Opinion
No. CIV 05-1036 PHX RCB.
September 13, 2006
ORDER
In this employment discrimination action, Plaintiff alleges violations of the Arizona Civil Rights Act ("ACRA") and the Americans with Disabilities Act ("ADA"), and asserts claims for wrongful discharge in violation of public policy, and intentional infliction of emotional distress. Third Am. Compl. (doc. # 36) ¶¶ 21-29. Currently pending before the Court are Defendant's motion for summary judgment (doc. # 20) and motion to strike (doc. # 27), both of which have been fully briefed. Having carefully considered the arguments raised, the Court now rules. . . .
I. BACKGROUND
A. Undisputed Facts
The Town of Wickenberg ("Defendant") has only one animal control officer ("ACO") position, which requires the individual to be out in the field essentially full-time in a forty-hour week. Def.'s Statement of Facts (doc. # 21) ("DSOF") ¶¶ 3-4. The written job description indicates that the "essential duties and responsibilities" include "[p]atrol[ing] streets to locate stray animals and promptly capture animals and transport them to an animal shelter." Pl.'s Statement of Facts (doc. # 25) ("PSOF"), Ex. 3 at 1. When there is no ACO available to secure animals, that duty is performed by the town's police officers. DSOF ¶ 16.
The words "police aid" have recently been added to the title of the position, reflecting the addition of clerical functions to the ACO's essential duties. PSOF ¶¶ 7-8.
According to Plaintiff, the ACO would regularly use a police radio to call for assistance with large animals such as deer, which would require more than one individual to move. See PSOF, Ex. 1 ¶ 7.
On March 6, 1992, Defendant hired Plaintiff Penny Denton as a part-time ACO. DSOF ¶ 1; PSOF ¶ 1. Plaintiff's status was changed to full-time ACO on July 1, 1999. DSOF ¶ 2; PSOF ¶ 1.
On May 30, 2001, while pursuing stray dogs, Plaintiff got caught on a fence, and sprained her left ankle. DSOF ¶ 7. Plaintiff underwent four separate surgeries for her ankle, and commenced industrial leave on July 10, 2001. Id. ¶¶ 8, 10. Although she was scheduled to return on July 23, 2001, Plaintiff's treating physician, Gustavo J. Armendariz, M.D., did not release her to light duty status until September 4, 2001.Id. ¶¶ 10-11. Thereafter, in May of 2002, Plaintiff came under the care of Stanley C. Graves, M.D., who performed the second of Plaintiff's four ankle surgeries on June 11, 2002. Id. ¶¶ 12-13. Dr. Graves released Plaintiff to work in October of 2002, subject to the following work restrictions: (1) no lifting or carrying of more than twenty-five pounds and (2) no walking on uneven ground.Id. ¶ 14. Plaintiff was subsequently placed on light-duty status. Id. ¶ 15; PSOF ¶ 34.
In his treatment notes of January 2, 2003, Dr. Graves indicated that Plaintiff continued to struggle on light-duty status, and that she "will always have an abnormal ankle. She will always have an impairment and . . . it is unlikely that she will ever return to significant walking and standing." DSOF ¶ 17. Dr. Graves also reported the following restrictions:
[Plaintiff] will always have permanent restrictions even with a solid fusion or ankle replacement. These will not change even after surgery. These would require approximately 3 hours standing in an entire shift at most. She would not be able to lift more than 20 lbs. She could not squat, stoop or climb ladders. She would have to remain on even surfaces.Id. Plaintiff then underwent additional surgeries on April 23, 2003 and November 5, 2003. Id. ¶ 19. On May 11, 2004, an independent medical examination ("IME") was performed by Dr. William Leonetti, M.D., who advised as follows:
I believe that based on her motion limitations, [Plaintiff] should avoid standing any time longer than four hours per 8-hour shift. She should avoid working on any unlevel ground surfaces. She should avoid any climbing, excessive use of stairs or ladder use. Her lifting should be limited to 45 pounds. She should avoid pushing and pulling over 50 pounds. She should avoid any impaction type activities. These work restrictions will be permanent.Id. ¶¶ 26-27.
On June 25, 2004, Plaintiff received notice that her employment would be terminated effective July 1, 2004, citing her inability to perform the duties of ACO on account of her permanent work restrictions. DSOF, Ex. O.
In a handwritten note dated July 9, 2004, Dr. Graves released Plaintiff to full-duty for the ACO position. DSOF ¶¶ 30-31. However, in his March 3, 2005 testimony before the Industrial Commission of Arizona, Dr. Graves stated that no one with an ankle fusion would be able to stand for 90% of an eight-hour shift, run occasionally, or traverse uneven ground while restraining or retaining animals. Id. ¶¶ 32-33. Dr. Leonetti similarly testified that Plaintiff could not perform those duties, noting that the "difficulty will be running and/or walking or moving on uneven surfaces," and explaining that a person with a fused ankle joint would have a "considerable loss of balance." Id. ¶¶ 34-35. However, Dr. Leonetti also testified that it would be an "excellent idea" for Plaintiff to receive a supportive care award for an ankle brace, "especially if she is going to try and be physically active." PSOF, Ex. 11 at 10-11.
B. Disputed Facts
Based on Plaintiff's testimony before the Industrial Commission of Arizona, Defendant contends that the ACO spends over ninety percent of the workday on her feet, and is required to walk on uneven surfaces and run occasionally. Id. ¶¶ 5-6. In an effort to clarify that testimony, Plaintiff has submitted an affidavit explaining that she understood the phrase, "up on your feet," as distinguishing between the time spent at her desk and the time spent on patrol outside the office. PSOF ¶ 28. Plaintiff states that the majority of her patrols as the ACO were conducted from a patrol vehicle, not on foot, and that she rarely ran or jogged on the job to pursue or capture animals. Id. ¶¶ 31-32.
During her time on light-duty status, the chief of police would regularly instruct Plaintiff to radio for assistance if she could not lift an animal. PSOF ¶ 34. The parties disagree as to whether, in light of this assistance, Plaintiff was performing all of the ACO's essential duties. See DSOF ¶ 15; PSOF ¶ 34.
II. STANDARD OF REVIEW
Summary judgment is appropriate "when there is no genuine issue of material fact" such that "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. In determining whether to grant summary judgment, a district court must view the underlying facts and the inferences to be drawn from those facts in the light most favorable to the nonmoving party. See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
If a party will bear the burden of proof at trial as to an element essential to its claim, and fails to adduce evidence establishing a genuine issue of material fact with respect to the existence of that element, then summary judgment is appropriate.See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Not every factual dispute is capable of defeating a properly supported motion for summary judgment. Rather, the party opposing the motion must show that there is a genuine issue ofmaterial fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A factual dispute is genuine if the evidence is such that a rational trier of fact could resolve the dispute in favor of the nonmoving party. Id. at 248. A fact is material if determination of the issue might affect the outcome of the case under the governing substantive law. Id. Thus, a party opposing a motion for summary judgment cannot rest upon bare allegations or denials in the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. See id. at 250. If the nonmoving party's evidence is merely colorable or not significantly probative, a court may grant summary judgment. See id. at 249; see also Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987).
III. DISCUSSION
Plaintiff's Third Amended Complaint alleges violation of the ACRA (Count 1), wrongful discharge in violation of public policy (Count 2), intentional infliction of emotional distress (Count 3), and violation of the ADA (Count 4). Third Am. Compl. (doc. # 36) ¶¶ 21-29. In her response to Defendant's motion for summary judgment, Plaintiff states that she does not oppose dismissal of her state law claims for wrongful discharge and intentional infliction of emotional distress (Counts 2 and 3). Accordingly, the Court will grant Defendant's motion with respect to Counts 2 and 3, and resolve the motion with respect to the remaining ADA and ACRA claims (Counts 1 and 4) below. See Resp. (doc. # 24) at 15.
A. Motion to Strike Plaintiff's Affidavit
Before addressing Defendant's motion for summary judgment, the Court turns to Defendant's motion to strike Plaintiff's affidavit. Defendant alleges that Plaintiff's affidavit is a self-serving "sham" that is contradictory to Plaintiff's prior sworn statements. Mot. (doc. # 27) at 4-5. Rule 12(f) permits the court to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f) (emphasis added). By its terms, Rule 12(f) applies to pleadings and not affidavits. See id.; Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983); Charles Alan Wright Arthur R. Miller, 5C Federal Practice Procedure § 1380 (3d ed. 2005) (Rule 12(f) is "neither an authorized nor a proper way . . . to strike an opponent's affidavits.").
Defendant does not argue in terms of Rule 12(f), which is the proper basis for striking matters from pleadings, but, instead, reminds the Court "that a party cannot `create' an issue of fact by an affidavit contradicting her prior testimony" in order to survive summary judgment. Mot. (doc. # 27) at 4 (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). The Ninth Circuit's rule in Kennedy establishes the weight to be accorded evidence by a court in considering a motion for summary judgment, and does not require the court to actually strike the alleged "sham" affidavit proffered by the non-moving party. See Kennedy, 952 F.2d at 266-67. Therefore, the Court will deny Defendant's motion to strike (doc. # 27).
The motion is denied only on the technical basis that Defendant has requested an unnecessary form of relief, when the matter could have been adequately briefed in Defendant's reply in support of the underlying motion for summary judgment (doc. # 20) and a sur-reply by Plaintiff, if requested. As such, in resolving the motion for summary judgment (doc. # 20), the Court will still consider the substance of Defendant's arguments, and Plaintiff's response, regarding whether Plaintiff's affidavit is truly a "sham" that fails to create a genuine issue of material fact.
B. Motion for Summary Judgment
Defendant argues that summary judgment is appropriate with respect to Plaintiff's ACRA and ADA claims (Counts 1 and 4), because (1) Plaintiff cannot show that she was a "qualified individual with a disability," 42 U.S.C. § 1211(8), Ariz. Rev. Stat. § 41-1461(8) (West 2004), at the time of the adverse employment action, and (2) Plaintiff cannot show any evidence of pretext to overcome Defendant's legitimate, non-discriminatory reason for terminating her employment. Mot. (doc. # 20) at 4-8.
1. Qualified Individual with a Disability
Both the ADA and ACRA prohibit an employer from discriminating against an individual with a disability by terminating the person's employment because of that disability. 42 U.S.C. § 12112(a); Ariz. Rev. Stat. § 41-1463(B)(1) (West 2004). In addition, both acts make it unlawful for an employer to fail to make reasonable accommodations to the known physical limitations of an otherwise qualified individual, unless the employer can demonstrate that the accommodation would impose an undue hardship. 42 U.S.C. § 12112(b)(5)(A); Ariz. Rev. Stat. § 41-1463(F)(4) (West 2004). To prevail on her ADA and ACRA claims, Plaintiff must first prove that she is a "qualified individual with a disability," i.e., that she was "an individual with a disability who, with or without reasonable accommodation," could perform all of the essential functions of the job of ACO. See 42 U.S.C. § 1211(8); 29 C.F.R. § 1630.2(m); Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1225 (9th Cir. 2001);accord Ariz. Rev. Stat. § 41-1461(8) (West 2004).
In its motion for summary judgment, Defendant argues that Plaintiff's ADA and ACRA claims fail as a matter of law, because she could not perform the essential functions of the job of ACO, and, therefore, was not a "qualified individual with a disability." Mot. (doc. 20) at 4-6. In particular, Defendant asserts that the position's essential functions of patrolling the town and responding to calls of animals at large require the ability to run and walk on uneven surfaces — activities which Plaintiff, with or without reasonable accommodation, could not perform due to the condition of her ankle. See id. Plaintiff contends that summary judgment is inappropriate, because there are genuine issues of material fact as to (1) whether running and traversing uneven terrain are essential functions of the job of ACO and (2), even if they were, whether she could perform those essential functions with or without reasonable accommodations. Resp. (doc. # 24) at 7-14.
a. Essential Functions
"The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. § 1630.2(n)(1). The essential functions of a given position are determined on a case by case basis, taking into consideration such factors as written job descriptions, the work experience of past incumbents in the job, the number of employees available to perform the function, and the employer's judgment as to which functions are essential. 29 C.F.R. § 1630.2(n); see also Rent A Ctr. v. Indus. Comm'n, 191 Ariz. 406, 956 P.2d 533, 536 (Ct.App. 1998). In the instant case, the relevant factors demonstrate that the activities of running and traversing uneven terrain are part and parcel of the ACO's essential functions, and there is no evidence from which a rational trier of fact could conclude otherwise.
Because the ACRA was modeled after the federal employment discrimination laws of Title VII, Arizona courts apply federal case law in applying the ACRA. See Francini v. Phoenix Newspapers, Inc., 188 Ariz. 576, 937 P.2d 1382, 1388 (Ct.App. 1996).
(i). Written Job Description
The written job description indicates that the ACO's "essential duties and responsibilities" include "[p]atrol[ing] streets to locate stray animals and promptly capture animals and transport them to an animal shelter." PSOF, Ex. 3 at 1.
Plaintiff claims that the position has "morphed" into a clerical job, because the words "police aid" have been added to, or substituted for, the title of "animal control officer." Resp. (doc. # 24) at 11. Plaintiff's primary basis for this claim arises from Police Chief Anthony Melendez's deposition testimony and a letter from Police Commander Gary Newton. See PSOF ¶¶ 7-8. However, this evidence is hardly colorable, and not significantly probative on the point Plaintiff seeks to establish. Chief Melendez's testimony merely indicates that the change in title reflected the addition of clerical duties to the job responsibilities. PSOF, Ex. 4 at 6-7. In other words, the police aid/ACO is still expected to control animals, which as before, entails patrolling the streets to capture and transport the animals. Even if the majority of time on the job is spent performing desk duties, that does not demonstrate, as Plaintiff now suggests, that the pursuit and capture of animals are no longer essential functions of the position. Indeed, the position seems to exist for the performance of those very functions. Moreover, Commander Newton's letter, although referring to the position as "police aid" rather than "police aid/animal control officer," says nothing about job duties to substantiate Plaintiff's apparent belief that the animal control duties have suddenly become incidental or optional. PSOF, Ex. 12. As such, the Court finds that this evidence does not establish a genuine issue of material fact as to the ACO's essential functions. See Cal. Architectural Bldg. Prods., Inc., 818 F.2d at 1468. On balance, the written job description for the position shows that the ACO's primary duties include patrolling the streets to locate, capture, and transport animals.
Plaintiff's arguments suggest that if the balance of time spent pursuing and capturing animals is outweighed by time spent performing desk duties or patrolling the streets in her vehicle, then the capture of animals is no longer an essential function. This reasoning is flawed, because it places inordinate value on how time is spent without considering the relative significance of the duties performed in that time. Under this logic, a town would have to be significantly overpopulated with animals before the ACO would be expected to control animals. Until then, capturing animals would only be an incidental duty as compared to the seemingly more essential functions of doing desk work and cruising the streets.
(ii). Experience of Past Incumbent in the Job
In discussing her work experience as a past incumbent in the job, Plaintiff testified before the Industrial Commission of Arizona that the ACO position required her to be in the field essentially full-time, spending over ninety percent of that time on her feet, and that the job required her to walk on uneven surfaces and occasionally run. DSOF, Ex. D at 18-19.
Plaintiff now argues that her prior testimony before the Industrial Commission of Arizona should not be construed as implying that she was literally "out in the field" or "up on [her] feet" running for ninety percent of the day. See Resp. (doc. # 24)at 10-11. Rather, Plaintiff maintains that she intended to convey that she spent most of her day away from her desk, patrolling the streets in the patrol vehicle. See PSOF, Ex. 1 ¶¶ 13-17. However, Plaintiff does not contend that she never ran or traversed uneven surfaces to capture an animal. See id. ¶¶ 18-20. Even if Plaintiff spent most of her time in her patrol vehicle, or was able to capture most animals without a significant chase, the brevity of time spent on foot — possibly running, possibly crossing uneven terrain — does not rule out those activities from the ACO's essential function of capturing animals. Plaintiff's belief that running would tend to "spook" the animals, making their capture more difficult, may be well supported in her experience, yet even Plaintiff seems to accept that it is sometimes necessary to run in order to capture an animal. See id. ¶ 18. Therefore, Plaintiff's testimony about her experience as an incumbent in the job, even as clarified in her recent affidavit, tends to show that running and traversing uneven terrain are essential functions of the job.
In its motion to strike, Defendant hastens to characterize Plaintiff's attempt to clarify her prior testimony as a "sham" affidavit that should be disregarded. See Mot. (doc. # 27) at 4-5. The Court disagrees. Although self-serving affidavits rarely create genuine issues of material fact, the Ninth Circuit has expressly cautioned that district courts are not to discount every seemingly "contradictory affidavit" that is introduced to explain earlier testimony. Kennedy, 952 F.2d at 266-67. Rather, the district court must make a determination that the seemingly contradictory affidavit actually is a "sham." Id. at 267.
Having reviewed the hearing transcript, the Court finds that Plaintiff's clarification of potential ambiguities in her earlier testimony is reasonable. Indeed, her understanding of "out in the field" as meaning that she was simply away from her desk patrolling the streets in a vehicle, as is customary in modern times, seems more plausible than Defendant's view that she was literally on her feet for ninety percent of the day. Therefore, the Court will not discredit Plaintiff's affidavit as a pure "sham."
(iii). Number of Employees Available to Perform Function; and Employer's Judgment as to Which Functions are Essential
The fact that there is only one ACO makes it imperative that the person selected for the position be able to run and cross uneven terrain in the pursuit of animals, and Defendant's judgment as to the essential functions is evidently the same.See DSOF ¶ 3; DSOF, Ex. O. Although the original job description does not expressly state that running and traversing uneven terrain are essential functions, it is apparent that these activities are the natural concomitants of the position's essential function of patrolling the streets to locate, capture, and transport animals. See PSOF, Ex. 3 at 1, 3.
A party opposing a motion for summary judgment cannot rest upon mere allegations or denials in the pleadings or papers, but instead must set forth specific facts demonstrating a genuine issue for trial. Anderson, 477 U.S. at 250. Here, the Court finds that Plaintiff has failed to set forth specific facts demonstrating a genuine issue for trial regarding the essential functions of the position of ACO. Summary judgment is appropriate "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. Based on the undisputed facts, reasonable jurors could not differ as to the conclusion that running and traversing uneven terrain are essential functions of the position of ACO. Therefore, summary judgment is appropriate on the issue of essential functions. . . .
b. Reasonable Accommodations
"[T]he employee bears the burden of proving the existence of specific reasonable accommodations that the employer failed to provide." Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). The term "reasonable accommodation" means "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii). Reasonable accommodations under the ACRA and ADA may include the "acquisition or modifications of equipment or devices." Ariz. Rev. Stat. § 41-1461(9)(b) (West 2004); accord 29 C.F.R. § 1630.2(o)(2)(ii). However, an employer is generally not expected, in making a reasonable accommodation, to assign the essential functions of one position to employees in other positions. See, e.g., Rent A Ctr., 956 P.2d at 536 (citing Reigel v. Kaiser Found. Health Plan of N.C., 859 F. Supp. 963 (E.D.N.C. 1994)).
Defendant argues that Plaintiff could not, with or without reasonable accommodations, perform the essential functions of running and traversing uneven terrain, and, therefore, was not a "qualified individual with a disability" under either the ADA or ACRA. Mot. (doc. 20) at 4-6. Plaintiff responds that, whatever the essential functions of the job are determined to be, there were reasonable accommodations that would have permitted her to perform those functions. Resp. (doc. # 24) at 12. Specifically, Plaintiff contends that (1) a vehicle to patrol the streets, (2) a radio to call police officers for assistance with animals she could not lift alone due to her physical limitations, and (3) an ankle brace to assist her in being physically active would constitute reasonable accommodations enabling her to perform the essential functions of the job. Id. at 12-13.
(i) Patrol Vehicle
Plaintiff claims that the ACO's patrol vehicle is a reasonable accommodation that would allow her to perform the essential functions of the job. See Resp. (doc. # 24) at 12. It is hard to imagine the patrol vehicle as a reasonable accommodation when it is listed in the job description among the equipment that the ACO is expected to use. See PSOF, Ex. 3 at 3. More importantly, although the vehicle may assist the ACO in patrolling the town's streets, there is no indication of how it would eliminate the need for Plaintiff to run or cross uneven terrain when pursuing animals. See PSOF, Ex. 1 ¶ 18. Absent some special accoutrements that have not been brought to the Court's attention, it is unfathomable that the patrol vehicle would assist Plaintiff in such a way that she would never have to disembark her vehicle to capture an animal. Accordingly, the Court finds no triable issue as to whether the patrol vehicle is a reasonable accommodation in this case.
(ii) Police Radio
As another reasonable accommodation, Plaintiff suggests that she would be "free to radio for assistance in the event she encountered an animal that any physical limitations prevented her from capturing or picking up." See Resp. (doc. # 24) at 12 (emphasis added). In support, Plaintiff states (1) that she "was never disciplined for radioing for assistance and frequently was reminded to radio for assistance," and (2) that "[a]fter [her] injury, when [she] was placed on light duty status, the Chief of Police would regularly instruct [her] to radio for assistance if [she] could not lift an animal." PSOF, Ex. 1 ¶ 8.
Plaintiff's argument obfuscates the distinction between reasonable accommodations and the essential functions of the ACO position. For instance, her assertion that "[t]he Town's police officers often perform the duties of the Animal Control Officer and assist the Animal Control Officer when she is on duty," Resp. (doc. # 24) at 12, purports to acknowledge that there are duties belonging to the ACO, while simultaneously sloughing off those responsibilities to the town's police officers. If the police officers were always required to provide the same level of assistance provided during the ACO's light-duty status, the essential functions of the ACO would have to be reassigned to the police officers. This is not a reasonable accommodation.See Rent A Ctr., 956 P.2d at 536.
In light-duty status, Plaintiff was allowed "to call an officer for assistance when loading large dogs or when a `chase' situation ar[ose]." DSOF, Ex. J.
(iii) Ankle Brace
Finally, Plaintiff claims that an ankle brace might constitute a reasonable accommodation, because Dr. Leonetti believed that she was entitled to a supportive care award for an ankle brace. Resp. (doc. # 24) at 12-13. In his testimony before the Industrial Commission of Arizona, Dr. Leonetti indicated that it would be an "excellent idea" for Plaintiff to receive a supportive care award for an ankle brace, "especially if she is going to try and be physically active." PSOF, Ex. 11 at 10-11. It will take far more than a reasonable inference to divine what Dr. Leonetti had in mind in terms of being "physically active." Evidence that is merely colorable or not significantly probative does not create a genuine issue of material fact. See Anderson, 477 U.S. at 248; Cal. Architectural Bldg. Prods., Inc., 818 F.2d at 1468. Because no reasonable juror could find that Plaintiff could actually run or traverse uneven terrain using an ankle brace, based on Dr. Leonetti's ambiguous reference to being "physically active," Plaintiff has failed to raise a triable issue of fact as to whether an ankle brace would constitute a reasonable accommodation. See Anderson, 477 U.S. at 248.
The Court finds that Plaintiff has failed to set forth specific facts demonstrating a genuine issue for trial regarding whether she could, with or without reasonable accommodation, perform the essential functions of the position of ACO. Summary judgment is appropriate "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. Based on the undisputed facts, reasonable jurors could not differ as to the conclusion that Plaintiff was not a "qualified individual with a disability." See 42 U.S.C. § 1211(8); 29 C.F.R. § 1630.2(m); Johnson, 251 F.3d at 1225; accord Ariz. Rev. Stat. § 41-1461(8) (West 2004). Therefore, summary judgment is appropriate on Plaintiff's ACRA and ADA claims.
2. Non-Discriminatory Reason for Adverse Employment Action
Defendant contends that summary judgment is also appropriate with respect to Plaintiff's ACRA and ADA claims, because Plaintiff cannot produce any evidence of pretext to discredit Defendant's legitimate, non-discriminatory reason for terminating her employment. Mot. (doc. # 20) at 6-8. Because summary judgment is appropriate on the basis that Plaintiff was not a "qualified individual with a disability," the Court need not address this argument.
IT IS THEREFORE ORDERED that Defendant's Motion to Strike Plaintiff's Affidavit (doc. # 27) is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment (doc. # 20) is GRANTED.
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in favor of Defendant and terminate this case.