affected a term of [her] employment.” Jefferson v. Time Warner Cable Enters. LLC, 584
F. App’x 520, 522 (9th Cir. 2014). There is no dispute that Plaintiff is disabled or that
Plaintiff is a qualified individual. (Docs. 33 ¶¶ 115-116; 34 ¶¶ 115-116). Thus, the only
element at issue is whether Plaintiff has suffered an adverse employment action as a result
of her disability.
Plaintiff asserts she suffered adverse employment actions through the denial of the
ability to use her “flex” day to cover one of her in-office workdays, denial of a lateral
transfer opportunity followed by an offer to transfer to an inferior position, inappropriate
implementation of the interactive process, and negative behaviors toward Plaintiff by Ms.
Ward. Defendant contends Plaintiff’s claim fails as a matter of law because she cannot
establish any of these actions constitutes an adverse employment action. The Court finds
questions of material fact remain such that summary judgment is inappropriate on this
claim.
First, Plaintiff has presented specific admissible evidence that she was not allowed
to use her “flex” day similarly to other employees to replace one of her assigned ‘in-office’
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days. Plaintiff, and most other FMS employees, worked four ten-hour days with one “flex”
day. (Doc. 51 ¶ 57). Under the anticipated hybrid schedule, each employee would have two
assigned ‘in-office’ days and two remote days. Four other employees were allowed to have
their “flex” day coincide with one of their assigned in-person shifts, thereby avoiding
having to go to the office on that day. (Doc. 56 at 12-13). When Plaintiff requested
permission to do the same, she was rejected. Plaintiff also alleges she was told that if she
pushed the issue, Ward would take the privilege away from the other employees, too. (Doc.
51-1 ¶¶ 59-61). Defendant argues that those employees’ “flex” day was already established,
and they were simply allowed to “keep” the same “flex” day when the hybrid schedule was
implemented; Plaintiff, Defendant argues, was simply not allowed to change her “flex”
day to align with her in-person shift. (Doc. 56 at 12-13). Neither party has detailed the facts
establishing the parameters of what a “flex” day entails or how it may generally be used,
but the use of a “flex” day appears to materially impact the conditions of Plaintiff’s work—
where she works and when—and, likewise, the denial of the ability to use her flex day in a
similar manner to other, non-disabled employees. Thus the evidence on summary judgment
is sufficient to find the Defendant’s actions may constitute an adverse employment action.
Plaintiff further alleges she was denied a potential lateral transfer opportunity to
Lisa Pounds’ department as a result of her disability and accommodation request.
Defendant argues Plaintiff cannot claim to have had a transfer denied because she never
formally applied for the position. However, Ms. Pounds’ agreement to meet and discuss
the transfer and communication to HR, (Doc. 51-26 at 1), and the subsequent offer of
another position, (Docs. 33 ¶ 81; 51-1 ¶ 70), suggest reaching out to the department
manager internally may have been a legitimate method of seeking a transfer. Thus a formal
application was not always a prerequisite. Moreover, when Plaintiff expressed her desire
to transfer to an open position, Ms. Pounds indicated they could discuss the matter when
she returned to work in two weeks. (Doc. 51-25 at 1-2). According to facts considered on
summary judgment, not only was Plaintiff not told she would need to apply formally before
she could be considered for interview, but there was no indication that Plaintiff would lose
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the opportunity to potentially transfer by waiting for the promised meeting. Plaintiff’s
evidence, while not conclusive as a matter of law, is sufficient to create a question of fact
of whether Defendant’s explanation that Plaintiff could not have been granted the transfer
because she never applied was pretextual. Because material questions of fact remain,
summary judgment will be denied on this claim.
b. Failure to Accommodate
The ADA treats the failure to provide a reasonable accommodation as an act of
discrimination if the employee is a “qualified individual,” the employer receives adequate
notice, and a reasonable accommodation is available that would not place an undue
hardship on the operation of the employer’s business. Snapp v. United Transportation
Union, 889 F.3d 1088, 1095 (9th Cir. 2018). A claim for failure to accommodate “results
from denying an available and reasonable accommodation.” Id. Thus, to survive summary
judgment, Plaintiff must show Defendant “failed to provide a requested reasonable
accommodation, failed to engage in an interactive process where a reasonable
accommodation would have been possible, or terminated [Plaintiff] because of her
disability.” Cooper v. Dignity Health, 438 F. Supp. 3d 1002, 1008 (D. Ariz. 2020).
Plaintiff asserts Defendant has failed to engage in the interactive process in good
faith and has refused to provide her with a reasonable accommodation. Defendant contends
this claim fails as a matter of law because Plaintiff “requested an accommodation to work
remotely fulltime and the State has continually allowed [her] to work remotely fulltime.”
(Doc. 19 at 9).
Defendant is correct that there can be no failure to accommodate claim where a
reasonable accommodation has been provided. But whether the accommodation offered
was and is reasonable remains a disputed question in this matter. Indeed, there is admissible
evidence in the record to allow reasonable minds to conclude that Defendant did not “[go]
above and beyond to accommodate and support [Plaintiff]” or “[seek] to accommodate
[her] at every opportunity,” but rather strongly avoided accommodating her.2
2 For example, the CRO memo detailing the interactive process following Plaintiff’s initial
request shows that when discussing possible accommodations, CFO Kristine Ward made
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Although Defendant asserts it has granted Plaintiff the very accommodation she
requested, Plaintiff has shown the permission she has received to work remotely has always
been framed as “on a temporary basis” and thus can be revoked at any time based solely
upon Defendant’s discretion. The memorandum of decision granting Plaintiff’s current
accommodation grants full-time remote work, but inconsistently states “the telework
accommodation has been provided on a temporary basis[,] but this memorandum will
confirm that you have been approved [for] full-time telework on an ongoing basis.” (Doc.
51-17 at 1). Plaintiff has presented undisputed substantial medical documentation
characterizing her impairment as permanent and has alleged the process of seeking and
receiving piecemeal extensions of permission to work remotely has been stressful and
burdensome. There remain material questions of fact whether the most recent
accommodation is substantially different from the permanent remote work Plaintiff
requested and whether it is a reasonable accommodation of Plaintiff’s disability.
c. Retaliation
“To succeed in a retaliation claim, the plaintiff must demonstrate (1) that she was
engaging in protected activity, (2) that she suffered an adverse employment decision, and
(3) that there was a causal link between her activity and the employment decision.”
Hashimoto v. Dalton, 118 F.3d 671, 679 (9th Cir. 1997). The causal link “may be inferred
from proximity in time between the protected action and the allegedly retaliatory
employment decision” if the Plaintiff “make[s] some showing sufficient for a reasonable
trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected
activity.” Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir.
2003), opinion amended on denial of reh’g, 2003 WL 21027351 (9th Cir. 2003). “In the
retaliation context, an adverse employment action is an action that is reasonably likely to
deter employees from engaging in protected activity.” Wood v. Univ. Physicians
Healthcare, 2014 WL 3721207, at *11 (D. Ariz. 2014), aff’d, 657 F. App’x 643 (9th Cir.
suggestions such as “pre-work meditation practice” and “arrive in advance of the day…to
decompress,” refused to consider remote work despite being unable to articulate specific
functions that required in-person work, and was generally resistant to any type of
substantial accommodation. (See Doc. 49-2 at 20-29.)
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2016).
Defendant appears to argue, without authority, that no action can be considered an
adverse employment action where a Plaintiff continues to engage in protected activity.
Defendant claims to be entitled to summary judgment on Plaintiff’s retaliation claim
because “it is unclear what would or could deter Cruz from engaging in protected activity”
and “nothing that [Defendant] has done deterred it . . . . Practically speaking, the Court
should determine that Cruz has not been deterred and therefore has not experienced actions
that would deter her from pursuing protected activity against her employer.” (Doc. 49 at
13-14). This peculiar argument would essentially render recovery for retaliation claims
impossible, as anyone seeking relief has clearly not been deterred from doing so. The
standard does not require actual deterrence. See Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (stating “in our view, a plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination” and “we refer to reactions of a reasonable employee because we
believe that the provision’s standard for judging harm must be objective. An objective
standard is judicially administrable.”)
Plaintiff argues the denial of her request to use her “flex” day to cover one of her
in-office days was a retaliatory action. Although the parties do not provide the exact details
of a “flex” day, the denial of the ability to use it in a way similar to other employees may
be reasonably likely to deter an employee from taking protected action. Whether this was
the case is a disputed question of material fact.
A denial of a lateral transfer may be reasonably likely to deter an employee from
taking protected actions. In this case, Plaintiff reached out to Pounds, who agreed to meet
and discuss the possibility of transfer. Pounds met with Plaintiff and emailed Wendy
Brazier regarding the “possibility/logistics” of such a transfer. (Docs. 49 at 7; 51-26 at 1).
After Brazier notified Pounds of Plaintiff’s ADA accommodation, (Doc. 51-26 at 1),
Plaintiff received no further communication until she received an email announcing the
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positions had been filled. Subsequently, Pounds offered Cruz a different and substantially
inferior position. (Doc. 56 at 5). The timeline of events allows a reasonable inference that
Plaintiff’s accommodation was the reason Plaintiff was never given the chance to interview
for the desired position and was offered a lower paying position.
In addition to the alleged adverse actions as discussed, Plaintiff describes a change
in Ms. Ward’s behavior towards her after requesting an accommodation. She alleges Ward
became hostile, made negative comments about Plaintiff publicly, cancelled one-on-one
meetings, and uninvited Plaintiff from meetings regarding work that was assigned to
Plaintiff. The nature and consequences of these meetings and statements are not fully
expounded by the parties, thereby creating a question of fact whether these actions are
reasonably likely to deter an employee from requesting an accommodation. See Burlington
N., 548 U.S. at 69 (“A supervisor’s refusal to invite an employee to lunch is normally
trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a
weekly training lunch that contributes significantly to the employee’s professional
advancement might well deter a reasonable employee from complaining about
discrimination.”)
Accordingly,
IT IS ORDERED Defendant’s Motion for Summary Judgment (Doc. 49) is
DENIED.
IT IS FURTHER ORDERED Plaintiff’s Motion for Summary Judgment or in the
alternative, Motion for Partial Summary Judgment (Doc. 50) is DENIED.
Dated this 16th day of March, 2026.
Honorable Roslyn O. Silver
Senior United States District Judge
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