Alfonso v. Community Bridges Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lisa Alfonso, No. CV-21-01305-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Community Bridges, Inc., 13 Defendant. 14 15 Lisa Alfonso (“Plaintiff”) began working for Community Bridges, Inc. (“CBI”) in 16 March 2020. In November 2020, Plaintiff began a leave of absence due to health issues. 17 In February 2021, CBI informed Plaintiff that her position had been eliminated and offered 18 her a temporary position, which she declined. Plaintiff, who is proceeding pro se, then 19 sued CBI for violating the Americans with Disabilities Act (“ADA”), among other claims. 20 Now pending before the Court is CBI’s renewed motion for summary judgment. 21 (Doc. 62.) For the following reasons, the motion is granted. 22 BACKGROUND 23 I. Preliminary Matters 24 In their motion papers, the parties present differing accounts of the events giving 25 rise to Plaintiff’s claims. The rule at summary judgment, of course, is that all legitimate 26 disputes of fact must be resolved in Plaintiff’s favor as the non-movant. Fresno Motors, 27 LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). 28 The analysis is complicated here, however, because some of the deficiencies in

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1 Plaintiff’s briefing that the Court identified in the earlier summary judgment order (Doc. 2 59 at 1-4) are still present. Consistent with Rule 56(c)(1), CBI’s motion includes a 3 statement of facts (Doc. 62 at 2-6) and is supported by a series of exhibits—which take the 4 form of declarations, deposition transcripts, documents, and emails—offered to 5 substantiate those factual assertions (Doc. 62-1). Unfortunately, although Plaintiff 6 occasionally indicates, in her summary judgment response, that she disagrees with certain 7 factual assertions by CBI (see, e.g., Doc. 65 at 4 [“Contrary to Defendant’s submission in 8 there [sic] (Exhibit 10)[,] Ms. Waller did responded [sic] to Plaintiff’s email . . . .”]), she 9 does not address many of CBI’s other factual assertions. Instead, Plaintiff offers a winding 10 narrative of various events that occurred before, during, and after her employment at CBI. 11 (Id. at 3-7.) 12 In a related vein, although Plaintiff attempts to substantiate some of her factual 13 assertions by citing the exhibits appended to her response brief, many of the factual 14 assertions appearing in her brief are bereft of citations to the record. During the last round 15 of summary judgment briefing, the Court explained that those unsupported factual 16 assertions had no evidentiary value because Plaintiff had not signed her brief under penalty 17 of perjury. (Doc. 59 at 2.) Plaintiff has now corrected that omission by signing her 18 response to CBI’s renewed summary judgment motion under penalty of perjury. (Doc. 65 19 at 11 [“Under penalty of perjury, I declare that I have read the foregoing, and the facts 20 alleged therein are true and correct to the best of my knowledge and belief.”].) 21 Accordingly, the factual assertions appearing in her second summary judgment brief—like 22 the factual assertions appearing in the EEOC charge she signed under penalty of perjury 23 (Doc. 59 at 2-3)—have evidentiary value at summary judgment. See, e.g., Jones v. Blanas, 24 393 F.3d 918, 923 (9th Cir. 2004) (“[B]ecause Jones is pro se, we must consider as 25 evidence in his opposition to summary judgment all of Jones’s contentions offered in 26 motions and pleadings, where such contentions are based on personal knowledge and set 27 forth facts that would be admissible in evidence, and where Jones attested under penalty of 28 perjury that the contents of the motions or pleadings are true and correct.”); Schroeder v.

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1 McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) (clarifying that the statement “the facts 2 stated in the complaint are true and correct as known to me” satisfies the requirement to 3 swear under penalty of perjury in 28 U.S.C. § 1746) (cleaned up). With that said, those 4 assertions must still be based on Plaintiff’s personal knowledge. Jones, 393 F.3d at 923. 5 Given this backdrop, CBI argues that because “Plaintiff did not dispute or otherwise 6 oppose any portion of Defendant’s Statement of Facts” and “Plaintiff’s Response is once 7 again filled with numerous assertions that are not supported by admissible evidence,” “all 8 of the facts set forth in Section I of [CBI’s] Motion for Summary Judgment must be 9 accepted as true for the purposes of [CBI’s] Motion” and “Plaintiff’s repeated violation of 10 Rule 56(c) should compel the entry of summary judgment under Rule 56(e)(3).” (Doc. 67 11 at 2, internal citation omitted.) 12 CBI made a similar argument during the last round of summary judgment briefing 13 and it remains flawed for the reasons previously stated. (Doc. 59 at 4.) Although Plaintiff 14 repeatedly violated Rule 56(c), either by not properly controverting CBI’s proffered facts 15 or by failing to identify evidence in the record to support her version of the facts, she did 16 comply with Rule 56(c) in some instances. Accordingly, the Court cannot simply accept 17 all of the facts in CBI’s motion and grant summary judgment on that basis. Instead, the 18 Court may treat as undisputed only the subset of facts in CBI’s motion that Plaintiff failed 19 to properly controvert. See Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly address 20 another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the 21 fact undisputed for purposes of the motion.”). Similarly, the Court cannot ignore all of the 22 factual assertions in Plaintiff’s brief. Instead, it must identify and credit the subset of the 23 factual assertions that have evidentiary value at summary judgment. See Fed. R. Civ. P. 24 56(c)(3) (“The court need consider only the cited materials, but it may consider other 25 materials in the record.”). The Court has followed this approach in Part II below, when 26 summarizing the relevant facts. 27 … 28 …

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1 II. Relevant Factual Background 2 In March 2020, CBI hired Plaintiff as an Associate Director of Housing and 3 Community Integration. (Doc. 1 at 9.) Plaintiff’s direct supervisor was Elizabeth DaCosta. 4 (Id. [referring to DaCosta as the Senior Director of Housing and Community Integration]; 5 Doc. 65 at 3.) During her interview for the position, Plaintiff informed CBI that she had 6 fatty liver disease and IBS. (Doc. 62-1 at 51.) 7 Upon being hired, Plaintiff opted to enroll in short-term disability (“STD”) 8 coverage. (Doc. 43-3; Doc. 44 at 18.) However, Plaintiff only made one premium payment 9 before her coverage was cancelled. (Doc. 43-3; Doc. 44 at 18.) The parties dispute why 10 the coverage was cancelled—Plaintiff claims it was a clerical error on CBI’s part (Doc. 65 11 at 3-4, 7), while CBI contends that Plaintiff declined coverage during open enrollment 12 (Doc. 43 at 2; Doc. 43-3 ¶¶ 8-10). This dispute is not material for summary judgment 13 purposes. 14 On October 1, 2020, Plaintiff emailed DaCosta about an event on September 30, 15 2020 that left Plaintiff “feeling very uncomfortable about the entire situation.” (Doc. 43-5 16 at 2.) Specifically, Plaintiff complained that she had been excluded from part of a meeting 17 in which one of her direct reports was terminated. (Id.)1 Plaintiff indicated that she would 18 be filing a “formal complaint,” “taking a mental health day today and tomorrow and 19 utilizing PTO,” and returning to work on October 12, 2020, after a “previously approved 20 vacation.” (Id. at 2-3.) 21 In a reply email, DaCosta stated that she had reached out to Jessica Waller, a CBI 22 human resources representative, who would be providing Plaintiff “with the formal 23 grievance form should [Plaintiff] chose [sic] to complete it.” (Doc. 43-6 at 2.)2 DaCosta 24 1 Plaintiff’s summary judgment brief includes a narrative relating to this terminated employee, whose “negligence on the job . . . lead [sic] to the death of a resident and infant 25 at the Center for Hope and ultimately the documented complaints of October 1, 2020.”

(Doc. 65 at 4, 8-9.) The Court has omitted the majority of the details related to this 26 narrative because they are not relevant to Plaintiff’s ADA claims. 27 2 Plaintiff disputes receiving DaCosta’s reply: “If you refer to [CBI’s] (Exhibit 5) you will see that no date/time stamp exists in Ms. DaCosta’s alleged response. Her response 28 was written into Plaintiff’s original email dated October 1, 2020.” (Doc. 65 at 4.) This dispute is not material for summary judgment purposes.

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1 also included her “account of the event” and assured Plaintiff that “I cannot express enough 2 how in no way were any parts of the conversation yesterday meant to make you feel as if 3 you were underperforming or should resign. I look forward to our continued work together, 4 sharing our strengths to further develop our staff and department.” (Id. at 2-4.) DaCosta 5 also confirmed Plaintiff’s plan to return to work on October 12, 2020. (Id. at 4.) 6 On October 15, 2020, Plaintiff and DaCosta “went to lunch to address [Plaintiff’s] 7 complaint.” (Doc. 1 at 11.) Plaintiff contends that, during the lunch, they discussed the 8 bracelet Plaintiff wore, its religious significance, and her identification as part of the IFA 9 faith. (Id.) 10 According to Plaintiff, over the following two weeks, DaCosta, who is Christian, 11 “hardly spoke” to her, “refused to be in the same room as” her, switched her work schedule, 12 and made comments about her role at CBI. (Id.) Plaintiff also contends that her “work cell 13 phone was hacked” during this period. (Id.) Plaintiff contends that this conduct caused 14 her to suffer “extreme emotional distress leading to an urgent care visit, multiple ER visits, 15 and now [she] currently sees seven different specialists for treatment.” (Id.) 16 On November 2, 2020, Plaintiff did not report for work. (Doc. 43-9 at 2 [November 17 4, 2020 email: “[A]ttached is my note from ER for Monday’s absence”].) 18 On November 3, 2020, Plaintiff emailed Melissa Metcalf, CBI’s human resources 19 generalist, and provided a doctor’s note excusing her from work between November 3, 20 2020 and November 10, 2020. (Id. at 3 [Metcalf, confirming receipt of the note].)3 Plaintiff 21 also confirmed receipt of the “formal grievance form” and notified Metcalf that she “will 22 be completing [it] once I am physically able to and upon release” from the emergency 23 room. (Id.) 24 On November 5, 2020, Plaintiff forwarded a copy of her October 1, 2020 email to 25 Teresa Steege, CBI’s human resources manager, explaining that she had “been enduring a 26 very serious medical concern on set [sic] by stress from [her] employment with CBI.” 27 28 3 This doctor’s note is not included in the record.

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1 (Doc. 44 at 20.)4 Plaintiff also relayed the allegations of her phone being hacked (id. at 2 22), a coworker receiving favoritism (id. at 22-23), and additional incidents with DaCosta 3 (id. at 23-25). Plaintiff concluded by explaining that her “only medical conditions are IBS 4 and fatty liver none of which is what I am dealing with now,” but “I have spent two days 5 in ER for high blood pressure and pre-stroke symptoms, multiple doctors appointments due 6 to the stressors from work” and “[s]ince I was not provided with the correct CBI formal 7 grievance form by Melissa[, p]lease accept this as my formal grievance, I will sign any 8 paperwork I have to upon my return to work.” (Id. at 24-25.) 9 On November 10, 2020, Waller emailed Plaintiff, with Metcalf copied, confirming 10 receipt of Plaintiff’s grievance and asking to set up a time to discuss. (Doc. 43-11 at 2.) 11 Plaintiff replied: “Unfortunately, I am unable to return to work at this time due to health 12 reasons. I spoke with [Metcalf] after my doctors appointment today and will be filing for 13 STD and a medical leave of absence.” (Id.) That same day, Waller responded: “I am sorry 14 to hear of your health struggles. We want you to focus on your recovery and we are happy 15 to talk about your grievance upon your return. . . . I am wishing you a speedy recovery.” 16 (Doc. 65 at 15.)5 17 Also on November 10, 2020, Plaintiff separately emailed Metcalf: 18 Unfortunately, my doctor has extended my return to work date due to the 19 current status of my health. I am unable to return to work at this time. She will be sending a note—that I can provide to you once received. In the 20 meantime, I would like to request a medical leave of absence and have 21 emailed benefits regarding my STD benefits.

22 (Doc. 62-1 at 14.) In a response email sent that same day, Metcalf provided Plaintiff with 23 “the medical leave of absence approval letter” and asked her to “read this letter and . . . 24 4 Plaintiff claims that “[a]lthough workplace stress from my employment with CBI 25 was expressed on multiple occasions[,] CBI failed to report [P]laintiff’s injury in writing to the [Industrial Commission of Arizona] within 10 days of my written notification as 26 required by law.” (Doc. 65 at 4.) 27 5 Plaintiff asserts that this fact is disputed: “Contrary to Defendant’s submission . . .

Ms. Waller did responded [sic] to Plaintiff’s email.” (Id. at 4.) This fact is not actually 28 disputed because CBI did not assert that Waller never responded to Plaintiff’s email; it just did not include the response in its exhibits.

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1 [l]et me know when you will be coming back to work since I will need to reactivate your 2 account. You can come back earlier from this leave of absence and if you require more 3 time out on a leave of absence, please let me know this as well.” (Id. at 17.) 4 Still on November 10, 2020, CBI approved Plaintiff’s medical leave of absence 5 (“MLOA”) retroactive from November 3, 2020 through December 3, 2020. (Doc. 43-7 at 6 2.) CBI informed Plaintiff that it would be an “unpaid leave of absence and may be granted 7 for up to 30 days.” (Id.) Plaintiff was also informed that “MLOA is not a job protected 8 leave.” (Id.) 9 On November 12, 2020, CBI notified Plaintiff that her STD benefits had been 10 cancelled. (Doc. 1 at 10.) 11 On November 17, 2020, Plaintiff provided DaCosta and Metcalf with a doctor’s 12 note excusing her absences from November 10, 2020 to November 24, 2020 because of 13 “illness or injury.” (Doc. 44 at 32, 37 [Stripes Primary Care doctor’s note].)6 Plaintiff also 14 informed Da Costa and Metcalf that she could return to work on November 25, 2020. (Id.) 15 On November 24, 2020, DaCosta responded that she was “glad to hear things have 16 improved” and that Plaintiff should “report to Cactus tomorrow. We will have you 17 continue the focus on CCHP [Comprehensive Community Health Program] for the 18 remainder of this week.” (Id.)7 Later that day, Plaintiff emailed Steege to report that she 19 had suffered a transient ischemic attack (“TIA”), also known as a mini-stroke, three weeks 20 earlier. (Doc. 44 at 33; Doc. 1 at 10.) Plaintiff also reported that she construed DaCosta’s 21 request to report to a new location (Cactus) as encouraging her to quit and part of a 22 continued pattern of harassment. (Doc. 44 at 33.) Plaintiff continued: “I do not think that 23 I can accommodate [DaCosta’s] request [to work in person daily at the Cactus location] 24 and I will be asking my doctor to re-evaluate my return to work based on this new 25 information tomorrow.” (Id.)8 26 6 In a January 2021 email to Plaintiff, Metcalf stated that she received this information on November 10, 2020. (Doc. 62-1 at 37-38.) This seeming date discrepancy is not 27 material to the analysis here.

7 28 CCHP is one of the CBI programs that Plaintiff oversaw. (Doc. 65 at 8.)

8 Plaintiff also informed Steege that she would “seek legal assistance in terms of my

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1 On November 25, 2020, instead of returning to work, Plaintiff “sent a note from 2 [her] primary care physician stating that [her] leave was being extended until December 3 15, 2020.” (Doc. 62-1 at 38 [Metcalf’s email describing receipt of the note].)9 That same 4 day, Metcalf reached out to Plaintiff: “We are aware that you may need a reasonable 5 accommodation when coming back to work. Can you please fill out the Application for 6 Reasonable Accommodation being specific on what you need as an accommodation? 7 Please have your physician fill out the medical inquiry form for a reasonable 8 accommodation as well.” (Doc. 44 at 36.) 9 On December 2, 2020, after receiving no response, Metcalf attempted to follow up 10 with Plaintiff about the reasonable accommodation form. (Id. at 35.) 11 On December 10, 2020, after receiving no response, Metcalf again attempted to 12 follow up with Plaintiff about the reasonable accommodation form. (Id.) That same day, 13 Plaintiff replied that she had submitted the reasonable accommodation form to her doctor 14 and had already provided CBI with a doctor’s note. (Doc. 62-1 at 26.) Later that same 15 day, Metcalf responded by again requesting additional information: 16 The note . . . from the doctor you sent was on 11/25/2020 and it only says 17 that you are under their care. Is there another note that is more specific that I did not get? We also need a specific accommodation request written in the 18 “Application for Reasonable Accommodation under the ADA” form 19 attached. We will also need the physician to fill out the “Medical Inquiry Form for Reasonable Accommodation” that is attached as well.

20 21 (Id. at 25-26.) Still later that same day, Plaintiff replied: 22 The ADA does not require employers to request medical information after 23 receiving a request for accommodation. An employer only has the right to know if I have a substantially limiting medical impairment. My PCP did not 24 complete the forms you attached as he extended my leave. This Monday 25 he/she will be reviewing all my specialist information to determine if I can;

1) return to work. 2) return to work with a request for accommodation. Or 26 3) if my leave will be extended based on information obtain from multiple 27 rights in Arizona and my benefits being cancelled without my consent as I need [to] utilize this resource.” (Id.)

28 9 This doctor’s note is not included in the record.

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1 specialist [sic]. I have enough to deal with and I’m unsure why you keep 2 harassing me during my medical leave regarding petty paperwork that is not a legal requirement. As always, I will keep my employer informed on 3 my return to work status, when that time comes at this point next week. 4 (Id. at 25, emphasis added.)

5 On December 11, 2020, Plaintiff was approved for a personal leave of absence 6 (“PLOA”) retroactive to December 4, 2020 through February 2, 2021. (Doc. 43-8 at 2;

7 Doc. 62-1 at 30 [“The PLOA is due to your medical leave of absence expiring on 12/3/2020 8 and you requiring more time out.”].) Again, Plaintiff was informed that “PLOA is not a 9 job protected leave.” (Doc. 43-8 at 2, emphasis omitted.)10 10 On December 15, 2020, Plaintiff “sent a note from [her] physician stating that [her]

11 leave would be extended until January 11, 2021.” (Doc. 62-1 at 38 [Metcalf’s email 12 describing receipt of the note].)11 13 On December 17, 2020, Metcalf emailed Plaintiff “to schedule a Microsoft Teams 14 meeting . . . to discuss the nature of your situation, so that CBI can determine the likelihood 15 that you will be able to return to work with or without a reasonable accommodation” and 16 proposed times on December 17, 2020 and December 21, 2020. (Id. at 33-34.) That same 17 day, Plaintiff replied that she was only available “on the 29th and 30th.” (Id. at 33.)

18 On December 18, 2020, Metcalf asked if they could meet on December 29, 2020 at 19 2:00 pm. (Id. at 32-33.)

20 On December 28, 2020, after receiving no response, Metcalf sent a follow-up email.

21 (Id. at 32.)

22 On January 4, 2021, Plaintiff, without acknowledging her disregard of Metcalf’s 23 earlier emails, replied: “As I informed you via my doctors note; I am scheduled to return 24 to work on January 12, 2021. I have a doctors appointment on January 11th to determine 25 my return to work status. I will continue to keep you informed of any updates and or 26 27 10 Plaintiff’s MLOA and PLOA were not job protected because, at the time she took the leave, she “had not been employed at CBI for more than 12 months.” (Doc. 43 at 3.)

28 11 This doctor’s note is not included in the record.

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1 changes.” (Id.) 2 On January 7, 2021, Metcalf sent a response email. (Id. at 37-38.) Among other 3 things, this email summarized the parties’ interactions since the start of Plaintiff’s medical 4 leave in November 2020. (Id.) Metcalf also reminded Plaintiff that: 5 As I have explained, CBI needs you to send a description of your possible 6 disability (i.e. the nature, severity, and duration of the possible disability), the activities that the possible disability limits, and the extent to which the 7 possible disability limits your ability to perform those activities. CBI needs 8 this information to engage with you in the interactive process under the [ADA], to verify the existence of a disability under the ADA, and to 9 determine the likelihood that you will be able to return to work with or 10 without a reasonable accommodation.

11 Please provide that information in the attached document[.] If you consent in that form, CBI can reach out to your physician to obtain the information 12 directly. Please provide this information by January 11, 2021, so that CBI 13 can determine whether to extend your unpaid leave based on your doctor’s appointment on January 11, 2021.

14 15 (Id. at 38-39.) 16 On January 11, 2021, Plaintiff sent a reply email. (Id. at 36-37.) First, Plaintiff 17 listed the doctors’ notes she had provided to CBI excusing her from work. (Id.) Then, 18 Plaintiff explained that “in late November, I wanted to return to work against my PCP 19 recommendations,” but because of the change in her job location to Cactus, the 20 “requirement of being in the office 5 days a week,” “my continuing symptoms, and the fact 21 that we had not received any blood work back[,] my PCP extended my leave and 22 recommended that my health be my priority. Those blood results prompted several new 23 appointments, specialist and procedures that had to be done and are still in process.” (Id. 24 at 37.) Plaintiff continued: 25 I took the ADA form to my provider and he stated this was a form I complete 26 but that at this time no definitive diagnosis has been made as he is coordinating my care with 7 additional providers. . . . Also, please be advised 27 that I sent a[n] email and certified letter to Najjian Amistoso cc Teresa Steege 28 requesting information on all my insurance policies and LTD [long term disability] information and only received back the LTD rider. I would like

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1 the policy information for my STD and additionally purchased Unum 2 insurance products as I am entitled to. If you could see to it that I get that information, it would be helpful in filling [sic] my claim. Lastly, regarding 3 the meeting request[,] CBI fails to understand that I am tending to my health and well being. In contrary to the organization’s mission of treating others 4 with human dignity and respect, I don’t feel this is being reciprocated to me 5 as an employee. 6 (Id., capitalization omitted.) Plaintiff also attached a new doctor’s note excusing her from 7 work until February 2, 2021. (Id.)12 8 That same day, Plaintiff submitted her “Application for Reasonable 9 Accommodation.” (Doc. 44 at 38-40.) In response to the prompt asking how to modify 10 her “job duties or work environment,” Plaintiff wrote: “I am currently under the care of 11 several specialist[s] with my PCP as coordinator. At this time my PCP does not release 12 me to return to work.” (Id. at 38.) When asked to “[d]escribe the essential functions of 13 your job that you are unable to perform based upon your disability,” Plaintiff wrote 14 “unknown at this time.” (Id. at 39.) When asked to describe the “[n]ature of your disability 15 (include[] or attach any information that will help us understand the nature of your 16 disability and the limits it places upon your ability to perform the essential functions of 17 your current job),” Plaintiff wrote: “diagnosis in process (cardiovascular disease, Diabetes, 18 CNS [central nervous system] disease, fatty liver & IBS).” (Id.) Plaintiff also declined to 19 grant CBI access to her medical records. (Id.) Finally, when asked to indicate the duration 20 of the reasonable accommodation, Plaintiff wrote “unknown.” (Id. at 40.)

21 On January 12, 2021, Metcalf directed Plaintiff “to reach out to [email redacted] to 22 get the information that you need for your [STD]” and asked if she “[had] an update on 23 [her] return back” to work. (Doc. 62-1 at 36.) Plaintiff replied the next day: “[I]f I have 24 any updates, I will let you know on January 22, 2021.” (Id.)13 25 On February 2, 2021, Plaintiff informed CBI that she would return to work on 26 12 This doctor’s note is not included in the record.

27 13 In Plaintiff’s EEOC complaint, she asserted that “[o]n January 20, 2021, [Plaintiff]

28 emailed the Employee Benefits Specialist to follow up regarding her previous request for short-term disability and additional insurance policy information.” (Doc. 1 at 10.)

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1 February 3, 2021. (Doc. 1 at 10.) 2 Later that day, during a call with CBI’s human resources department, Plaintiff was 3 told that she “would not be required to return to work and instead would have a discussion 4 [with human resources] via [T]eams on Wednesday, February 3, 2021.” (Doc. 62-1 at 69.) 5 During this same call, CBI informed Plaintiff that her position had been eliminated. (Doc. 6 1 at 10.) There was no discussion of Plaintiff’s grievance. (Id.) As of February 2, 2021, 7 Plaintiff had been on leave since November 2, 2021. (Doc. 62-1 at 71.)14 8 On February 3, 2021, Plaintiff had a virtual meeting with Metcalf and Steege. (Doc. 9 44 at 47.) CBI offered Plaintiff an alternative job in an “Access to Care” position “that 10 [she] could work at while looking for another internal position.” (Id.) Metcalf described 11 the job as “answering external phone calls from patients and clients who need help or may 12 have questions regarding the services CBI offers. This is considered light duty as it is just 13 answering phone calls and typing on the computer.” (Id.) Metcalf also noted that “CBI 14 will pay you the same rate you were at while working temporarily [in the Access to Care 15 position].” (Id.) According to CBI’s official job description, the Access to Care position 16 is generally suited for people currently in recovery and only requires a high school diploma 17 or general educational development (“GED”) degree. (Id. at 44-45.) 18 On February 5, 2021, Plaintiff declined the position, stating in relevant part: 19 CBI has failed to reinstate my employment after an approved [MLOA], by 20 stating that I could not return to work until we had a conversation. The position being offered to me is a demotion and in no way comparable to the 21 position I held prior to my leave. Lastly, the requirement of having me 22 reapply for any position within the organization is egregious. I am declining the position being offered by CBI as a call representative for the 800 access 23 to care hotline as stated for only 30 days. In no way is this position 24 acceptable given the significant financial impact this will have on me and there are certainly other like positions available—not to mention I am able to 25 26 14 Plaintiff asserts she was “on medical leave since November 2, 2020” (Doc. 62-1 at 36), whereas CBI asserts that “Plaintiff took her first medical leave of absence on 27 November 3, 2020” (Doc. 62 at 2). This distinction is not relevant for summary judgment purposes—although Plaintiff did not attend work on November 2, 2020 (Doc. 43-9 at 2 28 [doctor’s note excusing Plaintiff’s absence on November 2, 2020]), her MLOA did not officially begin until November 3, 2020 (Doc. 43-7 at 2).

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1 do my current position. This is clearly ongoing discrimination/retaliation. 2 (Doc. 62-1 at 69.)15 3 In April 2021, the Arizona Department of Economic Security (“DES”) denied 4 Plaintiff’s application for unemployment benefits because she “did not provide proper 5 notice to [her] employer of [her] absence from work.” (Doc. 44 at 53.)16 6 CBI contends the elimination of Plaintiff’s position was the result of a business 7 restructuring, under the direction of new executive leadership, that began no later than 8 September 2020. (Doc. 43-12 ¶ 7 [“The restructuring process for the [Housing and 9 Community Integration] Department began no later than September of 2020, before 10 Plaintiff ever complained to CBI about any alleged violations under Title VII or the 11 [ADA].”]; id. ¶ 4 [“CBI did not assign or hire anyone to fill Plaintiff’s position. Rather, 12 CBI merged Plaintiff’s duties into another position in a different department at CBI with 13 someone who already had oversight over Medicaid-funded programs.”]; Doc. 62-1 at 60 14 [November 2, 2020 email: “Effective 11/15/2020, the SMI PSH [Seriously Mentally Ill 15 Permanent Supportive Housing] program will be transitioning from the Housing and 16 Community Integration leadership to the SMI program”]; id. at 62 [December 9, 2020 17 email: “Effective 12/21/2020 the CCHP program will transition from the Housing and 18 Community Integration leadership to the Clinical program”].) However, on October 1, 19 2021, Plaintiff discovered that CBI was using Indeed.com to solicit applicants for the 20 position of “Associate Director of Housing & Community Integration,” which is Plaintiff’s 21 former job title. (Doc. 44 at 55-56.)

22 III. Procedural History 23 On March 3, 2021, Plaintiff filed a charge of discrimination with the EEOC, 24 checking boxes to indicate that she had suffered discrimination on the basis of national 25 origin, retaliation, and disability. (Doc. 1 at 9-12.)

26 15 On February 25, 2021, CBI offered Plaintiff “2 weeks severance.” (Doc. 44 at 51.)

27 16 In her response brief, Plaintiff asserts that she successfully appealed the denial and 28 was “awarded 14 weeks of unemployment benefits at a rate of $240 per week.” (Doc. 65 at 7.)

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1 On May 5, 2021, the EEOC issued Plaintiff a “Notice of Right to Sue.” (Id. at 14.) 2 On July 28, 2021, Plaintiff initiated this action by filing the complaint, which 3 included both the EEOC charge and the right-to-sue letter as attachments. (Doc. 1.) In her 4 complaint, using pre-printed check boxes, Plaintiff identified her claims as falling under 5 Title VII and the ADA. (Id. at 3.) Using other pre-printed checkboxes, Plaintiff alleged 6 three categories of discriminatory conduct: termination, failure to accommodate her 7 disability, and retaliation. (Id. at 4.) Using still other pre-printed checkboxes, Plaintiff 8 alleged that CBI had discriminated against her based on her race, religion, national origin, 9 and disability. (Id.) 10 On November 21, 2022, CBI filed a motion for summary judgment. (Doc. 43.) That 11 motion later became fully briefed. (Docs. 44, 47.) 12 On August 2, 2023, the Court granted CBI’s motion for summary judgment on all 13 but two of Plaintiff’s claims. (Doc. 59.) First, the Court granted CBI’s motion for summary 14 judgment on Plaintiff’s claim of racial discrimination under Title VII because “Plaintiff 15 did not identify herself as non-white” and “[e]ven construed with the utmost liberality, 16 Plaintiff’s EEOC charge was insufficient to exhaust any claim of race discrimination under 17 Title VII.” (Id. at 15.) 18 Second, the Court concluded that CBI was not entitled to summary judgment on 19 Plaintiff’s two claims for disability discrimination in violation of the ADA—termination 20 because of a disability and failure to accommodate. (Id. at 18-29.) As for the termination 21 claim, the Court concluded that “Plaintiff has met her prima facie burden” because viewing 22 the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that 23 CBI regarded her as disabled and that she suffered an adverse employment action—CBI 24 eliminating her position and effectively terminating her—because of her disability given 25 the temporal proximity between CBI learning of Plaintiff’s disability and her termination. 26 (Id. at 20-25, emphasis omitted.) Then, applying the McDonnell Douglas burden-shifting 27 framework, the Court concluded that (1) “CBI has met its burden of production” to show 28 a non-discriminatory explanation for eliminating Plaintiff’s position, by offering evidence

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1 that it resulted from business restructuring “already underway before Plaintiff sent her 2 October 1, 2020 email or made any of the other relevant disclosures”; but (2) “[v]iewing 3 the evidence in the light most favorable to Plaintiff, there is a genuine dispute of material 4 fact as to whether CBI’s proffered reason for terminating Plaintiff (i.e., her position was 5 eliminated as part of a business restructuring) is pretextual.” (Id. at 25-27, cleaned up.) As 6 for the failure to accommodate claim, the Court interpreted “CBI’s motion as challenging 7 only whether Plaintiff made a disclosure of the nature of her impairment” and determined 8 that “a reasonable juror could conclude that she did.” (Id. at 28-29.) The Court 9 acknowledged “the limited nature of the conclusion being reached” and that “CBI may 10 very well prevail on” an alternative ground for summary judgment at a later stage. (Id.) 11 Third, the Court granted CBI’s request for summary judgment on Plaintiff’s claim 12 of religious discrimination under Title VII because “Plaintiff lacks evidence of an adverse 13 employment action in relation to that claim” other than, potentially, her termination, which 14 was too temporally attenuated from the alleged act of religious discrimination to create an 15 inference of causation. (Id. at 29-32.) 16 Fourth, the Court granted CBI’s request for summary judgment on Plaintiff’s claim 17 of national-origin discrimination under Title VII because “Plaintiff has made no attempt to 18 factually identify what adverse action was taken in relation to her national origin or show 19 that the action was taken because of her national origin.” (Id. at 32-33, footnote omitted.) 20 Fifth, the Court granted “CBI’s request for summary judgment as to any hostile 21 work environment claim” because (1) Plaintiff “overwhelmingly focuses on the behavior 22 of her terminated subordinate” and “the terminated subordinate’s behavior is not properly 23 before the Court because it went unexhausted before the EEOC and is not factually 24 supported here”; (2) “[a]s for the conduct of DaCosta, even under a liberal construction of 25 Plaintiff’s briefing, together with the theories put forward in her EEOC charge and her 26 complaint, Plaintiff has neither alleged nor demonstrated that DaCosta’s conduct was 27 sufficiently severe or pervasive to alter the conditions of Plaintiff’s employment and create 28 an abusive work environment”; and (3) “Plaintiff has not articulated how DaCosta’s

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1 statements relate to a protected characteristic.” (Id. at 33-35, cleaned up.) 2 Sixth, the Court concluded that Plaintiff could not establish a prima facie case of 3 retaliation under Title VII because she did not engage in a protected activity—“the actual 4 conduct Plaintiff described in [her October 1, 2020 email] is unrelated to any ‘unlawful 5 employment practice’ prohibited by Title VII [so] . . . the [email] could not have qualified 6 as a protected activity.” (Id. at 35-37.)17 7 Seventh, the Court concluded that, because “the only remaining claims in this case 8 are Plaintiff’s ADA claims (termination and failure to provide a reasonable 9 accommodation),” and “[s]uch claims may only be brought against CBI and may not be 10 brought against individual supervisors such as DaCosta,” “Plaintiff was not required, under 11 Iqbal, to meet some additional ‘vicarious liability’ pleading hurdle before being allowed to 12 assert such claims against CBI . . . [and] it does not appear that the Ellerth/Faragher 13 defense applies to such claims, which are not premised on the existence of a hostile work 14 environment and turn, at least in part, on Plaintiff’s contention that she was subjected to 15 tangible employment actions.” (Id. at 38-40, citations omitted.) 16 Finally, because “Plaintiff’s claims and evidence have proved to be a bit of a moving 17 target, which greatly complicated CBI’s task of establishing an entitlement to relief under 18 Rule 56,” the Court authorized CBI to file a renewed motion for summary judgment as to 19 Plaintiff’s remaining ADA claims. (Id. at 40-41.) 20 On August 24, 2023, CBI filed the pending renewed motion for summary judgment. 21 (Doc. 62.) 22 On October 5, 2023, CBI filed a motion for summary disposition. (Doc. 63.) CBI 23 sought summary disposition “because Plaintiff failed to file a response by her deadline of 24 September 28, 2023.” (Id. at 1.) 25 On October 10, 2023, Plaintiff filed a response to the summary judgment motion. 26 (Doc. 65.) Plaintiff disputed whether she had been properly served with the motion. (Id. 27 28 17 The Court also acknowledged that “[a]lthough it is possible to assert a retaliation claim under the ADA, Plaintiff has not asserted one here.” (Id. at 37 n.17.)

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1 at 1-2.) 2 On October 11, 2023, the Court denied CBI’s motion for summary disposition. 3 (Doc. 64.) The Court noted that “summary judgment cannot be granted by default even if 4 there is a complete failure to respond to the motion. . . . Instead, in the summary judgment 5 context, the opposing party’s failure to respond to a fact asserted in a summary judgment 6 motion merely permits a court to consider the fact undisputed for purposes of the motion.” 7 (Id. at 1, cleaned up.) 8 Later that same day, the Court noted that “Plaintiff has submitted a response to the 9 motion for summary disposition, which was not docketed or viewed by the Court until after 10 the Court denied the motion for summary disposition. The response is construed as a 11 request for an extension of time to respond to Defendant’s motion for summary judgment 12 and a proposed response to that motion. This request is granted.” (Doc. 66, internal 13 citations omitted.) 14 The renewed motion for summary judgment is now fully briefed. (Docs. 65, 67.)18 15 DISCUSSION 16 I. Legal Standard 17 “The court shall grant summary judgment if [a] movant shows that there is no 18 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 19 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 20 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 21 in the non-movant’s favor.” Fresno Motors, 771 F.3d at 1125. The court “must view the 22 evidence in the light most favorable to the nonmoving party and draw all reasonable 23 inference in the nonmoving party’s favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 24 (9th Cir. 2018). “Summary judgment is improper where divergent ultimate inferences may 25 reasonably be drawn from the undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal 26 quotation marks omitted). 27 28 18 CBI’s request for oral argument is denied because the issues are fully briefed and oral argument will not aid the decisional process. See LRCiv 7.2(f).

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1 A party moving for summary judgment “bears the initial responsibility of informing 2 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 3 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 4 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 5 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 6 production, the moving party must either produce evidence negating an essential element 7 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 8 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 9 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 10 [the] moving party carries its burden of production, the nonmoving party must produce 11 evidence to support its claim or defense.” Id. at 1103. 12 “If the nonmoving party fails to produce enough evidence to create a genuine issue 13 of material fact, the moving party wins the motion for summary judgment.” Id. There is 14 no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 15 Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not 16 significantly probative, summary judgment may be granted.” Id. at 249-50 (internal 17 citations omitted). At the same time, “[t]he evidence of the non-movant is to be believed, 18 and all justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]n ruling on a 19 motion for summary judgment, the judge must view the evidence presented through the 20 prism of the substantive evidentiary burden.” Id. at 254. Thus, “the trial judge’s summary 21 judgment inquiry as to whether a genuine issue exists will be whether the evidence 22 presented is such that a jury applying that evidentiary standard could reasonably find for 23 either the plaintiff or the defendant.” Id. at 255. 24 Although Plaintiff is pro se, “litigants in the ordinary civil case should not be treated 25 more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 26 1364 (9th Cir. 1986). “The Ninth Circuit directs courts ‘to make reasonable allowances 27 for pro se litigants and to read pro se papers liberally.’” Wilson v. JPMorgan Chase, N.A., 28 2020 WL 6262106, *2 (W.D. Wash. 2020) (quoting McCabe v. Arave, 827 F.2d 634, 640

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1 n.6 (9th Cir. 1987)). However, “district courts lack ‘the power to act as a party’s lawyer, 2 even for pro se litigants.’” Id. (quoting Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 3 2007)). See also Bias, 508 F.3d at 1219 (“[Plaintiff] maintains . . . that as a pro se litigant 4 the district court should have searched the entire record to discover whether there was any 5 evidence that supports her claims. We disagree. A district court does not have a duty to 6 search for evidence that would create a factual dispute.”). 7 II. The Americans With Disabilities Act 8 “To state a prima facie case under the ADA, [a plaintiff] must show (1) that she is 9 disabled within the meaning of the ADA; (2) that she is a qualified individual with a 10 disability; and (3) that she was discriminated against because of her disability.” Smith v. 11 Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013). 12 A. Disabled Within The Meaning Of The ADA 13 1. The Parties’ Arguments 14 CBI argues that Plaintiff cannot establish she was disabled under the ADA. (Doc. 15 62 at 7-11.) First, CBI argues that Plaintiff cannot show that she had an impairment that 16 substantially limited a major life activity because (1) “during her deposition in this matter, 17 Plaintiff repeatedly dodged questions and failed to identify what her disability is/was”; and 18 (2) “she failed to provide CBI with any medical records or medical expert opinions 19 specifically identifying and/or describing her disability and specifically explaining how 20 any such limitation impacted her ability to perform her job.” (Id. at 8-9.) Second, CBI 21 makes a similar argument in the section of its brief entitled “Plaintiff Cannot Establish a 22 ‘Record of Impairment,’” asserting that “Plaintiff cannot show a ‘record of impairment’ 23 because she repeatedly failed to provide CBI with information to show that her purported 24 medical conditions ‘substantially limited’ one or more major life activities.” (Id. at 9.) 25 Third, CBI argues that because “there is no evidence that CBI had sufficient information 26 about Plaintiff’s purported medical conditions to form a correct (or even mistaken) 27 perception that Plaintiff was actually disabled under the ADA” and “[b]ecause Plaintiff 28 failed to explain how her purported medical conditions ‘substantially limited’ her major

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1 life activities, there is no factual basis for Plaintiff to establish that CBI could have ever 2 ‘regarded her’ as having an actual impairment under the ADA.” (Id. at 9-10.) 3 In response, Plaintiff asserts that she “notified CBI of her fatty liver disease and IBS 4 at her interview, notified CBI of her TIA mini-stroke, hbp-high blood pressure, type II 5 diabetes, CNS disease and on-going testing and medical appointments to her PCP, 6 neurologist and GI specialists during her multiple phone conversations with Melissa 7 Metcalf (HR).” (Doc. 65 at 5.) Plaintiff also asserts that, “[i]n contrast to Defendant’s 8 counsel suggesting that Plaintiff during her deposition admitted to not having any medical 9 issues[,] Plaintiff has undergone continuous medical evaluations and medical diagnosis for 10 the past three years since the medical episode that occurred at CBI on October 30, 2020 as 11 the precursor.” (Id. at 9.) 12 In reply, CBI contends that “Plaintiff has not offered any admissible evidence to 13 meet any of [the] three possible definitions” of disability under the ADA. (Doc. 67 at 3.) 14 CBI then elaborates upon some of the arguments raised in its motion. (Id. at 3-4.) 15 2. Analysis 16 Under the ADA, “disability” is defined as “(A) a physical or mental impairment that 17 substantially limits one or more major life activities of such individual; (B) a record of such 18 an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. 19 § 12102(1). “[A] person need fit only one of the three definitions to be disabled for the 20 purposes of the ADA.” Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1153 (9th Cir. 21 1997). Because, as discussed below, the Court concludes that Plaintiff has come forward 22 with sufficient evidence to create a genuine issue of fact as to the third definition, it is 23 unnecessary to address the other two definitions. 24 One of CBI’s arguments concerning the “regarded as” prong is that “[b]ecause 25 Plaintiff failed to explain how her purported medical conditions ‘substantially limited’ her 26 major life activities, there is no factual basis for Plaintiff to establish that CBI could have 27 ever ‘regarded her’ as having an actual impairment under the ADA.” (Doc. 62 at 10.) The 28 problem with this argument is that it is premised on the pre-2008 version of the ADA.

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1 EEOC v. BNSF Ry. Co., 902 F.3d 916, 922 (9th Cir. 2018) (describing the pre-2008 version 2 of the ADA as requiring that “an impairment had to substantially limit a major life activity 3 for the discrimination to be actionable under the ‘regarded as’ prong”). The 2008 4 amendments to the ADA lowered the standard for qualifying as disabled under the 5 “regarded as” prong: 6 An individual meets the requirement of “being regarded as having such an 7 impairment” if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived 8 physical or mental impairment whether or not the impairment limits or is 9 perceived to limit a major life activity.

10 42 U.S.C. § 12102(3)(A). See also BNSF Ry. Co., 902 F.3d at 924 (“The ADA no longer 11 requires a showing of a substantially limiting impairment, following the 2008 enactment 12 of the ADAAA.”). “In regarded-as cases, thus, a plaintiff must show that the employer 13 knew that the employee had an actual impairment or perceived the employee to have an 14 impairment, and that the impairment was not transitory or minor.” BNSF Ry. Co., 902 F.3d 15 at 923. See also Nunies v. HIE Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018) (defining 16 transitory as “expected to last six months or less”). 17 CBI also contends it could not have regarded Plaintiff as disabled because she 18 “merely listed a few medical conditions in her Request for Accommodation,” “never 19 provided CBI with any information about the nature, severity, or anticipated duration of 20 those conditions,” “continually refused to provide CBI with details about her conditions,” 21 “never actually requested any specific accommodation,” “completely failed to indicate 22 what aspects of her job she was unable to perform,” and suggested that “her own doctors 23 . . . did not yet know whether she was disabled.” (Doc. 62 at 9-10.) Although these 24 arguments present a close call, a reasonable jury could still conclude—when all reasonable 25 inferences are resolved in Plaintiff’s favor—that CBI regarded her as having an 26 impairment. On multiple occasions over a span of 11 months, Plaintiff stated or intimated 27 to CBI that she had fatty liver disease, IBS, cardiovascular disease, diabetes, CNS disease, 28 and/or a TIA/mini-stroke. (Doc. 62-1 at 51 [“I do have fatty liver. I had that prior. I had

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1 IBS prior. And CBI was aware of that because that was listed in my interview 2 documents.”]; Doc. 44 at 24 [November 5, 2020 email: “I have spent two days in ER for 3 high blood pressure and pre-stroke symptoms”]; id. at 33 [November 24, 2020 email: “I 4 had a TIA/mini-stroke and I’m only three weeks out”]; id. at 38-39 [January 11, 2021 5 reasonable accommodation request, claiming “diagnosis in process” for “cardiovascular 6 disease, Diabetes, CNS disease, fatty liver & IBS”].)19 CBI was also aware that Plaintiff 7 needed to take an extended medical leave because of her claimed health issues. (Doc. 43- 8 11 at 2 [November 10, 2020 email: “I am unable to return to work at this time due to health 9 reasons”]; Doc. 62-1 at 14 [November 10, 2020 email: “I would like to request a medical 10 leave of absence . . . .”]; id. at 71 [Plaintiff did not work from November 2, 2020 through 11 February 2, 2021]; id. at 38 [email from Metcalf: “[Y]ou informed your supervisor that you 12 were unable to [return to work] because of the distance you would have to drive”].) 13 Additionally, members of CBI’s human resources department expressed sympathy to 14 Plaintiff regarding her “health struggles.” (See, e.g., Doc. 65 at 15 [Waller: “I am sorry to 15 hear of your health struggles. We want you to focus on your recovery . . . . I am wishing 16 you a speedy recovery”].) The Ninth Circuit has stated that these sorts of details are 17 sufficient to create a genuine issue of fact at summary judgment in “regarded as” cases. 18 Baker v. Roman Cath. Archdiocese of San Diego, 725 F. App’x 531, 532 (9th Cir. 2018) 19 (“Here, there is evidence in the summary judgment record that the principal Michael Deely: 20 (1) knew that Baker had suffered a concussion at the end of August, because she had told 21 him via email; (2) knew that Baker continued to suffer from dizziness and headaches after 22 19 It should be noted that Plaintiff’s statements to CBI concerning her claimed 23 impairments were not always consistent. For example, on November 5, 2020, Plaintiff stated in an email to CBI that her “only medical conditions are IBS and fatty liver none of 24 which is what I am dealing with now.” (Doc. 44 at 20-25.) Similarly, during her deposition in this case, Plaintiff conceded that her fatty liver disease and IBS were “pretty much 25 controlled” when she worked for CBI. (Doc. 62-1 at 54.) And in her response brief, Plaintiff asserts that “[p]rior to the medical treatment sought [on] October 30, 2020 and 26 thereafter Plaintiff had no previous medical history nor been diagnosed with high blood pressure or type II diabetes.” (Doc. 65 at 8.) Nevertheless, when all factual disputes are 27 resolved in Plaintiff’s favor, and in light of the post-2008 rule that an employer can still regard an employee as impaired even if the impairment does not substantially limit major 28 life activities, BNSF Ry. Co., 902 F.3d at 924, a reasonable juror could still find that Plaintiff repeatedly disclosed the existence of impairments to CBI.

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1 the concussion, because Baker said she told him that when she ran into him every week or 2 two; (3) was concerned about Baker’s health immediately after the concussion, because he 3 expressed that concern to her; and (4) according to both Baker and Deely, asked about 4 Baker’s health when he saw her from time to time. This evidence could be interpreted by 5 a jury as demonstrating that Deely ‘regarded’ Baker as having post-concussion headaches 6 and dizziness throughout the relevant time period.”). 7 Further evidence supporting Plaintiff’s position is that CBI repeatedly 8 accommodated her claimed impairments by granting her MLOA and PLOA for her health 9 issues. (Doc. 43-7 at 2 [MLOA]; Doc. 43-8 at 2 [PLOA].) Plaintiff also requested 10 information on and/or paid for disability benefits, like STD, LTD, and insurance with 11 Unum. (Doc. 43-3 at 2 [“CBI withdrew only one payment for short-term disability from 12 Plaintiff’s paychecks.”]; Doc. 62-1 at 37 [reference to LTD benefits]; id. [reference to 13 Plaintiff’s Unum insurance].) Although providing such accommodations alone cannot 14 create a genuine dispute of fact as to whether CBI regarded Plaintiff as having an 15 impairment, Tsuji v. Kamehameha Sch., 154 F. Supp. 3d 964, 975 n.10 (D. Haw. 2015), 16 aff’d, 678 F. App’x 552 (9th Cir. 2017), they add further support when considered together 17 with the evidence discussed above. 18 The lack of medical documentation supporting Plaintiff’s claimed impairments and 19 CBI’s unfulfilled requests for medical documentation do not undermine that conclusion. 20 To be clear, a lack of medical documentation may undermine a “regarded as” claim under 21 some circumstances. See, e.g., Sutter v. Shriners Hosps. For Child., 2023 WL 5275496, 22 *5 (D. Or. 2023) (“Here, the record at most supports a finding that Defendant Shriners was 23 trying to understand Plaintiff’s stress surrounding the performance of her duties. It does 24 not support a finding that Defendant regarded Plaintiff as disabled. Plaintiff’s doctor’s 25 notes stated that she suffered stress and anxiety from performing her payroll duties. They 26 do not state that she was disabled or that she had an underlying condition that caused stress 27 and anxiety or made her more susceptible to stress and anxiety. There is no evidence that 28 Plaintiff informed Defendant of any such condition or that Defendant otherwise perceived

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1 such a condition. There is no evidence that Plaintiff did more than present the doctor’s 2 notes and tell Defendant that she wanted to be removed from payroll duties. Defendant 3 then discussed this with her. Holding a conversation about ways to manage work-related 4 stress and anxiety and considering possible accommodations is not, on its own, enough to 5 support the inference that Defendant viewed Plaintiff as disabled.”); Heit v. Aerotek Inc., 6 2016 WL 6298771, *4 (W.D. Wash. 2016), aff’d, 726 F. App’x 658 (9th Cir. 2018) (“[T]he 7 record does not support a finding that Aerotek regarded or perceived Mr. Heit as having 8 paruresis. Quite the opposite, in fact, as it requested further documentation from Mr. Heit 9 in order to establish his alleged disability. Without more, Mr. Heit’s claim that he has ‘shy 10 bladder syndrome’ amounts to self-diagnosis, and is insufficient as a matter of law for his 11 claim to go forward under the ADA or WLAD.”). Nevertheless, as noted, the Ninth Circuit 12 has concluded that a plaintiff may survive summary judgment under a “regarded as” theory 13 even if, as here, the employer was not provided with medical documentation of the claimed 14 impairment. Baker, 725 F. App’x at 532-33 (reversing grant of summary judgment where 15 plaintiff’s subjective complaints of symptoms, coupled with expression of concern and 16 sympathy from the employer, raised “a triable dispute as to whether RCBSD regarded 17 Baker as disabled”). 18 B. Discrimination Because Of A Disability 19 As noted, the third element of an ADA claim is that the plaintiff “was discriminated 20 against because of her disability.” Smith, 727 F.3d at 955.20 Plaintiff asserts two theories 21 of discrimination here: (1) unlawful termination; and (2) failure to accommodate. 22 1. Termination 23 a. The Parties’ Arguments 24 As a threshold matter, CBI argues that it “did not terminate Plaintiff’s employment. 25 Instead, Plaintiff resigned.” (Doc. 62 at 6.) Alternatively, CBI argues that “[b]ecause CBI 26 27 20 The second element of an ADA claim is that the plaintiff “is a qualified individual with a disability.” Id. Because CBI does not move for summary judgment on that element, 28 instead choosing to focus on the first and third elements, the Court follows the same approach here.

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1 never perceived Plaintiff as actually disabled, CBI’s decision to eliminate her position 2 could not have been motivated by disability discrimination.” (Id. at 11.) Further 3 alternatively, CBI argues that even if it perceived Plaintiff as disabled, “Plaintiff’s only 4 proffered evidence of discriminatory animus is the alleged temporal proximity between the 5 time she claims she put CBI on notice of a disability on October 31, 2020, and the date that 6 her position was eliminated on February 2, 2021” and “no reasonable juror could find that 7 CBI discriminated against Plaintiff based on temporal proximity alone, particularly when 8 the gap . . . was more than two months.” (Id. at 11-12, cleaned up.) CBI also argues 9 Plaintiff cannot establish causation because “Plaintiff admitted during her deposition that 10 at least two of the conditions she listed on her Request for Accommodation were disclosed 11 to CBI at the outset of her employment in March of 2020,” meaning “almost an entire year 12 passed between the date that Plaintiff first informed CBI about at least two of her purported 13 medical conditions and the date that her position was eliminated.” (Id. at 12.)21 14 In response, Plaintiff asserts that “CBI took an adverse employment action against 15 [her] due to her perceived physical and/or mental impairment.” (Doc. 65 at 6.) Elsewhere, 16 Plaintiff adds: “Plaintiffs [sic] disability led to an adverse employment action as . . . per 17 [CBI’s] own submission to the State of Arizona Unemployment [that CBI] terminated 18 Plaintiff due to excessive absenteeism during the approved medical/personal leave.” (Id. 19 at 9.) 20 In reply, CBI essentially reiterates some of the arguments from the renewed motion 21 for summary judgment, specifically that (1) because CBI did not perceive Plaintiff as 22 disabled, CBI did not terminate her because of her disability; and (2) even if CBI did 23 perceive Plaintiff as disabled, the timeframe between CBI first receiving notice of 24 Plaintiff’s disability in March 2020 and her termination in February 2021 was too long to 25 support an inference of causation. (Doc. 67 at 6-7.) 26 21 27 CBI also offers arguments regarding the issues of a non-discriminatory explanation and pretext (id. at 13-14), and Plaintiff offers counterarguments as to those issues (Doc. 65 28 at 8, 10). It is unnecessary to reach those issues here in light of CBI’s entitlement to summary judgment on other grounds.

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1 b. Analysis 2 The Court already addressed and rejected CBI’s threshold argument, that Plaintiff 3 was not terminated and thus did not suffer an adverse employment action, in the earlier 4 summary judgment order. (Doc. 59 at 22, citation omitted [“Plaintiff has proffered 5 sufficient evidence of an adverse employment action. . . . CBI’s elimination of Plaintiff’s 6 position and offer of a less desirable replacement position (which Plaintiff chose to reject 7 due to its undesirability) qualifies as an adverse action.”].)22 8 Turning to the issue of causation, it is not enough to show “that a disability was a 9 motivating factor of the adverse employment action.” Murray v. Mayo Clinic, 934 F.3d 10 1105 (9th Cir. 2019). Instead, “ADA discrimination claims under Title I must be evaluated 11 under a but-for causation standard.” Id. at 1107. 12 Here, there is no direct evidence that CBI’s decision to eliminate Plaintiff’s 13 position—and, thus, effectively terminate Plaintiff—was motivated by Plaintiff’s disability 14 (actual or perceived). “Direct evidence is evidence which, if believed, proves the fact of 15 discriminatory animus without inference or presumption.” Aragon v. Republic Silver State 16 Disposal Inc., 292 F.3d 654, 662 (9th Cir. 2002), as amended (July 18, 2002) (cleaned up). 17 Here, both sides’ contemporaneous notes reflect that CBI did not indicate that Plaintiff’s 18 health conditions or health-related absenteeism had anything to do with CBI’s challenged 19 employment actions. Rather, CBI simply told Plaintiff that her old position had been 20 eliminated and then offered her a different position, which she refused. (Doc. 62-1 at 67 21 [Metcalf’s February 3, 2021 “CBI Meeting Summary” email: “Due to your position being 22 eliminated we have some interim Access to Care positions open that you could work at 23 while looking for another internal position.”]; id. at 69 [Plaintiff’s February 5, 2021 24 response email: “During our conversation you expressed the information described in your 25 26 22 See generally Nunies, 908 F.3d at 431 (treating the elimination of an employee’s job as termination); Voschin v. Bd. of Cnty. Comm’rs of Miami-Dade Cnty., 2012 WL 27 1792336, *3 n.6 (S.D. Fla. 2012) (“[T]he Court will proceed with its analysis under the presumption that Plaintiff Voschin was terminated, because Defendant County had notified 28 Plaintiff Voschin of the elimination of her position and gave notice of her effective termination date prior to the resignation decision.”).

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1 email. . . . The position being offered is that of a entry level position at access to care which 2 is not comparable to the position I held in any way. . . . I am declining the position being 3 offered by CBI . . . .”].) Nothing in those descriptions qualifies as direct evidence of 4 discriminatory intent. 5 Plaintiff also contends in her response brief that her “disability led to an adverse 6 employment action as . . . per [CBI’s] own submission to the State of Arizona 7 Unemployment [that CBI] terminated Plaintiff due to excessive absenteeism during the 8 approved medical/personal leave.” (Doc. 65 at 9.) Even if this assertion is generously 9 construed as an attempt to identify direct evidence of discriminatory animus, it fails to 10 establish the intended purpose. As noted in the statement of facts, Plaintiff applied for 11 unemployment benefits after she stopped working for CBI. After CBI opposed her claim, 12 both sides had an opportunity to provide a statement to DES. In her statement, Plaintiff 13 did not contend that CBI admitted to having a discriminatory motive for the elimination of 14 her position. To the contrary, Plaintiff claimed that CBI did not offer an explanation for 15 the decision: “On 2/3/2021, during that [Z]oom meeting I was informed my position as 16 associate director had been eliminated and no further information was offered.” (Doc. 62- 17 1 at 72, emphasis added.) Likewise, the notes from the DES factfinding process suggest 18 that CBI simply confirmed that Plaintiff’s old position had been eliminated without 19 explaining why. (Id. at 72-73.) Those notes also indicate that CBI stated that Plaintiff 20 “voluntarily quit after refusing a suitable offer of work.” (Id. at 72.) Once again, nothing 21 in those descriptions qualifies as direct evidence of discriminatory intent. 22 The final piece of evidence in the summary judgment record concerning Plaintiff’s 23 application for unemployment benefits is DES’s final (pre-appeal) decision denying her 24 claim for benefits, in which DES wrote: “Your employment was terminated because you 25 did not provide proper notice to your employer of your absence from work. You were 26 aware that notice was required. You have not shown good cause for failing to provide 27 notice as required by your employer. Your actions were a disregard of your employer’s 28 interest.” (Doc. 44 at 53.) This, too, fails to qualify as direct evidence of discriminatory

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1 intent. As an initial matter, the reference to Plaintiff’s failure to “provide proper notice to 2 your employer of your absence from work,” when read in context of the parties’ earlier 3 statements to DES, likely refers to Plaintiff’s refusal to show up to work for the new 4 position she was offered. But even assuming for the sake of argument that it might refer 5 to earlier conduct, no reasonable juror could construe it as suggesting that CBI eliminated 6 Plaintiff’s position because of her earlier health-related absenteeism—rather, the concern 7 arose from Plaintiff’s failure to provide “proper notice” of her absences. Faulting an 8 employee for violating notice requirements is not direct evidence of disability 9 discrimination.23 10 Thus, as in the previous summary judgment order, the Court construes Plaintiff’s 11 brief as arguing that such animus may be inferred from the temporal proximity between 12 her disclosures regarding her medical conditions and her termination. Cf. Anderson v. City 13 & Cnty. of San Francisco, 169 F. Supp. 3d 995, 1035 (N.D. Cal. 2016) (“Plaintiff is silent 14 on the issue of causation. The court will construe Plaintiff’s causation evidence as being 15 based solely on temporal proximity between the filing of her second EEOC charge in 16 March 2012, and her non-selection for the 115th Fire Academy in July 2013.”). The Ninth 17 Circuit has held that “in some cases, causation can be inferred from timing alone where an 18 adverse employment action follows on the heels of protected activity. But timing alone 19 will not show causation in all cases; rather, ‘in order to support an inference of retaliatory 20 motive, the termination must have occurred fairly soon after the employee’s protected 21 expression.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) 22 (cleaned up). See also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) 23 (“[T]emporal proximity must be ‘very close.’”) (citation omitted); Hanson v. Or., Legis. 24 Assembly, 2023 WL 22196, *11 (D. Or. 2023) (“Temporal proximity between protected 25 23 26 This conclusion is not inconsistent with the passage in the earlier summary judgment order explaining that CBI’s notice-based explanation to DES for the termination 27 decision could be viewed, for purposes of later steps of the McDonnell Douglas analysis, as evidence that CBI’s other proffered reason for the elimination of Plaintiff’s position (i.e., 28 a business restructuring) was pretextual. (Doc. 59 at 26-27.) The point here is that none of CBI’s proffered justifications constitute direct evidence of discriminatory animus.

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1 activity and an adverse employment action can by itself constitute sufficient circumstantial 2 evidence of retaliation in some cases. Courts in analyzing discrimination claims, however, 3 also have considered close temporal proximity as evidence supporting whether 4 discrimination was ‘because of’ (meaning ‘but for’) the protected characteristic, 5 particularly in ADA and FMLA cases.”) (cleaned up). 6 The relevant chronology is as follows. Plaintiff first informed CBI of her fatty liver 7 disease and IBS during her interview and application process in March 2020. (Doc. 62-1 8 at 51; Doc. 65 at 5.) On November 2, 2020, Plaintiff began her leave of absence from 9 work. (Doc. 43-9 at 2.) On November 5, 2020, while still on leave, Plaintiff emailed CBI 10 that although her “only medical conditions are IBS and fatty liver none of which is what I 11 am dealing with now,” she “[had] been enduring a very serious medical concern on set 12 [sic] by stress from my employment with CBI,” specifically that she had been in the ER 13 because of her high blood pressure and pre-stroke symptoms. (Doc. 44 at 20, 24-25.) On 14 November 17, 2020, Plaintiff emailed DaCosta and Metcalf that she would be able to return 15 to work on November 25, 2020. (Id. at 32.) However, on November 24, 2020, after being 16 told that her work location changed, Plaintiff informed CBI that she had a stroke/TIA three 17 weeks earlier and that she planned to ask her doctor to reevaluate her return to work. (Id. 18 at 33.) Next, on November 25, 2020, Plaintiff submitted a doctor’s note extending her 19 leave until December 15, 2020. (Doc. 62-1 at 38.)24 On December 15, 2020, Plaintiff 20 submitted another doctor’s note extending her leave until January 11, 2021. (Id.) On 21 January 11, 2021, Plaintiff submitted her reasonable accommodation application 22 identifying her claimed impairments (Doc. 44 at 38-39) and another doctor’s note 23 extending her leave until February 2, 2021 (Doc. 62-1 at 37). On February 2, 2021, 24 Plaintiff informed CBI that she would return to work on February 3, 2021, and CBI 25 informed Plaintiff that her position had been eliminated. (Doc. 1 at 10.) On February 3, 26 2021, CBI offered Plaintiff a temporary position in Access to Care, which Plaintiff declined 27 28 24 The email cross-referencing the November 25, 2020 doctor’s note was not in the record at the time of the earlier summary judgment order.

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1 on February 5, 2021. (Doc. 44 at 47; Doc. 62-1 at 67.) 2 Given this backdrop, no reasonable juror could infer a causal connection between 3 Plaintiff’s disclosure of her impairments (which began in March 2020) and CBI’s 4 elimination of her position and purported constructive discharge in February 2021. The 5 11-month gap was simply too long to create an inference of causation. Kadiyan v. 6 Medtronic, 2011 WL 13142145, *15 (C.D. Cal. 2011), aff’d sub nom. Kadiyan v. 7 Medtronic, Inc., 510 F. App’x 649 (9th Cir. 2013) (“The fact that Kadiyan was allegedly 8 terminated six months after she informed her employer of her disability, standing alone, is 9 thus insufficient to make out a prima facie case of disability discrimination.”). See also 10 Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (concluding that a causal 11 “inference is not possible in this case because approximately nine months lapsed between 12 the date of Manatt’s complaint and the Bank’s alleged adverse decisions”) (citations 13 omitted).25 14 Plaintiff’s statement regarding her fatty liver disease and IBS in her November 5, 15 2020 email does not undermine this conclusion, as she simultaneously informed CBI in 16 that email of two new health conditions that were keeping her out of work. Indeed, 17 Plaintiff’s theory is that her disclosures on November 5, 2020 simply added to CBI’s 18 existing knowledge of her alleged disabilities. (Doc. 65 at 9 [“Plaintiff informed CBI of 19 her fatty liver disease and IBS prior to employment. During her medical leave from work 20 25 In the earlier summary judgment order, the Court concluded, based on the 21 underdeveloped record before it at the time, that “[a] reasonable juror could infer from this chronology that the Plaintiff’s email of November 17, 2020 indicated that she was no 22 longer disabled; that Plaintiff’s email of November 24, 2020, although ambiguous due to its reference to ‘asking [Plaintiff’s] doctor to re-evaluate [her] return to work,’ did not 23 constitute a renewed claim of disability but rather reflected Plaintiff’s dissatisfaction with the plan to change her work location; and that Plaintiff did not effectively reassert a 24 disability until January 11, 2021, when she formally submitted the reasonable accommodation request.” (Doc. 59 at 24, alterations in original.) Given this chronology, 25 the Court concluded that a reasonable juror could make a causal inference due to the temporal proximity between Plaintiff’s reassertion of her disability in January 2021 and 26 Plaintiff’s termination in February 2021, or alternatively between Plaintiff’s November 24, 2020 email and her February 2021 termination. (Id. at 23-25.) The analysis here is 27 different due to CBI’s submission of important new evidence that was not previously part of the record—the evidence that Plaintiff sent a doctor’s note on November 25, 2020 28 extending her uninterrupted medical leave. (Doc. 62-1 at 38.) This additional evidence fills the temporal gap that existed in the previous record.

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1 Plaintiff inform CBI of new diagnosis of TIA mini stroke, hbp-high blood pressure, 2 diabetes and CNS disease all disabilities aforementioned are covered under ADA.”].) 3 Nor does Plaintiff’s November 17, 2020 email, which included a request to return 4 to work on November 25, 2020, alter the causation analysis. That email only indicated 5 when Plaintiff would be able to return to work, November 25, 2020, not that she was able 6 to return to work on November 17, 2020. Because Plaintiff’s doctor extended her leave on 7 November 25, 2020 and twice again after that (through February 2, 2021), CBI continued 8 to regard Plaintiff as impaired throughout that period. 9 2. Reasonable Accommodation 10 a. The Parties’ Arguments 11 CBI argues that “Plaintiff cannot prevail on an accommodation claim because she 12 was not actually disabled, she was not perceived as disabled, and she failed to engage in 13 the interactive process in good faith.” (Doc. 62 at 15.) Specifically, CBI argues that 14 “Plaintiff never actually requested any specific accommodation” and “repeatedly failed 15 and/or refused to provide CBI with sufficient information to determine whether she was 16 actually disabled, and if so, whether she actually needed an accommodation.” (Id. at 10, 17 12.) CBI also argues that “even if it were assumed, for the sake of argument only, that 18 Plaintiff could show that CBI ‘regarded’ her as disabled, this would not be a valid legal 19 basis to establish an accommodation claim.” (Id. at 17.)26 20 Unfortunately, Plaintiff’s response brief offers only a cursory defense of her failure 21 to accommodate claim. Plaintiff asserts that CBI was aware of her disabilities, “fatty liver 22 disease and IBS[,] . . . TIA mini-stroke, hbp-high blood pressure, type II diabetes, CNS 23 disease,” that she “was responsible in providing her employer with information as obtained 24 by medical professionals,” and that she “continuously provided . . . CBI with on-going 25 26 CBI is correct that “there is no duty to accommodate an employee in an ‘as regarded’

26 case.” Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1233 (9th Cir. 2003). Thus, if Plaintiff’s failure-to-accommodate evidence were otherwise sufficient to survive summary 27 judgment, it might be necessary to expand the analysis in Part II.A.2 to address the sufficiency of Plaintiff’s evidence under the first prong of the “disability” definition. But 28 because, as discussed below, Plaintiff’s failure-to-accommodate evidence fails for other reasons, there is no need to expand Part II.A.2.

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1 medical documentation and status of her illness and diagnosis.” (Doc. 65 at 5, 9.) Plaintiff 2 then asserts that her “disability led to an adverse employment action as CBI never discussed 3 reasonable accommodations.” (Id. at 9.)27 4 In reply, CBI essentially reiterates the arguments from its renewed summary 5 judgment motion: (1) Plaintiff “cannot show that she was ever actually disabled”; and (2) 6 even if she could, “she cannot show that CBI failed to accommodate her, because she failed 7 to cooperate with CBI during the interactive process.” (Doc. 67 at 4.) CBI then elaborates 8 upon the arguments raised in its motion. (Id. at 5-6.) 9 b. Analysis 10 An employer engages in unlawful discrimination in violation of the ADA by “not 11 making reasonable accommodations to the known physical or mental limitations of an 12 otherwise qualified individual with a disability who is an applicant or employee, unless 13 such covered entity can demonstrate that the accommodation would impose an undue 14 hardship on the operation of the business of such covered entity.” 42 U.S.C. 15 § 12112(b)(5)(A). See generally Snapp v. United Transp. Union, 889 F.3d 1088, 1095 (9th 16 Cir. 2018) (“The ADA treats the failure to provide a reasonable accommodation as an act 17 of discrimination if the employee is a ‘qualified individual,’ the employer receives 18 adequate notice, and a reasonable accommodation is available that would not place an 19 undue hardship on the operation of the employer’s business.”). 20 “The Ninth Circuit has held that notifying an employer of a need for an 21 accommodation triggers a duty to engage in an ‘interactive process’ through which the 22 employer and employee can come to understand the employee’s abilities and limitations, 23 the employer’s needs for various positions, and a possible middle ground for 24 accommodating the employee.” Snapp, 889 F.3d at 1095. “The interactive process 25 requires both the employer and the employee to engage in good faith in order to clarify 26 27 27 Plaintiff also offers arguments regarding the issues of retaliation and vicarious liability. (Id. at 9-11.) It is unnecessary to address those arguments here because the Court 28 already granted summary judgment to CBI as to Plaintiff’s retaliation and vicarious liability claims. (Doc. 59 at 35-41.)

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1 what the individual needs and identify the appropriate accommodation.” Goos v. Shell Oil 2 Co., 451 F. App’x 700, 702 (9th Cir. 2011) (internal quotation marks and citation omitted, 3 emphasis in original). See also id. (the employee’s participation is “important” because 4 the employee “generally knows more about his or her capabilities, and ‘holds essential 5 information for the assessment of the type of reasonable accommodation which would be 6 most effective’”) (citation omitted). Thus, “an employer does not have a duty under the 7 ADA . . . to engage in further interactive processes . . . in the absence of requested medical 8 evidence.” Garcia v. Salvation Army, 918 F.3d 997, 1010 (9th Cir. 2019) (cleaned up). 9 See also Allen v. Pac. Bell, 348 F.3d 1113, 1116 (9th Cir. 2003) (“Because Allen failed to 10 cooperate in the job-search process [by failing to appear for required tests to qualify for 11 certain jobs], we cannot say that Pacific Bell failed to fulfill its interactive duty.”); Reza v. 12 Int’l Game Tech., 351 F. App’x 188, 190 n.2 (9th Cir. 2009) (“[A]s Reza failed to provide 13 medical evidence supporting her new ‘smells’ condition, IGT was not required to engage 14 in further interactive processes, and Reza was not entitled to accommodation under the 15 ADA.”); Hill v. City of Phoenix, 162 F. Supp. 3d 918, 928 (D. Ariz. 2016), order clarified, 16 2016 WL 3457895 (D. Ariz. 2016) (“An employer is not subject to liability on this theory, 17 however, if the employee was responsible for the breakdown in the process.”).28 18 No reasonable juror could conclude on this record that CBI failed to reasonably 19 accommodate Plaintiff. To be sure, Plaintiff took many steps that could be viewed as 20 triggering CBI’s obligation to engage in an interactive process, including identifying her 21 impairments to CBI employees via email (Doc. 44 at 24, 33), requesting medical leave 22 (Doc. 43-11 at 2; Doc. 62-1 at 14), and submitting a reasonable accommodation request 23 (Doc. 44 at 38-39). But in response, CBI made numerous overtures to Plaintiff, including 24 granting her MLOA and PLOA (Doc. 43-7 at 2; Doc. 43-8 at 2); repeatedly asking her to 25 28 26 Alternatively, even if the employer bears responsibility for the breakdown of the interactive process, this does not necessarily result in liability. “[T]here exists no stand-

27 alone claim for failing to engage in the interactive process”—rather, “if an employer fails to engage in good faith in the interactive process,” the consequence is simply that “the 28 burden at the summary-judgment phase shifts to the employer to prove the unavailability of a reasonable accommodation.” Snapp, 889 F.3d at 1095.

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1 fill out a reasonable accommodation application (Doc. 44 at 36 [November 25, 2020 email 2 from Metcalf]; id. at 35 [December 2, 2020 follow-up email from Metcalf]; id. [December 3 10, 2020 follow-up email from Metcalf]); repeatedly asking her to provide medical 4 documentation (Doc. 44 at 36 [November 25, 2020 email from Metcalf requesting that 5 Plaintiff’s “physician fill out the medical inquiry form for a reasonable accommodation”]; 6 Doc. 62-1 at 25-26 [December 10, 2020 email from Metcalf to Plaintiff requesting medical 7 documentation]; id. at 37-38 [January 7, 2021 email from Metcalf to Plaintiff requesting 8 medical documentation]); and repeatedly attempting to set up meetings with her to discuss 9 her situation (Doc. 62-1 at 33-34 [December 17, 2020 communications between Metcalf 10 and Plaintiff to set up a meeting]; id. at 32-33 [December 18, 2020 email from Metcalf 11 following up about setting a time for the meeting]; id. at 32 [December 28, 2020 email 12 from Metcalf following up]). Plaintiff, in turn, failed to meaningfully respond to those 13 requests, causing the breakdown in the interactive process. 14 Although Plaintiff submitted doctors’ notes excusing her from work, those generic 15 notes were not responsive to CBI’s requests for medical documentation because they did 16 not describe Plaintiff’s disabilities or provide a diagnosis. (Doc. 43-9 at 2-3; Doc. 44 at 17 32, 37; Doc. 62-1 at 37-38.) Indeed, Plaintiff maintained that she was not required to 18 provide additional medical information to CBI: “I have enough to deal with and I’m unsure 19 why you keep harassing me during my medical leave regarding petty paperwork that is not 20 a legal requirement.” (Doc. 62-1 at 25.)29 Plaintiff also declined to grant CBI access to 21 her medical records. (Doc. 44 at 39.) Given this backdrop, no reasonable juror could 22 conclude that CBI was responsible for the breakdown in the interactive process. See, e.g., 23 Heit, 726 F. App’x at 649-50 (“The record establishes that Aerotek did not accommodate 24 Heit’s request for alternative drug testing because it did not have the requisite 25 documentation to determine what kind of testing would be appropriate. An employer has 26 29 In her response brief, Plaintiff continues to baselessly criticize CBI for requesting 27 medical documentation as part of the interactive process: “The communication by CBI became so bothersome to disclose personal health information . . . that Plaintiff decided to 28 hire [an] employment law attorney . . . on January 8, 2021 for limited scope representation.” (Doc. 65 at 5.)

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1 a right to this documentation under both the ADA and the WLAD. Because Heit was 2 responsible for the breakdown of the interactive process, the district court properly granted 3 summary judgment in favor of Aerotek.”) (internal citations omitted); Marquez v. Glendale 4 Union High Sch. Dist., 2018 WL 4899603, *20 (D. Ariz. 2018) (concluding that the 5 employer did not have a duty to provide a reasonable accommodation where the 6 employee’s “communications with the [employer] were devoid of any detail relating to her 7 condition and need for accommodation or leave” and the employee did not provide any 8 medical records); Hoang v. Wells Fargo Bank, N.A., 724 F. Supp. 2d 1094, 1102 (D. Or. 9 2010) (“On December 3, after MetLife denied Hoang’s application for STD, Wells Fargo 10 sent Hoang a request for a medical certification and warned her of the consequences of not 11 responding. Wells Fargo wrote to Hoang again on December 22 to inform her that the 12 company had not yet received her paperwork. Hoang’s failure to return the requisite 13 documentation to process her time in Mexico as medical leave indicates that the breakdown 14 in communication rested on Hoang’s shoulders.”). See also Beck v. Univ. of Wisconsin Bd. 15 of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996) (“[W]here, as here, the employer makes 16 multiple attempts to acquire the needed information, it is the employee who appears not to 17 have made reasonable efforts.”). 18 Finally, separate and apart from the breakdown in the interactive process, no 19 reasonable juror could find on this record that Plaintiff’s requested accommodation was 20 reasonable. Unfortunately, Plaintiff’s briefing and reasonable accommodation application 21 are not a model of clarity as to the specific accommodation she believes should have been 22 provided to her. Although it is clear that Plaintiff requested a medical leave of absence in 23 November 2020 (Doc. 62-1 at 14; Doc. 43-11 at 2), Plaintiff did not indicate what specific 24 accommodation she desired in her reasonable accommodation application, instead stating 25 that “[a]t this time my PCP does not release me to return to work” (Doc. 44 at 38). When 26 asked to indicate the duration of the reasonable accommodation, Plaintiff wrote 27 “unknown.” (Id. at 40.) As the Ninth Circuit and other courts have recognized, although 28 “[j]ob-protected leave for a fixed period can be an accommodation, . . . indefinite leave is

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1 not reasonable as a matter of law.” Makor v. Burlington N. Santa Fe Ry. Co., 680 F. App’x 2 542, 544 (9th Cir. 2017) (analyzing claim under California’s Fair Employment and 3 Housing Act). See also Chandler v. DeJoy, 2024 WL 359469, *15 (D. Ariz. 2024) 4 (collecting cases). 5 Accordingly, 6 IT IS ORDERED that CBI’s renewed motion for summary judgment (Doc. 62) is 7 granted. The Clerk shall enter judgment accordingly and terminate this action. 8 Dated this 12th day of March, 2024.