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Federal Court Denies Summary Judgment in ADA Discrimination and Retaliation Case

Harrison Paige

On April 4, 2017, in Vasquez v. Smith’s Food & Drug Centers, Inc., the U.S. District Court for the District of Arizona denied summary judgment on Juanita Vasquez’s disability discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”). Vasquez alleged that that Smith’s Food & Drug Centers (“Smith’s”) had discriminated against her based on her disability by failing to accommodate her fibromyalgia and terminating her for her use of a previously approved accommodation. The court found that disputes of material fact remained which required that the case proceed to trial.

In 2009, Vasquez, a 17–year Smith’s employee, was diagnosed with fibromyalgia, a chronic condition which causes musculoskeletal pain, fatigue, disordered sleep, and memory and mood problems. Vasquez’s primary care physician completed a “Medical Accommodation Questionnaire” to submit to Smith’s after her diagnosis, stating that Vasquez could not stand for more than two hours, lift over ten pounds, or bend and stoop frequently. These restrictions disqualified Vasquez from working in certain positions at Smith’s, such as cashier roles, but Frank Orozco, the store manager at Vasquez’s location at the time, assigned her to work as a courtesy clerk and administrative secretary to accommodate her disability-related limitations.

Vasquez was given an “override card” to use in the performance of her new administrative duties. The card granted Vasquez access to the physical Smith’s office building and to administrative documents, such as work schedules, payroll, and time sheets. Smith’s also allowed Vasquez to use her override card to modify her work schedule to accommodate her fibromyalgia symptoms—for example, by using the card to enter the building before normal office hours to complete work. She was never told by Smith’s management that she was prohibited from using the override card for herself, nor did she ever see a rule in the employee handbook prohibiting such a use of the card.

However, Vasquez began to face discrimination at work when Mr. Orozco retired in 2012 and was replaced with a new manager, Jay Monteverde. In light of the new leadership, Vasquez re-submitted her physician’s report and request for accommodations to Smith’s Human Resources Department in February 2013. She subsequently attended a meeting with HR that did not come to any definitive conclusion regarding accommodations. Just before Vasquez went on vacation in 2013, Monteverde instructed Vasquez to schedule herself for cashier training, but Vasquez objected, reminding Monteverde of her medical restrictions. When she returned from vacation, she was told she would have to transfer to another store or switch to part-time work because Monteverde allegedly “did not want to accommodate her disability.”

Vasquez transferred to a different location, but the discrimination continued there, as well. Like Monteverde, the manager of the new location failed to accommodate Vasquez’s disability. At the end of 2013, Vasquez was suspended for three days without pay, purportedly because she had used her override card to set her own schedule. Vasquez was shocked and objected to the suspension, as she had been using the override card to modify her schedule to accommodate her fibromyalgia for years without issue, and there was no Smith’s policy against doing so.

Vasquez’s objection went ignored, however, and only a few months later, she was suspended for a second time, again “because of improper use of her override number.” Five days after this second suspension, Smith’s terminated Vasquez, yet again citing Vasquez’s use of her override card. After her termination, Vasquez filed charges of discrimination with the Arizona Civil Rights Division and the Equal Employment Opportunity Commission, alleging disability discrimination and retaliation, and subsequently brought suit in Arizona federal court under the ADA and Rehabilitation Act in September 2014.

Smith’s moved for summary judgment, which the court granted on the Rehabilitation Act claims (finding that Smith’s was not subject to the Rehabilitation Act because it does not receive federal funding), but denied on the ADA claims. The court specifically highlighted the temporal proximity between Vasquez’s formal request for accommodations in February 2013 and her termination less than one year later as potentially evidencing discrimination and retaliation. The court also holds that only a jury could make a determination as to the material facts and credibility of the two parties in this case. As such, Vasquez’s ADA discrimination and retaliation claims could move forward to trial.

If you believe you have been treated unfairly in your workplace because of a disability or any other protected status like race or sex, contact The Harman Firm, LLP.

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