Ruiz v. Kendall

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
David Ruiz,
Plaintiff,
v.
Frank Kendall,
Defendant.
No. CV-23-00549-TUC-AMM
ORDER
Pending before the Court is Defendant Troy Meink’s Motion for Summary
Judgment.1 (Doc. 50.) The motion is fully briefed. (Docs. 50–51, 56–58, 60.) Also pending
is Plaintiff David Ruiz’s Motion for Partial Summary Judgment. (Doc. 52.) The motion is
fully briefed. (Docs. 52–55, 59.) The Court held oral argument on the cross motions for
summary judgment on March 4, 2026. (Doc. 64.)
For the following reasons, the Court will grant Defendant’s Motion for Summary
Judgment and deny Plaintiff’s Motion for Partial Summary Judgment.
I. Procedural History
Plaintiff initiated this action on December 6, 2023. (Doc. 1.) Plaintiff subsequently
filed an Amended Complaint on May 16, 2024. (Doc. 15 at 11–13.) In Count One, Plaintiff
alleges that Defendant (the “Air Force”) discriminated against Plaintiff because of his
1 Troy Meink succeeded Frank Kendall as the Secretary of the United States Department
of the Air Force. (Doc. 50 at 1.) He is automatically substituted as Defendant in this action
pursuant to Federal Rule of Civil Procedure 25(d). The Court will direct the Clerk of Court
to amend the caption to reflect this substitution.
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disability, and in violation of the Rehabilitation Act, “when it subjected Plaintiff to adverse
employment actions including, but not limited to, generally worsening the terms and
conditions of his employment, denying his request to convert annual and sick leave to
weather and safety leave, and/or by treating him less favorably than similarly situated
employees outside his protected class.” (Id. at 11–12.) In Count Two, Plaintiff alleges that
Defendant violated the Rehabilitation Act by failing to provide him with a reasonable
accommodation. (Id. at 12.)
On July 31, 2025, Defendant filed a Motion for Summary Judgment as to both
counts of Plaintiff’s Amended Complaint. (Doc. 50.) Plaintiff thereafter filed a Motion for
Partial Summary Judgment as to Count Two. (Doc. 52.)
II. Undisputed Relevant Facts
Plaintiff worked as a civilian, non-appropriated fund (“NAF”) employee at Davis
Monthan Air Force Base (“DMAFB”) in Tucson, Arizona. (Doc. 51 at 1–3; Doc. 53 at 1.)
In 2008, Daniel Baker, the Lodging Manager of an on-base housing facility called “The
Inn,” promoted Plaintiff to the position of Assistant Lodging Manager and served as
Plaintiff’s supervisor. (Doc. 51 at 1–3; Doc. 53 at 5.) Plaintiff was the Assistant Lodging
Manager until September 30, 2022. (Doc. 53 at 5.)
The job description provides that, among other duties, the Assistant Lodging
Manager is responsible for “set[ting] long-range plans, goals, and objectives[,]”
“[d]evelop[ing] policies and procedures, which result in competent and effective operation
and utilization of all lodging assets[,]” and “[p]repar[ing] budget estimates and controls
of disbursement of funds.” (Id. at 6.) It further explains that Assistant Lodging Manager
“[p]erforms or directs periodic or scheduled surveys, audits, and inspections to determine
adequacy of lodging conditions, compliance with requirements, and to evaluate
effectiveness of financial management/controls.” (Id.)
Nonetheless, according to Plaintiff, he “strictly did operations.” (Doc. 51-14 at 8–
10.) He described his job as follows:
Responsible for all civil engineers, work order
requests, tracking of the work order requests, follow-up of the
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work order request, responsible for contractors coming on to
the base over to the site to do work. Supervised those
contractors. I was their escort in and out of the base. Managed
a maintenance team. Issued work order tasks for any
roommate instances that came up either reported through
guests, through housekeeping, through inspections. Followed
up and assured that the work tasks were completed. Worked
with logistics to ensure that we had all the parts and the
supplies that we needed to get these tasks completed.
I was responsible for our fleet, our vehicle fleet, which
included some golf carts. I was responsible for a scissor lift
for our warehouse, keeping it maintained, keeping the
preventative maintenance up to date, replacing batteries as
needed.
I was responsible for the two electric pallet jacks that
we had up on site. Same thing. Responsible for the
preventative maintenance, changing out the batteries, what
have you.
I was the safety rep. My responsibility was to make
sure that all our personnel was properly trained in safety.
I was the [point of contact] when wing safety would
come down and do their annual inspections.
(Id. at 8–9.) Plaintiff also averred that he did physical inspections of the premises “[d]aily”
and that his duties remained “pretty much the same.” (Id. at 9–11.)
a. Plaintiff’s Diagnosis and Pre-Pandemic Leave
In 2017, Plaintiff informed Baker that he was diagnosed with chronic ulcerative
colitis (“UC”). (Doc. 51 at 3; Doc. 53 at 4.) Plaintiff received treatment for his condition,
including infusions that each lasted approximately 5 hours. (Doc. 51-14 at 24.) From 2017
to 2019, Plaintiff requested leave for the full workday on days when he received an
infusion, and he requested additional leave on days “when [he] wasn’t feeling good” due
to his UC. (Id. at 25.) Baker approved the requests. (Id.)
On March 14, 2019, Plaintiff presented a doctor’s note advising that he needed to
“leave early from work at 2:30pm as needed due to medical issues from now until
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12/31/19.” (Doc. 51 at 3.) Based on this doctor’s note, from March 15, 2019 to January 6,
2020, Plaintiff submitted leave requests almost daily that used Accrued Annual Leave
(“AL”) and Accrued Sick Leave (“SL”) to leave work early or, sometimes, to be absent
from work the entire day. (Doc. 51-1 at 41–55; Docs. 51-2–51-5; Doc. 51-6 at 1–19.) Baker
continued to approve Plaintiff’s leave requests. (Doc. 51-1 at 41–55; Docs. 51-2–51-5;
Doc. 51-6 at 1–19.)
On January 6, 2020, Plaintiff presented another doctor’s note advising that he
needed “to work from 7:30am–2:30pm Monday through Friday due to medical conditions.”
(Doc. 51 at 3–4.) Consequently, from January 7, 2020 to March 20, 2020, Plaintiff
submitted—and Baker approved—daily leave requests that allowed Plaintiff to leave at
approximately 2:30 p.m. or earlier. (Doc. 51-6 at 24–26; Doc. 51-7; Doc. 51-8 at 1–16.)
Plaintiff’s leave requests during this period used AL, SL, or a combination of both types
of leave in a day. (Doc. 51-6 at 24–26; Doc. 51-7; Doc. 51-8 at 1–16.)
b. Air Force Leave Guidelines During the Pandemic
On March 13, 2020, the Air Force issued NAF-HR Directive 20-010 “Telework and
Coronavirus Fact Sheet for [Air Force] NAF Employees.” (Doc. 51-8 at 18–24.) The
directive stated, in relevant part, that Weather and Safety Leave (“WSL”) “may [be]
authorize[d] . . . when an asymptomatic employee . . . is subject to movement restrictions
(quarantine or isolation) under the direction of public health authorities due to a significant
risk of exposure to a quarantinable communicable disease, such as 2019-nCoV.”2 (Id. at
20.) It further explained:
Use of [WSL] would supersede the use of [SL] as would have
otherwise been allowed in these circumstances under OPM’s
[SL] regulations at 5 C.F.R. § 630.401(a)(5).3 Use of [WSL]
would be subject to the normal conditions—for example,
[WSL] may be granted only if an employee is not able to
2 WSL is discretionary paid leave that may be granted if an employee “is prevented from
safely traveling to or performing work at an approved location . . . .” 5 U.S.C. § 6329c(b).
3 5 C.F.R. § 630.401(a)(5) grants SL if an employee “[w]ould, as determined by the health
authorities having jurisdiction or by a health care provider, jeopardize the health of others
by his or her presence on the job because of exposure to a communicable disease . . . .” 5
C.F.R. § 630.401(a)(5).
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safely perform work at an approved location. Thus, an
employee who is not a telework program participant would
be granted [WSL] for quarantine periods based on potential
exposure.
(Id.)
Thereafter, on March 17, 2020, the Air Force issued NAF-HR Directive 20-012
“Updated Guidance on Telework Flexibilities” stating:
The guidance encourages agencies to maximize telework
flexibilities to eligible workers within the populations that the
CDC has identified as being at higher risk for COVID-
19 . . . .
Departments and agencies are further encouraged to
approve leave for safety reasons to employees who are at
higher risk as identified by the CDC and not telework eligible
. . . . Agencies may grant employees safety leave under 5
U.S.C. § 6329c(b) at the agencies [sic] discretion.
(Id. at 26–27.)
On March 20, 2020, the U.S. Department of Defense (“DOD”) issued a
memorandum that stated, in relevant part, that WSL “is not an entitlement” and that
“approval authority is the commander or head of activity unless further delegated.” (Doc.
51 at 5.) There is no dispute that Baker was the head of activity for lodging operations at
DMAFB, which never closed during the pandemic. (Id.; Doc. 58 at 4.)
On March 30, 2020, the DOD issued another memorandum with a matrix that
instructed, in relevant part, that if an employee of an open worksite was directed by a
medical professional to stay home, the “duty status options” were telework or WSL. (Doc.
53-1 at 86.) The memorandum also stated, however, that “[e]mployees may telework if
they occupy a telework eligible positions and have a telework agreement” and that “[WSL]
is not an entitlement.” (Id.)
c. Plaintiff’s Pandemic Leave
1. March 23, 2020 to April 8, 2020
Upon the start of the pandemic, Plaintiff submitted leave requests for the week of
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March 23, 2020 to March 27, 2020 using a combination of AL and SL. (Doc. 51-8 at 51–
55; Doc. 51-9 at 1–2.) Baker approved the requests. (Doc. 51-8 at 51–55; Doc. 51-9 at 1–
2.) At this time, Plaintiff also began receiving some WSL. (Doc. 51-1 at 25.)
For the week of March 30, 2020 to April 3, 2020, Plaintiff submitted—and Baker
approved—leave requests that again used a combination of AL, SL, and WSL. (Doc. 51-9
at 4–7.) Likewise, from April 6, 2020 to April 8, 2020, Plaintiff submitted—and Baker
approved—leave requests using a combination of AL, SL, and WSL. (Id. at 9–11.)
2. April 9, 2020 to September 5, 2020
On April 9, 2020, Plaintiff presented a doctor’s note dated March 30, 2020 that read:
“Patient has a compromised immune system due to his health issues. It may be prudent for
him to take some time off work to decrease his risk of COVID-19 exposure.” (Id. at 13.)
As a result of this note, Plaintiff did not return to work regularly until May 3, 2021. (Doc.
51 at 6, 11.)
Baker did not discuss teleworking with Plaintiff. (Doc. 51-12 at 17.) On some
unspecified date, Baker met with “[t]he commander; deputy commander; human resources;
[and] civilian personnel director, [his] boss, Lieutenant Kaiser at the time” to discuss
Baker’s workload, which included some of Plaintiff’s duties while Plaintiff was on leave.
(Id.) The conversation then became about Plaintiff, and Baker was asked “why [Plaintiff]
wasn’t teleworking.” (Id.) Baker “explained that nobody in lodging [was] teleworking, and
as far as [he] was concerned, no one could telework to do the job that [they were] supposed
to do.” (Id. at 17–18.)
Plaintiff did not telework and took an extended absence. (Doc. 51 at 6, 11.) Plaintiff
submitted—and Baker approved—16 leave requests in the five months between when he
submitted his doctor’s note on April 9, 2020 and September 5, 2020. (Doc. 51-9 at 15–30.)
During this time, Plaintiff requested 1 hour of AL, 2 hours of SL, and 5 hours of WSL per
day.4 (Id.) Plaintiff’s signature was on each of these leave requests. (Id.)
///
4 Except that Plaintiff’s leave form for May 20, 2020 used 8 hours of SL. (Doc. 51-9 at 20.)
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3. September 7, 2020 to March 19, 2021
Plaintiff inexplicably stopped submitting leave forms on Monday, September 7,
2020. (Doc. 51 at 8.) Rather than designate Plaintiff as Absent Without Leave (“AWOL”),
Baker began submitting leave forms on Plaintiff’s behalf that mirrored the daily use of 1
hour of AL, 2 hours of SL, and 5 hours of WSL. (Doc. 51-10 at 17–31.) In place of
Plaintiff’s signature, Baker wrote, “UNABLE TO SIGN DUE TO COVID 19
RESTRICTION.” (Id.) Baker executed 14 leave forms for Plaintiff from September 6, 2020
to March 19, 2021. (Id.)
Although Plaintiff did not personally submit any leave requests for this period, he
did submit several doctor’s notes to the Air Force. (Id. at 33, 35, 37.) The first doctor’s
note dated October 27, 2020 advised to extend Plaintiff’s leave until after his follow up
appointment on November 23, 2020. (Id. at 33.) On November 23, 2020, the Air Force
received another doctor’s note asking to extend Plaintiff’s leave again until his appointment
on January 11, 2021. (Id. at 35.) Finally, on January 4, 2021, the Air Force received a
doctor’s note “strongly recommending that [Plaintiff] stays off work until 2/1/2021 due to
worsening autoimmune disease and also the record number of COVID-19 cases.” (Id. at
37.) It further stated that Plaintiff “is at very high risk of contracting and dying from
COVID-19 if he is infected.” (Id.)
Plaintiff also communicated directly with DMAFB officials during this period.
(Doc. 51-1 at 16–17.) On December 9, 2020, Plaintiff emailed Baker; Ann Ulibarri, Human
Resources Officer; Gokcan Hart, Civil Personnel Officer; and Lisa Chamberlain, Chief of
Finance. (Id.; Doc. 51 at 9.) Plaintiff detailed his medical condition prior to the pandemic,
saying that “Mr. Baker has been supportive and I used sick and annual leave when I request
to be excused from work.” 5 (Doc. 51-1 at 17.) Plaintiff then explained that “[his] doctor
said avoid work and protect [him]self” when the pandemic began. (Id.) Plaintiff then wrote,
in relevant part:
5 It is not clear why Baker did not inquire whether Plaintiff intended to continue using leave
if Baker was in touch with Plaintiff in December 2020 via this email. It also is not clear
what happened as a result of this email.
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I had a talk with Mr. Baker about this and again he was
supportive and with a doctor’s note and the original guidelines
that came out I was covered. Of course this was all new to all
of us so there was some bumps early on on what was allowed
and what wasn’t. Once these bumps got ironed out I was
okayed for what we now call Weather and Safety leave.
The only thing that was talked about with Mr. Baker and
myself was that I would be required to continue to use Sick and
Annual leave because that’s what I was doing prior to this
horrible Covid . . . . I had no issues because I had a lot of both
and didn’t in my wildest dreams think we still be dealing with
this.
This was a concern because now I had a question about
my leave balance. It then when it came to the fore front that I
shouldn’t have been getting charged any leave during this time
unless it was for medical appointments or any scheduled
annual leave . . . .
The target date to return is January 11, 2021. I
understand that Weather and Safety leave expires on December
31, 2020. If I can get a balance of my sick and annual leave I
will request the additional time.
(Id. at 17–18.)
In her deposition, Ulibarri stated that, after this email, she “[d]iscussed with Mr.
Baker if he was looking into reasonable accommodations to bring [Plaintiff] back to work
and keep him safe.” (Doc. 53-2 at 54.) Ulibarri said she “[j]ust [gave] him the options on
what he could do to have [Plaintiff] come to work and still work basically.” (Id.) The
options were “[t]elework, have him work in an office, enclosed office by himself while he
was at work, minimize his contact with people, wear a mask . . . .” (Id. at 55.) In the
discussion, Baker responded that “[h]aving him work back in the building was
sufficient . . . because [Plaintiff] needed to be present . . . .” (Id.) Ulibarri clarified that she
only suggested those as options to Baker and she did not know or recall Baker’s response.
(Id.) Ulibarri stated that, if any options were to be presented to Plaintiff, it would have been
Baker’s role to do so, but she did not know if any such conversation happened between
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Baker and Plaintiff. (Id. at 56.)
On December 18, 2020, Ulibarri sent an email to several supervisors, including
Baker, stating that the Air Force was ending WSL on December 31, 2020. (Doc. 53-3 at
65–66.) Nonetheless, on January 4, 2021, Baker told Ulibarri that he received a doctor’s
note extending Plaintiff’s leave until February 1, 2021. (Id. at 65.) When Baker asked
whether he was permitted to grant Plaintiff additional WSL after December 31, 2020,
Ulibarri confirmed that Plaintiff was still eligible for WSL based on his most recent
doctor’s note. (Id. at 64–65.) Ulibarri also explained to Baker:
In the meantime, you should consider discussing with
[Plaintiff] whether he needs any flexibilities or reasonable
accommodation to return to the workplace at the expiration
of his Drs note, i.e. telework, social distancing by minimizing
his contact with people, limit his in-person contact with
people, provide masks, face shield, hand sanitizer, gloves,
Lysol, etc. Please let me know if you would like to explore
the reasonable accommodations process.
(Id. at 64.) Baker forwarded the email to Plaintiff on January 7, 2021 informing Plaintiff
that he was “eligible to continue using WSL based upon [his] Doctor’s excuse.” (Id. at 63.)
On January 26, 2021, Baker again wrote Ulibarri, stating:
I have been very supportive and patient with the
medical situation we find ourselves in with [Plaintiff]. It is
very unfortunate that [Plaintiff’s] medical condition has not
improved with several different treatment plans and the
current Pandemic. He has not been able to work since March
2020 due to his compromised immune
system/illness/COVID 19. Also, [he has been] unable to
completely perform his daily duties since April 2018 working
only partial days (33%) due [to] his illness. I am requesting a
fit for duty examination to determine his long term ability to
perform his assigned duties here at lodging. Lodging has
always been open (24/7) and has never reduced/limited hours
even during the pandemic, there’s no ability to perform
teleworking and we have major concerns with providing safe
reasonable accommodations in the work place.
(Doc. 53-2 at 33.)
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On January 27, 2021, Baker directed Plaintiff to undergo a medical examination,
stating in a memorandum that Baker was “concerned about [Plaintiff’s] current medical
condition, which has prevented [him] from performing the full range of the duties of [his]
permanently assigned position as Assistant Lodging Manager.” (Doc. 51-10 at 43.)
On February 2, 2021, Plaintiff’s doctor conducted the examination and concluded
that Plaintiff was “medical qualified – if restrictions [were] accommodated” including
“allow[ing] [Plaintiff] to work from home to avoid exposure to Covid.” (Id. at 46.)
However, on March 1, 2021, Plaintiff’s doctor faxed a note recommending that Plaintiff
“wait to return to work in person until he receives the COVID-19 vaccine.” (Doc. 53-1 at
34.) The note further stated that Plaintiff would “need the two-shot vaccine series[.]” (Id.)
There is no indication that Plaintiff received the vaccine.
d. Plaintiff Ordered to Return to Work
On March 19, 2021, Baker emailed Plaintiff notifying him that he was “required to
report back to work on Monday, 22 March 2021 at 0800 hrs.” (Id. at 49.) To reduce
Plaintiff’s exposure to COVID-19, Baker outlined certain accommodations including a
private office, face mask, face shield, and disinfecting cleaners.6 (Id.) Baker notified
Plaintiff that if he did not report as required, he would be marked AWOL. (Id.)
Plaintiff did not return to work on March 22, 2021. (Id. at 51.) Instead, he submitted
a leave form requesting 16 hours of SL for March 22, 2021 and March 23, 2021 because
his father was in the hospital. (Id.) Baker approved the request. (Id.)
Plaintiff returned to work on March 24, 2021 and worked a full day in person. (Doc.
51 at 10.) The next day, Plaintiff submitted a request to use AL to leave at 2:00 p.m. because
he was not feeling well after a treatment for his UC. (Doc. 51-10 at 52.) Plaintiff indicated
on the form that the requested leave was “NOT COVID related.” (Id.) Baker approved the
request. (Id.) The following day, on March 26, 2021, Plaintiff submitted—and Baker
approved—a request to use 8 hours of SL because his father was again in the hospital. (Id.
6 As addressed infra, Defendant asserts that the essential functions of Plaintiff’s position
were in-person and could not be accomplished via telework. (Doc. 50 at 12–13; Doc. 54 at
10; Doc. 60 at 2.)
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at 53.)
Plaintiff then submitted a leave form requesting 40 hours of SL for the week of
March 29, 2021 to April 2, 2021. (Id. at 54.) The remarks stated that Plaintiff had a
“[f]ollow up with GI Specialist.” (Id.) Baker approved the request. (Id.)
On March 29, 2021, the Air Force received a doctor’s note stating Plaintiff was not
permitted to return to work until May 3, 2021. (Id. at 56.) Baker approved SL for Plaintiff
through April 30, 2021. (Doc. 51 at 11.)
Plaintiff returned to work on May 3, 2021. (Id.)
e. Plaintiff Requests Retroactive Leave Conversion
At some point after his return to work, Plaintiff requested that his used AL and SL
from September 6, 2020 to May 1, 2021 be retroactively converted to WSL.7 (See id. at 12;
Doc. 51-20 at 5; Doc. 51-21 at 5; Doc. 57 at 3–4; Doc. 57-1 at 73–74, 80, 171.) Baker’s
supervisors informed him that “Air Force San Antonio and legal” were “putting a package
together” and “trying to get [Plaintiff’s] leave back.” (Doc. 57-1 at 171.) Baker relayed this
information to Plaintiff. (Id.)
On October 12, 2021, NAF Financial Analyst (“NAFFA”) Alicia Solorio issued a
memorandum regarding a “Special Review of Lodging Leave Records.” (Doc. 51-20 at 5.)
7 It is unclear when and how Plaintiff first made this request. It is also unclear why Plaintiff
selected these specific dates. Plaintiff argues that he is entitled to convert his AL and SL
because Defendant failed to engage in the interactive process as soon as it learned that
Plaintiff could not work a full 8-hour day because of his disability. (Doc. 56 at 11.)
However, Plaintiff only seeks conversion of leave used from September 6, 2020 to May 1,
2021. Puzzlingly, this timeframe does not start on January 6, 2020 when Plaintiff first
submitted his doctor’s note informing Defendant that he could not work a full day because
of his disability. Nor does he seek conversion of the AL and SL that he personally requested
from April 9, 2020 to September 5, 2020 after he submitted a third doctor’s note informing
Defendant of his disability-related need to take time off work, which, by Plaintiff’s
argument, would also trigger the duty to engage in the interactive process. The Court,
therefore, can only assume that Plaintiff targets the period between September 6, 2020 and
May 1, 2021 because September 6, 2020 is when Baker began submitting leave requests
on Plaintiff’s behalf. However, to the extent that Plaintiff seeks relief only for the leave
that he did not personally request, it remains unclear why he then includes leave used after
March 19, 2021 when Baker stopped submitting Plaintiff’s leave forms and Plaintiff
resumed submitting them himself.
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She stated in part that “[a]t the request of the FSS Resource Management Flight Chief,
from 22 Sep – 12 Oct 2021, the NAFFA conducted a special review of Lodging leave
records from 1 Sep 20 through 8 May 21. The NAFFA conducted a review of one employee
(Employee A) specifically and five other employees (randomly selected).”8 (Id.) Solorio
wrote that her “understanding is Employee A has requested converting annual and sick
leave from 6 Sep 20 – 3 May 21 to WSL. This is approximately 615+ hours . . . valued at
approximately $21K.” (Id.)
Although Solorio noted that Plaintiff did not sign most of the leave forms from
September 6, 2020 to May 1, 2021, she nonetheless recommended that Plaintiff’s “leave
hours not be converted to WSL.” (Id.) Solorio reasoned that (1) Plaintiff never requested 8
hours of WSL; (2) Plaintiff used an average of 3 hours of AL and SL per day for the 6
months before the pandemic; (3) Plaintiff never provided a doctor’s note that stated he
could return to a full workday; (4) at the start of the pandemic around “13 Apr 20, [Plaintiff]
had no regular hours and had a clear history of 1 hour [AL], 2 hours [SL] [,] and 5 hours
WSL”; and (5) “[i]f [Plaintiff] is claiming he did not request leave between 6 Sep 20 – 1
May 21 and this leave was approved without his consent, then he should be considered
AWOL.” (Id. at 5–6.)
Around November 2021, Plaintiff and Baker met and discussed Plaintiff’s leave
during the pandemic. (Doc. 51 at 12.) In his deposition, Plaintiff averred that Baker told
him, “Yeah, I think there was a mistake. Yeah, don’t worry about it. We’re going to take
care of it. We’re going to restore it.” (Doc. 51-16 at 5.) However, according to Baker’s
deposition, he “didn’t make a mistake” and instead “did what [he] understood the guidance
provided to [him], coordinated through payroll, coordinated through HR, that [he] was
doing the right thing.” (Doc. 51-13 at 16.)
After his meeting with Plaintiff, Baker sought guidance from his superior, Lt. Col.
Terrell Tillery. (Doc. 51 at 12; Doc. 51-1 at 10.) It is not clear what Baker specifically
asked Lt. Col. Tillery or what Lt. Col. Tillery did with that information. (Doc. 51-1 at 10;
8 Plaintiff avows without objection that he is Employee A. (Doc. 57 at 4.)
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Doc. 58 at 9.)
On March 16, 2022, NAF Human Resources Officer Khalilah Huddleston wrote a
memorandum titled “Special Audit – David Ruiz.”9 (Doc. 57-1 at 80.) Huddleston
recommended crediting back to Plaintiff 127 hours of AL and 406 hours of SL and
retroactively converting those 533 hours to WSL. (Id.) These hours account for the AL and
SL that Baker requested on Plaintiff’s behalf in leave forms covering the period from
September 6, 2020 to March 19, 2021. (Id.)
Huddleston stated that her recommendation was “based on the fact[] that although
Mr. Baker knew the process regarding the receipt and approval of the [leave forms] [,] he
did not follow them.” (Id.) Specifically, Baker submitted leave forms without Plaintiff’s
signature. (Id.) Huddleston further commented that the March 30, 2020 Air Force
guidelines for COVID-19 stated, “if an employee is directed by a medical professional . . .
to stay home[,] and the employee i[s] telework ineligible[,] then WSL applies.” (Id.)
Huddleston explained that Baker said telework was not available for lodging operations.
(Id.) Finally, Huddleston opined that Plaintiff’s position as Assistant Lodging Manager
“does contain a majority of duties that are primarily administrative in nature which would
have enabled him to telework.” (Id. at 81.)
Ultimately, Huddleston found that Plaintiff should have been granted 533 hours of
WSL because he was instructed to stay home by a medical professional and, per Baker’s
statement, lodging did not offer telework. (Id.)
On July 22, 2022, Wilma Hall, Operations Branch Chief for the Air Force Services
Center (“AFSVC”), told Huddleston that she disagreed with Huddleston’s
recommendation and agreed instead with Solorio’s recommendation to deny Plaintiff’s
conversion request. (Doc. 51-10 at 61.)
Although Baker obtained recommendations, it was ultimately his decision as the
first line supervisor whether to grant Plaintiff’s request for leave conversion. (Id. at 59–60;
Doc. 51 at 13.) On August 2, 2022, Huddleston instructed Baker to communicate his
9 It is not clear what triggered Huddleston to conduct her review.
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official decision to deny Plaintiff’s conversion request in writing. (Doc. 51-10 at 58.)
On August 5, 2022, Baker wrote a memorandum to Plaintiff that stated in full:
“Request for Annual and Sick leave to be restored and credited to Weather and Safety
Leave is disapproved. Request was reviewed/coordinated with Davis Monthan Human
Resources, [355th Force Support Squadron]/Leadership, AF Lodging and
AFSVC/VBLO.” (Id. at 63.) Plaintiff acknowledged receipt of the memorandum decision
via his signature on August 5, 2022. (Id.)
f. Plaintiff Appeals Through the Administrative Grievance Process
DMAFB has a three-step administrative grievance process whereby employees can
request review of supervisor decisions. (Doc. 51-21 at 2.) Step One requires a written
grievance. (Id.) If the employee is not satisfied with the reviewing supervisor’s decision at
Step One, the employee may submit a written grievance “to the next, higher level
supervisor (at Step Two).” (Id.) The employee may repeat this process once more at Step
Three. (Id.)
On August 22, 2022, Plaintiff filed a grievance at Step One regarding “the
disapproval of returning 127 hours of annual and 406 hours of sick leave from the period
of April 2020 thru May of 2021 for a total of 533 hours with no explanation issued on
Friday August 5, 2022.” (Id. at 5.) Plaintiff claimed that “NAF HR had made a
recommendation that [his] leave be restored based on there wasn’t any SF71 leave forms
with [his] signature authorizing deduction of annual and sick leave for the periods
mentioned.” (Id.)
Baker’s supervisor, Capt. Michael Asuncion, reviewed and denied Plaintiff’s Step
One grievance. (Id. at 2–3.) In so doing, Capt. Asuncion considered Plaintiff’s use of AL
and SL before the pandemic to cover 3 hours of the workday, and he considered Solorio’s
recommendation to deny leave conversion. (Id. at 3.)
On September 14, 2022, Plaintiff submitted a Step Two grievance. (Doc. 51-23 at
5.) Lt. Col. Tillery denied the request at Step Two. (Id. at 2–3.) In so doing, Lt. Col. Tillery
also considered Plaintiff’s use of AL and SL before the pandemic as well as Solorio’s
recommendation. (Id. at 3.) However, Lt. Col. Tillery offered to return the AL and SL to
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Plaintiff “and substitute Absence Without Leave (‘AWOL’) in its place, since Plaintiff was
contending that he had no agreement with Mr. Baker regarding his leave use while he was
absent from work during that timeframe.” (Id.)
On November 1, 2022, Plaintiff submitted a final grievance at Step Three. (Doc. 51-
25 at 5.) On November 8, 2022, Col. Casey Bartholomew denied the request at Step Three.
(Id. at 2–3.) Col. Bartholomew considered Plaintiff’s use of AL and SL before the
pandemic and considered Solorio’s recommendation. (Id. at 3.) He also offered to return
the leave and substitute AWOL. (Id.) There is no indication that Plaintiff responded to
either offer to convert his leave to AWOL.
g. Plaintiff Complains Through the Equal Employment Opportunity
Process
On November 16, 2022, Plaintiff contacted Equal Employment Opportunity
(“EEO”) Director Ricky Collins. (Doc. 51-26 at 2, 5.) On December 15, 2022, Plaintiff
filed an Informal EEO Complaint against Baker. (Id. at 5.) The “Civilian Pre-Complaint
Intake Form” stated that Plaintiff’s “Claim Type” was “Other: Not restoring leave for
disability (c[h]ronic ulcerative colitis).” (Id. at 6.) Plaintiff marked the incident date as
November 2, 2022, although Plaintiff could not explain in his deposition why he chose
November 2, 2022. (Id.; Doc. 51 at 15.)
In his “Narrative of the Incident,” Plaintiff wrote: “Wouldn’t restore leave taken
with no authorization.” (Doc. 51-26 at 7.) Plaintiff stated that the issue was: “Whether the
complainant, Mr. David Ruiz[,] was discriminated against based on disability, Chronic
Ultracolitis [sic] (physical) when on 2 November 2022, Mr. Dan Baker, Lodging Manager,
355 FSS/FSVL, did not reinstate 127 hours of Annual Leave and 406 hours of Sick
Leave.”10 (Id. at 10.)
On January 23, 2023, Plaintiff filed a Formal EEO Complaint. (Id. at 12–13.) He
10 Plaintiff did not specify the date range the for these hours in his Informal EEO
Complaint, but these are the exact amounts of leave addressed by Huddleston that covered
the period from September 6, 2020 to March 19, 2021 when Baker submitted leave forms
on Plaintiff’s behalf. (Doc. 57-1 at 80.)
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alleged that Baker, Capt. Asuncion, Lt. Col. Tillery, and Col. Bartholomew discriminated
against him based on disability. (Id. at 12.) Plaintiff articulated the issue as follows:
Whether Complainant David Ruiz was discriminated
against based on his disability, Chronic Ulcerative Colitis
(physical) when:
1. On or about 5 August 2022, Lodging Manager Don
[sic] Baker, 355 FSS/FSVL, denied my request to
reinstate 127 hours of Annual Leave; and
2. On or about 5 August 2022, Lodging Manager Don
[sic] Baker, 355 FSS/FSVL, denied my request to
reinstate 406 hours of Sick Leave; and
3. On or about 8 November 2022, Col. Casey J.
Bartholomew denied my Step 3 Grievance seeking
reinstatement of 127 hours of Annual Leave and 406
hours of Sick Leave.
(Id.)
On February 3, 2023, EEO Director Collins issued a “Notice of Acceptance of
Formal EEO Complaint” notifying Plaintiff that the 355th Wing Equal Opportunity Office
at DMAFB would investigate his claim of:
Whether the complainant, Mr. David Ruiz[,] was
discriminated against based on disability, Chronic
Ultracolitis [sic] (physical) when on 2 November 2022, Mr.
Dan Baker, Lodging Manager, 355 FSS/FSVL, did not
reinstate 127 hours of Annual Leave and 406 hours of Sick
Leave.
(Id. at 16.)
On September 4, 2023, Plaintiff’s EEO Complaint was denied by Final Agency
Decision. (Id. at 2–3.) Plaintiff subsequently filed the present action on December 6, 2023.
(Doc. 1.)
///
///
///
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III. Standard of Review
The Court grants summary judgment if the pleadings and supporting documents,
viewed in the light most favorable to the non-moving 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(a),
(c)). An issue is genuine when a reasonable jury could resolve the disputed facts in favor
of either party. See Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250–51 (1986)). A disputed fact is
material if it “might affect the outcome of the suit under the governing law.” Anderson,
477 U.S. at 248.
The moving party bears the initial burden of establishing there is no genuine issue
of material fact. Celotex Corp., 477 U.S. at 323. Under Federal Rule of Civil Procedure 56:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support that assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents,
electronically stored information, affidavits,
or declarations, stipulations[,] . . .
admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot
produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1)(A)–(B).
The burden then shifts to the non-movant to “come forward with ‘specific facts
showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-movant “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Id. at 586–87. The non-movant’s bare assertions, standing alone, are insufficient to create
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a material issue of fact and defeat a motion for summary judgment. Anderson, 477 U.S. at
247–48. Thus, summary judgment is mandated “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at
322.
The Court’s role at the summary judgment stage is to determine whether there is a
genuine issue for trial. See Anderson, 477 U.S. at 249–50. “[T]here is no issue for trial
unless there is sufficient evidence favoring the nonmoving party for a jury to return a
verdict for that party.” Id. at 249 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 288–89 (1968)). “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Id. at 249–50 (citations omitted).
On cross motions for summary judgment, the Court “review[s] each motion . . .
separately, giving the nonmoving party for each motion the benefit of all reasonable
inferences.” Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017), cert.
denied, 138 S. Ct. 167 (2017). The Court may consider either party’s evidence in the
opposing party’s motion when deciding whether to grant either summary judgment motion.
See Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136–37 (9th Cir. 2001).
IV. Cross Motions for Summary Judgment
a. Count One: Disability Discrimination
The Court finds that there is no genuine dispute of material fact, and Defendant is
entitled to judgment as a matter of law, as to Count One. The Court applies the two-step
framework from McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) to
discrimination claims under the Rehabilitation Act. Mattioda v. Nelson, 98 F.4th 1164,
1178 (9th Cir. 2024). “Under this framework, a plaintiff must make a prima facie case
establishing that (1) he is a person with a disability; (2) otherwise qualified for
employment; and (3) suffered discrimination because of his disability.”11 Id. Upon this
11 For purposes of this motion, Defendant does not contest that Plaintiff can satisfy the first
element of a prima facie case by showing that he is disabled. (Doc. 50 at 12 n.1.)
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prima facie showing, the burden shifts to the employer to establish legitimate, non-
discriminatory reasons for the challenged adverse action. Id. (citing Coghlan v. Am.
Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005)). The burden then shifts back to the
plaintiff to demonstrate that the employer’s alleged reasons were merely a pretext for
discrimination. Id.
1. Qualified Individual
A qualified individual is “an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8); Cummings v. DeJoy, 700 F. Supp. 3d
801, 805 (D. Ariz. 2023); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237
(9th Cir. 2012). “Essential functions are the fundamental duties of the relevant position.”
Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1175 (9th Cir. 1998).
There appears to be a genuine factual dispute that Plaintiff was a qualified
individual, which turns on whether Plaintiff could have performed all the essential
functions of Assistant Lodging Manager by teleworking. The official job description
conflicts with Plaintiff’s explanation of his duties. Specifically, while the job description
outlines primarily administrative duties, Plaintiff described daily inspections, overseeing
and escorting contractors on site, and other in-person tasks. Moreover, Plaintiff proffered
Huddleston’s finding that Plaintiff could have performed the functions of Assistant
Lodging Manager remotely. It is, therefore, in dispute to what extent Assistant Lodging
Manager requires functions that could only be performed in person.
2. Causation
Nevertheless, the Court finds that summary judgment is warranted because,
assuming without deciding that Plaintiff was a qualified individual, he has not shown that
he suffered discrimination because of his disability.
The Rehabilitation Act requires strict but for causation. Chadwick v. Universidad
Interamericana de Puerto Rico Inc., No. CV-18-00377-TUC-RM, 2018 WL 4492286, at
*4 (D. Ariz. Sept. 19, 2018). Therefore, the plaintiff must show that he suffered an adverse
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action “‘solely by reason of’ [his] disability.” Id. (quoting Martin v. Cal. Dep’t of Veterans
Affairs, 560 F.3d 1042, 1049 (9th Cir. 2009)). The Court is mindful that “[w]hile a private
plaintiff must show intentional discrimination under the statutes modeled after Title VI,
[the Ninth Circuit] interpret[s] this requirement ‘somewhat more broadly’ for
Rehabilitation Act claims in light of that statute’s purpose.” Schmitt v. Kaiser Found.
Health Plan of Wash., 965 F.3d 945, 954 (9th Cir. 2020) (quoting Mark H. v. Lemahieu,
513 F.3d 922, 937 (9th Cir. 2008)).12 With the Rehabilitation Act, Congress observed that
disability discrimination is “most often the product, not of invidious animus, but rather of
thoughtlessness and indifference.” Id. at 954 n.5 (quoting Alexander v. Choate, 469 U.S.
287, 295 (1985)).
Plaintiff conflates the causation element of his discrimination claim in Count One
with his claim in Count Two that Defendant failed to accommodate his disability. His
theory of causation is that Defendant knew about his disability but did not initiate the
interactive accommodation process. (Doc. 56 at 8–10.)
The party from whom an accommodation is sought has an affirmative obligation to
engage in an “interactive process” triggered by notice of disability and desire for
accommodation. Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002) (discussing the
mandatory interactive process in the employment discrimination context); Barnett v. U.S.
Air, Inc., 228 F.3d 1105, 1112–14 (9th Cir. 2000), vacated on other grounds, U.S. Airways,
Inc. v. Barnett, 535 U.S. 391 (2002) (“The interactive process is triggered either by a
request for accommodation by a disabled employee or by the employer’s recognition of the
need for such an accommodation . . . .”).
Plaintiff identifies two distinct time periods during which he asserts Defendant was
required to engage in the interactive process and failed to do so. The first of these begins
on January 6, 2020 when Plaintiff presented his initial doctor’s note requiring him to leave
work early due to his UC. (Doc. 56 at 11.) Plaintiff contends that this note triggered
12 The Court notes, however, that Plaintiff “must prove a mens rea of ‘intentional
discrimination’ . . . by showing ‘deliberate indifference’ [or] ‘discriminatory animus’” to
recover monetary damages. Schmitt, 965 F.3d at 954 (quoting Lemahieu, 513 F.3d at 938).
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Defendant’s duty to consider reasonable accommodations. (Id.) Plaintiff later asserts that
he “clearly notified Defendant of his need for accommodation after the COVID-19
pandemic started” when, on April 9, 2020, Plaintiff submitted a third doctor’s note stating
“[i]t may be prudent for him to take some time off work to decrease his risk of COVID-19
exposure” because his immune system was compromised due to his disability. (Id. at 16.)
Plaintiff fails to establish a genuine dispute regarding causation. First, there is no
standalone claim for failing to engage in the interactive process itself—discrimination
results only from denying an available and reasonable accommodation. Gipaya v. Dept. of
Air Force, 345 F. Supp. 3d 1286, 1299 (D. Haw. 2018) (quoting Snapp v. United Transp.
Union, 889 F.3d 1088, 1095 (9th Cir. 2018)).
Second, Plaintiff alleges discrimination during two periods for which he did not
seek relief. Plaintiff never sought to convert the leave used from January 6, 2020 to April
8, 2020. Nor did he ever seek to convert the leave used from April 9, 2020 to September 6,
2020. As the Court previously emphasized, Plaintiff only seeks to convert the 533 hours
used from September 6, 2020 to March 19, 2021.
Third, Plaintiff’s focus is misplaced. He identifies the adverse action underlying his
discrimination claim as Defendant’s “denial of leave reinstatement and conversion.”13
(Doc. 56 at 8.) In other words, Count One arises out of Defendant’s refusal to retroactively
convert Plaintiff’s used leave. Yet, in his briefings, Plaintiff focuses on a different adverse
action—Defendant’s failure to proactively initiate the interactive process or to offer him
the accommodation of either telework or full time WSL. For example, Plaintiff cites the
DOD matrix prescribing telework or WSL. But this matrix—to the extent it was applicable,
comprehensive, and binding—guides prospective action, not a request to retroactively
13 For purposes of summary judgment, Defendants do not challenge that the denial of
Plaintiff’s leave conversion request constitutes an adverse employment action. Marrazzo
v. Leavitt, 719 F. Supp. 2d 1297, 1309 (D. Or. 2010) (“For purposes of a disability
discrimination claim [under the Rehabilitation Act], an adverse employment action is one
that ‘materially affect[s] the compensation, terms, conditions, or privileges of . . .
employment.’” (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008))).
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convert leave.14
The proper question before the Court is whether Plaintiff has put forth specific facts
showing there is a genuine dispute that Defendant discriminated against him solely because
of his disability when it denied Plaintiff’s request to convert and reinstate his leave. The
Court finds that Plaintiff has not.
Plaintiff names four non-disabled employees who received full time WSL when
they contracted COVID-19, arguing that Defendant treated him less favorably. (Id. at 9–
10.) This argument is a red herring. The situations are not comparable because Plaintiff
never contracted COVID-19. The argument is also irrelevant to the challenged adverse
action because none of the alleged comparators ever requested to retroactively convert their
leave.15
Plaintiff also cites the recommendation from Huddleston that Defendant reinstate
Plaintiff’s leave. The Court is unclear why Plaintiff asserts that memorandum is evidence
of discrimination. Huddleston did not conclude or even suggest that Defendant denied
Plaintiff’s request because of his disability. She merely reasoned that Baker failed to adhere
to procedure when he executed leave forms without Plaintiff’s signature, rather than
marking him AWOL. As the Court previously observed, a supervisor’s failure to follow
policy does not automatically default to discrimination.
In short, Plaintiff has not presented any evidence that, but for his disability,
Defendant would have retroactively converted his leave. Indeed, he neither alleges that
14 Moreover, even if a reasonable jury could conclude that Baker did not follow the newly
issued pandemic leave guidelines, there is nothing to suggest Baker “forced [Plaintiff] to
deplete his sick and annual leave” solely because of his disability. (Doc. 56 at 8–9.) The
Court recognizes that Baker may have violated policy by executing leave forms on
Plaintiff’s behalf; however, those efforts could not reasonably be found to be
discriminatory considering the alternative would have been that Plaintiff would have been
AWOL due to his own lapse in adherence to policy. In other words, for better or worse,
Baker appears to have been attempting to help Plaintiff by submitting his leave slips on his
behalf after Plaintiff abandoned even the most basic of his job responsibilities.
15 Plaintiff argues that an adverse inference should apply because Defendant allegedly
withheld OPM71s for the named comparators. (Doc. 56 at 13.) The Court disagrees. The
OPM71s for the named comparators are irrelevant for the reasons stated above.
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Defendant’s denial was based on discriminatory animus nor offers support that it was a
result, more broadly, of “thoughtlessness and indifference.” Schmitt, 965 F.3d at 954 n.5.
Plaintiff’s bare assertions, standing alone, are not sufficient to create a genuine dispute of
material fact to defeat summary judgment. Anderson, 477 U.S. at 247–48.
Similarly, to the extent any such analysis is necessary, there is no evidence that
shows that Defendant refused to proactively offer Plaintiff telework or full time WSL
solely because of his disability. On the contrary, Defendant had in place an accommodation
at Plaintiff’s request that Plaintiff work a reduced schedule for medical reasons. Plaintiff
never withdrew that accommodation request by informing his employer he was now
medically cleared to work full time. Absent such information, even under a broad but-for
analysis, no reasonable jury could find that Defendant discriminated against Plaintiff when
it did not assume that Plaintiff could work a full 8-hour day and offer means to
accommodate that.16 The Court, therefore, finds that Defendant is entitled to summary
judgment as to Count One.
3. Pretext
Assuming arguendo that Plaintiff established his prima facie case, he nonetheless
fails to present any disputed facts showing that Defendant’s actions were a pretext for
discrimination. To show pretext, Plaintiff must show that his employer’s proffered
explanation was unworthy of credence or that unlawful discrimination more likely
motivated the employer. Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)). The evidence must
be specific and substantial. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir.
1996) (citing Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994)).
Plaintiff argues that “Defendant unilaterally imposed a pre-pandemic leave
distribution formula . . . without individualized consideration” and “deviated from
established leave policies by charging Plaintiff with sick and annual leave for periods when
16 The Court notes that the fact that Plaintiff returned for one full day on March 24, 2021
does not change this analysis because the dates relevant to the alleged discrimination are
September 6, 2020 to March 19, 2021.
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it did not receive Plaintiff’s OPM 71s.” (Doc. 56 at 11.) This is neither specific nor
substantial evidence of pretext.
When Plaintiff inexplicably stopped submitting leave forms, Defendant replicated
a pattern of use of AL and SL that Plaintiff had personally requested before and after the
start of the pandemic. The fact that Baker did not comply with policy when he submitted
these forms without Plaintiff’s signature is not evidence by itself of discrimination. As the
Court previously observed, the alternative would have been to designate Plaintiff as AWOL
making him subject to disciplinary action.
Accordingly, even if Plaintiff had come forth with evidence showing a genuine
dispute as to his prima facie case, he fails to show any proof of pretext that would survive
summary judgment. Therefore, the Court’s finding that Defendant is entitled to summary
judgment as to Count One stands.
b. Count Two: Failure to Accommodate
The Court further finds that Defendant is entitled to summary judgment as to Count
Two of Plaintiff’s Amended Complaint.
1. Administrative Exhaustion
As a threshold matter, Plaintiff is required to exhaust his administrative remedies
before filing a Rehabilitation Act claim in federal court. EEOC v. Farmer Bros. Co., 31
F.3d 891, 899 (9th Cir. 1994); Simpson v. DeJoy, No. CV-20-00495-PHX-DWL, 2021 WL
2416831, at *4 (D. Ariz. June 14, 2021) (citing Cherosky v. Henderson, 330 F.3d 1243,
1245 (9th Cir. 2003)). To do so, he must notify an Equal Employment Opportunity
(“EEO”) counselor within 45 days of the alleged discriminatory conduct, and, if the matter
is not informally resolved, the employee may file a formal administrative complaint. 29
C.F.R. § 1614.105(a); Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001)).
“The jurisdictional scope of the plaintiff’s court action depends on the scope of the EEOC
charge and investigation.” Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003).
Ordinarily, a court only has jurisdiction over claims that were presented to the EEOC. Id.
“However, the district court has jurisdiction over any charges of discrimination that are
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‘like or reasonably related to’ the allegations made before the EEOC, as well as charges
that are within the scope of an EEOC investigation that reasonably could be expected to
grow out of the allegations.” Id. (quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.
1990)).
The Court “construe[s] charges filed before the EEOC . . . liberally.” Josephs v. Pac.
Bell, 443 F.3d 1050, 1061 (9th Cir. 2006). Nonetheless, “there is a limit to such judicial
tolerance when principles of notice and fair play are involved.” Freeman v. Oakland
Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (citation and internal quotation marks
omitted). Accordingly, “[t]he rule of liberal construction does not suggest that a plaintiff
sufficiently exhausts his administrative remedies under Title VII by merely mentioning the
word ‘discrimination’ in his or her EEOC administrative charge.” Id. at 637. Rather, the
relevant focus is on “the factual allegations made in the charge itself, describing the
discriminatory conduct about which a plaintiff is grieving.” Id.
In determining whether Plaintiff has exhausted allegations that he did not specify in
his administrative complaint, the Court considers: (1) the “alleged basis of the
discrimination;” (2) “dates of discriminatory acts specified in the charge;” (3) “perpetrators
of discrimination named in the charge;” and (4) “any locations at which discrimination is
alleged to have occurred.” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1100 (citation
omitted), abrogated on other grounds by Fort Bend Cnty., Texas v. Davis, 587 U.S. 541
(2019).
Here, Plaintiff did not exhaust his administrative remedies before filing Count Two
of his Amended Complaint. Plaintiff did not include any allegation that Defendant failed
to accommodate his disability in either his Informal EEO Complaint or his Formal EEO
Complaint. Instead, Plaintiff repeatedly noticed the following claim:
Whether the complainant, Mr. David Ruiz[,] was
discriminated against based on disability, Chronic
Ultracolitis [sic] (physical) when on 2 November 2022, Mr.
Dan Baker, Lodging Manager, 355 FSS/FSVL, did not
reinstate 127 hours of Annual Leave and 406 hours of Sick
Leave.
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(Doc. 51-26 at 12, 16.) Throughout the administrative remedies process, Plaintiff
specifically identified the challenged action as Defendant’s discrimination in refusing to
convert and reinstate his leave.
Moreover, Plaintiff’s unnoticed claim that Defendant did not accommodate his
disability is not like or reasonably related to his noticed discrimination claim. The noticed
claim centers on different actions and a different timeline. Specifically, Defendant would
have only known that Plaintiff challenged its action refusing to retroactively convert his
leave in November 2022. This is nearly two years after Defendant allegedly failed to
accommodate Plaintiff’s disability in 2020 and 2021. Even construed liberally, nothing in
Plaintiff’s Informal EEO Complaint or his Formal EEO Complaint would have put
Defendant on notice that Plaintiff intended to assert a failure to accommodate claim. To
find otherwise would run afoul of the principle of fair play.
Finally, even if Plaintiff’s failure to accommodate claim were sufficiently related to
his discrimination claim, Plaintiff did not contact an EEO counselor until November 16,
2022. Any claims based on actions prior to approximately October 1, 2022 fall outside of
the 45-day reporting deadline. Plaintiff argues that Defendant failed to accommodate him
after learning about his disability on January 6, 2020 and after being notified that Plaintiff
needed to take time off of work due to COVID-19 on April 9, 2020. (See Doc. 56 at 11,
16.) Both these triggering events occurred more than 45 days before Plaintiff ever
contacted an EEO counselor. “[A]bsent wavier, estoppel, or equitable tolling, ‘failure to
comply with this regulation is . . . fatal to a federal employee’s discrimination claim’ in
federal court.” Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d
1039, 1043 (9th Cir. 2009) (quoting Lyons, 307 F.3d at 1105); see also Gipaya, 345 F.
Supp. 3d at 1296 (“To the extent Plaintiff asserts claims for failure to reasonably
accommodate his disability based on these incidents, those fail to state plausible claims for
relief because Plaintiff fails to allege he contacted an EEO counselor within forty-five days
of the respective incidents. Those claims must therefore be dismissed.”). Plaintiff has not
argued waiver, estoppel, or equitable tolling. Therefore, allowing his claim to proceed
would improperly invalidate the regulatory reporting requirement.
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For these reasons, the Court finds that Defendant is entitled to summary judgment
on Count Two because Plaintiff did not exhaust his claim that Defendant failed to
reasonably accommodate his disability.
2. Merits
In an abundance of caution, the Court will nonetheless assess the merits of
Plaintiff’s failure to accommodate claim.
Plaintiff did not specify what accommodation he believes Defendant failed to
provide at Plaintiff’s request. The only denied accommodation that falls within the 45-day
period before Plaintiff contacted an EEO counselor was Defendant’s refusal to convert and
reinstate his leave. That claim fails because an accommodation cannot be retroactive.
Chandler v. DeJoy, No. CV-20-00924-PHX-DWL, 2024 WL 359469, at *14 (D. Ariz. Jan.
31, 2024) (“Since reasonable accommodation is always prospective, an employer is not
required to excuse past misconduct even if it is the result of the individual’s disability.”
(quoting U.S. Equal Employment Opportunity Comm’n, No. 915.002, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act 36 (2002))); see also Trahan v. Wayfair Maine, LLC, 957 F.3d 54, 65 (1st
Cir. 2020) (“Even though reasonableness necessarily depends on the circumstances of a
given case, some general principles apply. For instance, a requested accommodation that
simply excuses past misconduct is unreasonable as a matter of law. After all, the ADA does
not oblige an employer to accommodate an employee’s disability retroactively.”).
However, Plaintiff seems to argue that Defendant should have offered him the
accommodation of telework. If Plaintiff had noticed this claim—which he did not—and if
it fell within the 45-day notice period—which it does not—Plaintiff still cannot show a
genuine dispute of material fact exists that Defendant received adequate notice of his need
to telework.
A failure to accommodate claim requires the plaintiff to show (1) he was a qualified
individual, (2) the employer received adequate notice of the need for an accommodation,
and (3) a reasonable accommodation was available that would not place an undue hardship
on the employer’s business. Snapp, 889 F.3d at 1095. “[N]otifying an employer of a need
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for an accommodation triggers a duty to engage in an ‘interactive process[.]’” Id. However,
“[t]he employer’s duty to provide an accommodation is not triggered unless the employee
‘provides the employer with enough information that, under the circumstances, the
employer can be fairly said to know of both the disability and desire for an
accommodation.’” Marquez v. Glendale Union High Sch. Dist., No. CV-16-03351-PHX-
JAT, 2018 WL 4899603, at *19 (D. Ariz. Oct. 9, 2018) (quoting Taylor v. Phoenixville
Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)) (emphasis added).
For purposes of this analysis, the Court will presume that there is a genuine dispute
as to whether Plaintiff was a qualified individual. See supra Section IV(a)(1). However,
Plaintiff has not shown a dispute regarding the second element of his claim. Although
Defendant knew about Plaintiff’s disability, Plaintiff never told Defendant he needed any
accommodation other than to leave work early or not come to work at all.
Prior to the pandemic, Plaintiff submitted two doctor’s notes that required Plaintiff
to leave work early. There was no mention that Plaintiff sought to complete his hours from
home, or even that he was medically able to do so. Then, from March 2020 to February
2021, Plaintiff submitted four notes from his doctor stating that Plaintiff needed to take
time off work due to the pandemic. Again, there was no mention that Plaintiff was
medically able to work from home, let alone any suggestion that Plaintiff desired the option
to telework. The only accommodation that Plaintiff asked for was the accommodation he
repeatedly received—to leave work early or take an extended absence.
It was not until the note dated February 2, 2021 that Defendant could arguably have
received any notice of the need for a different accommodation. Plaintiff’s doctor stated he
was “medical qualified – if restrictions [were] accommodated” including “allow[ing]
[Plaintiff] to work from home to avoid exposure to Covid.” (Doc. 51-10 at 46 (emphasis
added).) At this time, Defendant did not engage in discussions with Plaintiff about
teleworking, but shortly thereafter, on March 29, 2021, Plaintiff submitted another note
again stating he was not permitted to return to work at all until May 3, 2021. (Id. at 56.)
That note did not indicate Plaintiff would be able to work from home nor that he wanted
to. Thus, Plaintiff fails to present sufficient disputed facts that create a triable issue
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regarding the second element of his failure to accommodate claim. The Court need not
assess the third element of whether Plaintiff’s accommodation presents an undue hardship
to Defendant. Accordingly, Defendant is entitled to summary judgment as to Count Two.
V. Conclusion
For the foregoing reasons, the Court finds that summary judgment in favor of
Defendant on Plaintiff’s Amended Complaint is appropriate. The pleadings and supporting
documents, even viewed in the light most favorable to Plaintiff, “show[] that there is no
genuine issue as to any material fact and [Defendant] is entitled to judgment as a matter of
law.” Celotex, 477 U.S. at 322 (quoting Fed. R. Civ. P. 56(a), (c)).
Accordingly,
IT IS ORDERED:
(1) Defendant’s Motion for Summary Judgment is GRANTED. (Doc. 50.)
(2) Plaintiff’s Motion for Partial Summary Judgment is DENIED. (Doc. 52.)
(3) The Clerk of Court shall enter judgment in favor of Defendant and close the
file in this matter.
Dated this 31st day of March, 2026.
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