Gage v. Midwestern University

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ian Gage, No. CV-19-02745-PHX-DLR

10 Plaintiff, ORDER

11 v.

12 Midwestern University,

13 Defendant. 14 15 16 This matter comes before the Court on remand from the Ninth Circuit Court of 17 Appeals. (Doc. 97.) The Court held a telephonic conference on January 14, 2025, to discuss 18 next steps. (Doc. 95.) During that conference, Plaintiff Ian Gage indicated that he wished 19 to supplement the record with additional discovery material. The Court authorized Mr. 20 Gage to file a motion to conduct additional discovery. Mr. Gage filed that motion on 21 February 12, 2025 (Doc. 100), and the motion is fully briefed (Docs. 105, 109.) This order 22 (1) summarizes the procedural posture of the case, (2) addresses Mr. Gage’s motion for 23 leave to conduct additional discovery, and (3) details how the case will proceed from here. 24 I. Background and Procedural Posture 25 Mr. Gage filed the complaint in this action on April 30, 2019. (Doc. 1.) His 26 complaint alleges that his former employer, Defendant Midwestern University (“the 27 University”), discriminated against him because of his sex in violation of Title VII of the 28 Civil Rights Act of 1964, discriminated against him because of his disability in violation 1 of the Americans with Disabilities Act (“ADA”), and retaliated against him for engaging 2 in activity protected by the ADA. (Id.; see also Doc. 16 at 1-7.) 3 After the close of discovery, the University moved for summary judgment on all 4 claims. (Doc. 44.) With respect to the ADA discrimination claim, the University argued 5 that Mr. Gage lacked sufficient evidence that he was disabled within the meaning of the 6 ADA.1 (Id. at 11-14.) 7 On January 18, 2022, the Court granted the University’s summary judgment motion. 8 (Doc. 58.) In so doing, the Court agreed that the record lacked evidence that Mr. Gage was 9 disabled within the meaning of the ADA. The Court explained that Mr. Gage relied 10 principally on his doctor’s notes, but that those notes “do not indicate that the symptoms 11 of which [Mr.] Gage complained were anything more than temporary.” (Id. at 10.) The 12 Court also observed that “[t]he doctors’ notes do not state that [Mr.] Gage’s exposure to 13 formaldehyde and his transient respiratory symptoms resulted in substantially limiting a 14 major life activity, as required by the ADA.” (Id. at 11.) 15 Mr. Gage appealed the Court’s ruling. (Doc. 61.) The Ninth Circuit affirmed the 16 Court’s decision granting summary judgment to the University on Mr. Gage’s Title VII 17 claims and ADA retaliation claim. (Doc. 78-1 at 1-3.) It reversed the Court’s ruling on Mr. 18 Gage’s ADA discrimination claim because, after the Court issued its decision, the Ninth 19 Circuit released an opinion clarifying that the ADA’s definition of disability is not subject 20 to any categorical temporal limitation. (Id. at 4.) The Ninth Circuit therefore remanded the 21 case for this Court to reconsider “whether [Mr.] Gage is disabled under [the ADA] and 22 whether he has provided sufficient evidence to carry his summary judgment burden on that 23 claim.” (Id.) 24 On remand, the Court held a telephonic status conference to discuss next steps. 25 (Doc. 73.) Because a considerable amount of the original summary judgment briefing

26 1 The University also stated its belief that Mr. Gage was not qualified to perform the essential functions of his job because he refused to return to work, and that the University 27 could not have denied Mr. Gage a reasonable accommodation because he never asked for one. (Id. at 14.) Other than stating these conclusions in two sentences, however, the 28 University did not develop those arguments in its brief, and the Court’s subsequent order did not consider them. (See Doc. 58 at 9-11.) 1 addressed Mr. Gage’s Title VII and ADA retaliation claims, which had not been remanded, 2 the Court determined that it was sensible for the parties to file supplemental summary 3 judgment memoranda focusing solely on the ADA discrimination claim. (Doc. 82 at 4.) 4 Both sides agreed, as well, that no new evidence would be submitted with the supplemental 5 memoranda. Instead, the parties would ground their arguments in the existing evidentiary 6 record. (Id. at 6-7.) 7 Thereafter, the University filed its supplemental summary judgment brief, which 8 focused solely on whether Mr. Gage is disabled within the meaning of the ADA.2 (Doc. 9 74.) The University attached to its supplemental brief a copy of the complaint Mr. Gage 10 filed in a separate lawsuit against the Arizona Board of Regents. (Doc. 74-1.) Mr. Gage 11 filed a supplemental response (Doc. 77) and moved to strike the exhibit the University had 12 attached to its supplemental brief, arguing that the University was expanding the 13 evidentiary record beyond what existed at the time of the original summary judgment 14 briefing (Doc. 76). 15 The Court again ruled in favor of the University after finding that Mr. Gage had not 16 presented sufficient evidence to create a triable issue of fact regarding whether he’s 17 disabled within the meaning of the ADA. (Doc. 85.) The Court observed that Mr. Gage 18 relies primarily on doctors’ notes, and although those notes indicate that Mr. Gage was 19 experiencing symptoms consistent with formaldehyde exposure, they did not state Mr. 20 Gage has a particular physical or mental impairment, nor do they show that Mr. Gage’s 21 reaction to formaldehyde substantially limited any major life activities. (Id. at 5.) The Court 22 also noted that Mr. Gage relied on “his own email to the University summarizing . . 23 .symptoms that he argues line up with major life activities,” but the Court discounted the 24 email because it “is an unsworn, uncorroborated and self-serving statement, which alone 25 cannot create a genuine issue of fact.” (Id. at 6 (internal quotations and citation omitted).) 26 On appeal, the Ninth Circuit reversed after concluding that the Court had erred by 27 disregarding Mr. Gage’s email to the University because the email reflects Mr. Gage’s

28 2 The University did not argue in the alternative that even if Mr. Gage is disabled within the meaning of the ADA, his discrimination claim fails on some other element. 1 personal knowledge, and he could testify consistent with its contents at trial. (Doc. 97-1.) 2 The Ninth Circuit remanded for the Court “to consider in the first instance whether the 3 contents of the email, in addition to the other evidence in the record, raise a genuine dispute 4 of material fact as to whether the symptom’s of [Mr.] Gage’s formaldehyde sensitivity and 5 his respiratory impairments substantially limit a major life activity.” (Id. at 2.) 6 On January 14, 2025, the Court held a telephonic conference to discuss the Ninth 7 Circuit’s remand decision and how to move forward. (Doc. 95.) During that call, the Court 8 explained its understanding of the Ninth Circuit’s order: “the Ninth Circuit is instructing 9 [the Court] to look at Mr. Gage’s email to the [U]niversity along with his doctor’s notes 10 and decide whether that evidence creates a genuine issue of material fact as to whether Mr. 11 Gage’s symptoms substantially limit a major life activity.” (Doc. 98 at 8.) Mr. Gage, 12 however, disagreed that the evidentiary record should be so limited. Instead, Mr. Gage 13 argued that he should be permitted to supplement the evidentiary record with, among other 14 things, records of a pulmonary function test (“PFT”), and to conduct some additional 15 discovery into what he described as fraudulent acts and spoliation of evidence. (Id. at 31.) 16 The University disagreed that the evidentiary record should be expanded but argued that 17 the Court should permit “supplemental briefing on the narrow question that the Ninth 18 Circuit remanded to be decided[.]” (Id. at 41.) 19 After hearing from the parties, the Court authorized Mr. Gage to file a motion to 20 conduct additional discovery and supplement the evidentiary record. (Id. at 37.) The Court 21 declined to order supplemental summary judgment briefing at that time, choosing instead 22 to await the outcome of Mr. Gage’s anticipated discovery motion. (Id. at 42.) 23 II. Mr. Gage’s Motion to Conduct Additional Discovery 24 The Ninth Circuit remanded for this Court to consider the contents of Mr. Gage’s 25 email, in addition to the other evidence in the record, and determine whether a triable issue 26 exists as to whether Mr. Gage is disabled within the meaning of the ADA. In his motion, 27 Mr. Gage describes evidence that is not presently in the record. Because some of the 28 discovery, as described by Mr. Gage, appears to be relevant, and because the University 1 has not shown it would be prejudiced by the additional discovery, the Court, in its 2 discretion, will allow Mr. Gage to conduct some limited additional discovery, as described 3 below. In its discussion, the Court will identify the discovery requests by the names used 4 in Mr. Gage’s motion. 5 A. PFT 6 Mr. Gage seeks to supplement the summary judgment record with the results of a 7 PFT. The University objects that the PFT was untimely disclosed and is inadmissible. 8 Although the Court agrees with the University that disclosure of the PFT is untimely under 9 Federal Rule of Civil Procedure 26,3 the University’s objection is overruled because it has 10 not shown that the timing of disclosure is harmful. See Fed. R. Civ. P. 37(c)(1). As for 11 admissibility, the Court is not prepared to rule that Mr. Gage could, under no circumstance, 12 offer the PFT into evidence in an admissible manner at trial. The University remains free 13 to raise its admissibility objections at trial, but the Court will not exclude it for purposes of 14 summary judgment. Mr. Gage will be permitted to supplement the summary judgment 15 record with the PFT. 16 B. Documents Related to Government Corruption 17 Mr. Gage seeks communications between the Arizona Division of Occupational 18 Safety and Health (“ADOSH”) and the University. Assuming these documents exist, the 19 University has not argued that they are privileged. Communications that refer to or involve 20 Mr. Gage’s injury/disability could be relevant to matters involved in this case. If, as Mr. 21 Gage alleges, the University has unredacted copies of the documents produced by ADOSH 22 in response to Mr. Gage’s Freedom of Information Act requests, Mr. Gage may propound 23 discovery to seek the disclosure of these communications. If Mr. Gage previously 24 propounded a request for production of these documents, the University shall respond to 25 the request within 14 days of the date of this order. If not, then Mr. Gage may serve one 26 such request for production on the University within 14 days of the date of this order. 27 C. Missing Records- Formaldehyde

28 3 The PFT was prepared on April 9, 2018. It was available to Mr. Gage well before the Court ruled on the motion for summary judgment. 1 Mr. Gage seeks discovery into the monitoring results for 40% formaldehyde 2 exposure, in accordance with the Standard Operating Procedure that Mr. Gage alleges he 3 was instructed to follow. The Court finds those documents relevant for discovery purposes. 4 If Mr. Gage previously propounded a request for production of these documents, the 5 University shall respond to the request within 14 days of the date of this order. If not, then 6 Mr. Gage may serve one such request for production on the University within 14 days of 7 the date of this order. 8 D. Mr. Gage’s Communications with Hartford in the University’s Possession 9 Mr. Gage is entitled to all his statements and communications with the University 10 or any other person or entity that are in the University’s possession and that pertain to this 11 action or the subject matter involved in this case. See Fed. R. Civ. P. 26(b)(3)(C). If Mr. 12 Gage previously propounded such a request, the University shall respond to it within 14 13 days of the date of this order. If not, then Mr. Gage may serve one such request for 14 production on the University within 14 days of the date of this order. 15 E. Mr. Gage’s Medical Records Gathered by the University in this Litigation 16 from Mr. Gage’s Medical Providers 17 Mr. Gage signed medical releases allowing the University to obtain his medical 18 records from his providers relating to the injuries he has alleged in this action. He is entitled 19 to copies of the records obtained by the University. No request for production is necessary. 20 The University indicates in its response that it has provided Mr. Gage with all medical 21 records that it has gathered in this litigation. If such is the case, then within 14 days of the 22 date of this order, the University shall certify to Mr. Gage in writing that it has disclosed 23 to him copies of all medical records obtained by the University in connection with this 24 action. To the extent that any such records have not been provided to Mr. Gage, the 25 University shall provide them to Mr. Gage within 14 days of the date of this order. 26 F. University of Arizona (“U of A”) Records 27 Mr. Gage protests the University’s use of a “large file” pertaining to his Equal 28 Employment Opportunity Commission complaint against the U of A. He indicates that the 1 University has not produced that file to him. The University indicates that the documents 2 in its possession regarding Mr. Gage’s complaint against the U of A were obtained from 3 the Court’s docket in that case and, as such, are public records Mr. Gage is equally capable 4 of accessing. Pursuant to the disclosure requirements of Rule 26(a), if the University 5 intends to use any of those documents to support its claims or defenses, and if it has not 6 already done so, it shall provide Mr. Gage with copies—or description of those documents 7 by category and location—within 14 days of the date of this order. 8 G. Alleged Retaliatory Actions Against Mr. Gage’s Mother 9 Mr. Gage alleges that the University engaged in retaliatory actions against his 10 mother, who was employed by Abrazo Health, by causing her to be removed from her 11 position. He asks the Court to order the University to produce a variety of documents 12 pertaining to communications and contracts with Abrazo Health, and to issue a restraining 13 order against the University. However, Mr. Gage’s mother is not a party to this action. Mr. 14 Gage’s complaint does not allege retaliatory conduct toward his mother. And the only 15 claim remaining in this case after the Ninth Circuit’s review is Mr. Gage’s claim of 16 disability discrimination under the ADA. The Court will not permit discovery into a claim 17 that is not part of this case and which, according to the timeframes described in Mr. Gage’s 18 motion, would have long since been time-barred. 19 H. Mr. Gage’s Allegations of Fraud and Spoliation 20 A major portion of Mr. Gage’s discovery motion focuses on conducting discovery 21 into alleged fraud and spoliation of evidence by the University and by non-parties, 22 including the Government and Hartford Insurance. Preliminarily, the Court notes that many 23 of these allegations were previously raised by Mr. Gage in a “Request for Court 24 Investigation of Attorney’s Misconduct,” (Doc. 56) which the Court addressed and denied 25 in an order dated January 18, 2022 (Doc. 60). The Ninth Circuit remanded this case for 26 further consideration of whether Mr. Gage has sufficient evidence to create a genuine of 27 issue of material fact for trial. The remand did not re-open every aspect of this case for 28 reconsideration. 1 In any event, Mr. Gage has not shown that discovery into his spoliation and fraud 2 allegations is warranted. “Spoliation is the destruction or significant alteration of evidence, 3 or the failure to preserve property for another’s use as evidence, in pending or reasonably 4 foreseeable litigation.” Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 625 (C.D. Cal. 5 2013) (cleaned up). When “there is some indication that a party’s discovery has been 6 insufficient or deficient” due to spoliation or otherwise, the court may permit “discovery 7 into a party’s discovery process.” Anstead v. Va. Mason Med. Ctr., No. C21-0447JCC- 8 JRC, 2022 WL 1641425, at *5 (W.D. Wash. May 24, 2022). “Discovery on discovery” is 9 disfavored and requests to engage in it are “closely scrutinized.” Id. “Mere speculation 10 about missing evidence is insufficient to allow discovery on discovery,” and the moving 11 party “bears the burden of producing specific and tangible evidence of a material failure of 12 an opponent’s obligation[s].” LKQ Corp. v. Kia Motors Am., Inc., No. 21 C 3166, 2023 13 WL 4365899, at *7 (N.D. Ill. July 6, 2023); see also Jensen v. BMW of N. Am., LLC, 328 14 F.R.D. 557, 566 (S.D. Cal. 2019) (requiring “particularized reason[s]” for why discovery 15 on discovery should be ordered). Having carefully reviewed Mr. Gage’s motion, the Court 16 finds that his allegations of fraud and spoliation are speculative and not grounded in 17 tangible evidence of a material failure of the University to meet its discovery obligations. 18 The Court will not permit this discovery. 19 III. Next Steps 20 Because the Court is permitting Mr. Gage to engage in some limited additional 21 discovery, the Court will also permit additional supplemental summary judgment briefing 22 to afford the parties an opportunity to supplement the evidentiary record with material 23 evidence uncovered through this additional discovery. To be clear, the Court is not 24 permitting the University to raise new arguments for summary judgment that were not 25 raised in its initial summary judgment motion. The University argued that it was entitled 26 to summary judgment on Mr. Gage’s ADA discrimination claim because Mr. Gage is not 27 disabled within the meaning of the ADA. Accordingly, the supplemental summary 28 judgment briefs shall be limited to the question of whether there is sufficient evidence to 1 create a triable issue of fact as to whether Mr. Gage is disabled within the meaning of the 2 ADA. If the discovery authorized in this order produces evidence material to this issue, the 3 parties may supplement the summary judgment record with that evidence. 4 As the Court has noted in its prior orders, a person is disabled for purposes of the 5 ADA if he has a physical or mental impairment that substantially limits a major life activity. 6 One difficulty the Court has encountered in this case is identifying with specificity what 7 Mr. Gage’s alleged impartment(s) is/are. 8 At times, Mr. Gage appears to argue this case as if it were a workers’ compensation 9 case, which is to say he argues that he was injured on the job and seeks redress for that 10 workplace injury. But the ADA is not a workers’ compensation statute; it is an anti- 11 discrimination statute precluding employers from discriminating against employees 12 because of their disabilities. 13 At other times, Mr. Gage appears to argue that his impairment is “formaldehyde 14 exposure” or “chemical sensitivity.” A physical or mental impairment means: 15 (1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body 16 systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, 17 reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or 18 (2) Any mental or psychological disorder, such as an 19 intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and 20 specific learning disabilities. 21 29 U.S.C. § 1630.2(h). It is not clear to the Court, however, how exposure to formaldehyde 22 qualifies as a physiological disorder or condition, as opposed to a workplace environmental 23 hazard. And it also is unclear to the Court whether there is any evidence in the record that 24 Mr. Gage has been diagnosed with “chemical sensitivity.” 25 Portions of the record also suggest at times that Mr. Gage is arguing his impairment 26 is respiratory (perhaps asthma), that his workplace exposure to formaldehyde exacerbated 27 his respiratory impairment to the point that it began to substantially limit major life 28 activities, and that the accommodations he wanted from the University related to greater || safety around formaldehyde so that he could perform his work without triggering his || respiratory issues. For its part, the Ninth Circuit appears to have understood Mr. Gage to || be claiming that he has “formaldehyde sensitivity” and “respiratory impairments.” 4 It would greatly assist the Court if, when supplementing his summary judgment || briefing, Mr. Gage would provide the Court with clear answers (and citations to supporting || evidence, if any) to the following questions: (1) what are his alleged physical or mental impairments, (2) what major life activities does he contend those impairments substantially 8 || limit, and (3) how are those major life activities substantially limited? 9 IT IS ORDERED as follows: 10 1. Mr. Gage’s motion to conduct additional discovery and to supplement the 11 evidentiary record (Doc. 100) is GRANTED IN PART as explained in section 12 II of this order. 13 2. Within the earlier of 14 days after the completion of the additional discovery 14 authorized herein, or 60 days of the date of this order, the University shall file 15 its supplemental summary judgment brief, limited to 10 pages, double-spaced in 16 13-point font, addressing whether Mr. Gage is disabled within the meaning of 17 the ADA. 18 3. Within 14 days after being served with the University’s supplemental summary 19 judgment brief, Mr. Gage shall file a supplemental response brief, limited to 10 20 pages, double-spaced in 13-point font. 21 4. With 7 days after being served with Mr. Gage’s supplemental response brief, the 22 University may file a supplemental reply, limited to 5 pages, double-spaced in 23 13-point font. 24 Dated this 2nd day of May, 2025. 25 - 26 J _—S □□ ee 27 Do . Rayes 38 Senior United States District Judge

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