Nadler v. City of Tucson

Vonda Nadler, Plaintiff, v. City of Tucson, et al., Defendant.

No. CV-20-00085-TUC-RM

United States District Court, D. Arizona

December 27, 2022

ORDER

HONORABLE ROSEMARY MARQUEZ, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant City of Tucson's Motion for Summary Judgment. (Doc. 60.) Plaintiff filed a Response (Doc 66) and Defendant replied (Doc. 70). For the reasons set forth below, the Motion will be granted.

I. Summary Judgment Standard

A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and to show (1) that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and (2) that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “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) (internal citation omitted); see Fed.R.Civ.P. 56(c)(1).

At summary judgment, the Court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Pure questions of law, where there is no disputed issue of fact, are appropriate for summary judgment. Schrader v. Idaho Dep't of Health & Welfare, 768 F.2d 1107, 1110 (9th Cir. 1985). “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250. “[T]his standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.” Id. (internal citation omitted). In its analysis, the Court must accept the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The Court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

II. Factual Background

Plaintiff Vonda Nadler (“Plaintiff” or “Nadler”) is employed by Defendant City of Tucson (“Defendant” or “the City”) as a Public Safety Dispatch Specialist II. (Doc. 61 ¶ 1.)^[1] In her position, Nadler answers calls and dispatches the appropriate response units to police, fire, and medical 911 calls. (Id. ¶ 2.) Nadler completed the 18-month training for this position in 2010. (Id. ¶ 3.) Nadler is a full-time, hourly employee and her schedule follows what is known as a “3/4 schedule,” which is comprised of one week of three 12-hour shifts (36 hours total), followed by one week of four 12-hour shifts (48 hours total). (Id. ¶¶ 5-6.) The 36-hour week is considered four hours short of the 40-hour requirement for full time, while the 48-hour week is considered 40 hours at the regular hourly pay rate plus 8 hours of overtime pay. (Id. ¶¶ 7-8.) An employee working this schedule, including Nadler, has the option of either applying 4 of the 8 extra hours from the 48-hour week to the 36-hour week in order to reach the hourly full-time requirement for both weeks, or, alternatively, be paid overtime for the extra 8 hours from the 48-hour week and work additional hours to make up for the 4 additional hours needed to make the 36-hour week full-time. (Id. ¶¶ 9-10.)

Separate from and in addition to the 3/4 schedule, employees have the option of signing up for voluntary overtime. (Id. ¶ 11.) Because the City's emergency response services are short-staffed, essentially unlimited overtime is available to employees. (Id. ¶¶ 4, 12.) Employees have three ways to sign up for voluntary overtime. (Id. ¶ 13.) An employee can (1) sign up in advance for voluntary overtime hours using the Telestaff program (“ASUO” shifts); (2) respond to very short notice voluntary overtime shifts (“VSNO” shifts), which apply to same-day or next-day shifts; or (3) inform her supervisor of her availability and ask whether there are shifts available during that period. (Id. ¶¶ 15-17.) Several City Administrative Directives (“AD”) apply to Nadler's position, including (1) Rules of Conduct; (2) Employee Leaves; (3) Family and Medical Leave; (4) Reasonable Accommodation; and (5) Anti-Harassment. (Id. ¶¶ 18-32.) These Directives contain the City's policies regarding each topic, and each applies to Nadler's position. (Id.)

Nadler has three health conditions that underlay her Family Medical Leave Act (FMLA) leave requests from 2018 through 2021-Meniere's Disease, Fibromyalgia, and Lupus. (Id. ¶ 33.) Meniere's Disease is an inner ear disease that causes ringing in the ears and impacts an individual's hearing ability. (Id. ¶ 35.) Nadler experiences flares of Meniere's Disease about once per week. (Id. ¶ 37.) Fibromyalgia is a nerve disorder that causes pain in the muscles, which Nadler mostly experiences as pain in the shoulders and neck, and headaches. (Id. ¶ 38.) She experiences flares of fibromyalgia about once per month, and sometimes experiences flares of Meniere's Disease and fibromyalgia simultaneously. (Id. ¶ 39-40.) Lupus is an auto-immune disease that causes symptoms including pain, body aches, and cognitive issues including difficulty remembering and focusing. (Id. ¶ 41-42.) Nadler experiences lupus flares about once per month. (Id. ¶ 43.)

This case arises out of Nadler's attempted use of FMLA leave to excuse her health-related absences from voluntary overtime shifts. Nadler has stated “FML” when calling in absent on voluntary overtime shifts, and those absences are recorded as “FML” on the City's attendance spreadsheet. (Id. ¶ 50.) However, the City maintains, and Nadler admits, that absences from voluntary overtime shifts are not covered under the FMLA. (Id. ¶ 51.) Specifically, Nadler testified that when an employee calls in absent on a voluntary overtime shift, no leave balances are applied to those absences; this is consistent with City policy. (Id.; Doc. 60 at 7.) The City has never denied Nadler FMLA leave for absences from her regular 3/4 schedule. (Id. ¶ 52.)

As a result of her repeated unscheduled absences from voluntary overtime shifts, the City initially restricted Nadler from signing up for voluntary overtime shifts on three occasions: (1) a 60-day restriction on signing up for ASUO shifts, with no restriction on VSNO shifts, in March 2017; (2) a three-month restriction on signing up for ASUO shifts, with no restriction on VSNO shifts, in April 2018; and (3) a three-month restriction on signing up for ASUO shifts and a two-month restriction on signing up for VSNO shifts, in November 2018. (Id. ¶¶ 55-65.) These restrictions were accompanied by “special evaluations” documenting the issue of Nadler's absences from scheduled overtime shifts and how this negatively impacted the emergency services department, which was already critically short-staffed. (Id.) On May 23, 2019, Nadler emailed one of her supervisors, Geoff Kuhn, inquiring whether her ability to sign up for overtime shifts would be restricted again due to having to call out “because of FML reasons.” (Id. ¶ 66.) Mr. Kuhn responded that the restrictions on Nadler's overtime signups were due to her short-notice absences from voluntary overtime shifts, which prevented others from signing up for those shifts during an already understaffed time period. (Id. ¶ 67.) Mr. Kuhn clarified that FMLA does not apply to voluntary overtime. (Id.)

On June 25, 2019, Nadler filed a charge with the Civil Rights Division of the Arizona Attorney General's Office and the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶¶ 68-70.) On July 19, 2019, following its receipt of the charge, the City sent Nadler a reasonable accommodation packet for completion, but she did not complete it. (Id. ¶¶ 71-76.) Nadler's annual evaluation in 2019 identified her absences from voluntary overtime shifts as an area needing improvement. (Id. ¶¶ 77-82.) After Nadler informed her supervisor that the absences were “not something [she] can work on” and that her conditions were “going to get worse with time, not better,” the evaluation was revised to omit the attendance-related statements. (Id.)

In September 2019, Nadler received another “special evaluation” that restricted her ability to sign up for ASUO shifts for a six-month period. (Id. ¶¶ 83-85.) Her ability to sign up for VSNO was not restricted and she worked VSNO shifts during this period. (Id•)

Nadler claims her three medical conditions constitute a disability under the Americans...