Hummel v. Maricopa County Adult Probation Department

• Court: District Court, D. Arizona
• Decided: August 26, 2021
• Docket: 2:16-cv-04381
• Status: Unknown

Opinion

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

9 Nannette G. Hummel, No. CV-16-04381-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Maricopa County Adult Probation Department, 13 Defendant. 14 15 After holding a bench trial on July 26 and 27, 2021 (Docs. 104-05), the Court now 16 provides its Findings of Fact and Conclusions of Law. 17 I. BACKGROUND 18 In this dispute between former employer and employee, Plaintiff Nannette G. 19 Hummel sued Defendant Maricopa County Adult Probation Department (“APD”), alleging 20 violations of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et 21 seq. for failure to accommodate her disability. 22 Plaintiff began working as a probation officer for APD in 2005. Prior to starting, 23 APD required her to sign a Certificate of Understanding outlining multiple conditions of 24 employment, including that she would not: 1) “knowingly initiate a personal or commercial 25 relationship with a probationer, former probationer, parolee, or a person with a felony 26 record or lawless reputation;” and 2) “engage in outside or other employment . . . which 27 conflicts with the full and proper discharge of the duties and responsibilities of my APD 28 employment.” (Defendant’s Trial Exhibit (“Def.’s Trial Ex.”) 51.) 1 On October 16, 2012, APD terminated Plaintiff’s employment. While unemployed, 2 Plaintiff started a bail bond business called Bailzona Bail Bonds, LLC (“Bailzona”). She 3 then successfully appealed her termination, and on June 10, 2013, Defendant reinstated her 4 at the Mesa Probation Service Center. On her first day, Plaintiff met with Michael Cimino, 5 then Deputy Chief Probation Officer. He informed Plaintiff that APD knew about Bailzona, 6 and that her operation of the business violated APD’s Outside Employment and Education 7 Policy, which prohibits employment with a “high probability of contact with probationers 8 [where] the nature of that contact would create a conflict with the employee’s position or 9 duties as a probation department employee and/or officer of the court.” (Def.’s Trial Ex. 10 53.) Mr. Cimino further advised Plaintiff that if she was going to continue to operate the 11 business, she needed to fill out a form requesting permission. Later that day, Plaintiff’s 12 immediate supervisor, Lisa Roubicek, again informed her that APD knew about Bailzona, 13 that it violated APD’s policy, and asked Plaintiff to fill out the request form. Plaintiff did 14 not fill out the request form on either occasion. 15 Days after her reinstatement, Plaintiff requested and APD granted her transfer to the 16 Northport Office. On June 18, 2013, Plaintiff’s first day at the Northport Office, she met 17 with her new direct supervisor, Janet Parker, who provided Plaintiff with the Outside 18 Employment and Education Policy as well as the request form. She again advised Plaintiff 19 that she needed to fill out the form and have it approved by APD in order to operate 20 Bailzona while employed by APD. 21 Plaintiff started vacation and was out of the office from June 20-23, 2013. The day 22 before her vacation, Ms. Parker emailed Plaintiff requesting that she fill out the request 23 form prior to the close of business. Plaintiff did not fill out the form. She then worked June 24 24 but started another vacation from June 25 through July 22, 2013. While out of the office, 25 Plaintiff requested Family and Medical Leave Act (‘FMLA”) leave to take care of her 26 daughter, who was having surgery for a deviated septum. (Def.’s Trial Ex. 55.) APD denied 27 the request, so Plaintiff used her sick time. Subsequently, on July 31, 2013, Plaintiff 28 submitted a request for FMLA leave from August 15, 2013 through November 15, 2013 in 1 order to undergo and recover from partial knee replacement surgery. (Def.’s Trial Ex. 56.) 2 APD approved the request, granting Plaintiff FMLA leave through November 7, 2013. 3 APD’s approval letter included instructions that Plaintiff must “present a fitness-for-duty 4 statement from your treating health care provider to be restored to employment” and stated 5 that “[a] list of the essential functions of your position is attached. The fitness-for-duty 6 statement must address your ability to perform these functions.” (Def.’s Trial Ex. 57.) 7 However, the essential functions form is not part of the exhibit and Plaintiff testified that 8 she does not recall receiving it. (Trial Transcript (“Trial Tr.”) at 129:16-18.) Plaintiff 9 underwent surgery on August 16, 2013. 10 While on sick leave and FMLA leave, Plaintiff continued to operate Bailzona. On 11 July 5, 2013, Plaintiff wrote a $2,400 bond for Jordan David Noyes, who was charged with 12 violating his probation. (Def.’s Trial Ex. 52.) Subsequently, on August 27, 2013, Plaintiff 13 appeared in Maricopa County Superior Court on two matters related to bond exoneration 14 hearings for Mr. Noyes. The first hearing was for the $2,400 bond for the probation 15 violation and the second was for a $3,600 bond for assault. (Def.’s Trial Ex. 58.) 16 On November 5, 2013, Plaintiff emailed APD Human Resources Analyst Mikisha 17 Steel to inform her that she needed to extend her medical leave of absence until January 6, 18 2014. (Def.’s Trial Ex. 59.) In support, Plaintiff attached a doctor’s note from October 31, 19 2013 which also indicated that Plaintiff would be able to return to work on January 6, 2014. 20 Barbara Broderick, Chief Probation Officer, granted the request for additional leave, while 21 also informing Plaintiff that absences after January 6 would be considered unexcused. She 22 further advised Plaintiff that in order to return to work, she “must submit medical 23 documentation clearing [her] to perform the essential functions of [her] job.” (Def.’s Trial 24 Ex. 60.) 25 On January 6, 2021, Plaintiff arrived at work, but Ms. Steel informed her that she 26 needed to leave because she had not provided the required medical clearance. Plaintiff 27 argued that the October 31 doctor’s note, which stated that she would be fit to return to the 28 office on January 6, 2014, provided the necessary documentation. Ms. Steel told Plaintiff 1 that this note was insufficient and clarified that she needed a doctor to fill out the specific 2 “essential functions form,” which she sent to Plaintiff later that day. Because Plaintiff could 3 not schedule a doctor’s appointment until January 27, 2014, Ms. Broderick extended her 4 leave until that date but informed her that any absence after January 27 would be 5 unauthorized. (Def.’s Trial Ex. 62.) 6 Plaintiff visited her doctor on January 27, who diagnosed her with hip bursitis. He 7 filled out the essential functions form with his findings that Plaintiff had physical 8 limitations that would prevent her from performing many of the essential aspects of her 9 job. He further found that Plaintiff needed an additional two weeks until February 13, 2014 10 before she could return to full duty. (Def.’s Trial Ex. 63.) Plaintiff emailed APD the 11 doctor’s assessment as well as a letter requesting an accommodation until February 13. 12 (Def.’s Trial Ex. 63.) She also informed APD that her next doctor’s appointment for 13 reevaluation was on February 24. (Def.’s Trial Ex. 63.) The next day, January 28, 2014, 14 Ms. Broderick sent Plaintiff a letter denying her extension request and informing her that 15 as of January 28, Plaintiff’s absences were unexcused and that pursuant to the Judicial 16 Merit System Rules, she would be “automatically considered to have resigned” if she was 17 absent three straight days. (Def.’s Trial Ex. 64.) 18 In response, Plaintiff emailed Ms. Broderick on January 29 requesting to use her 19 accumulated vacation and sick leave for paid time off until she was medically cleared. 20 (Pl.’s Trial Ex. 7.) Ms. Broderick was never made aware of this request. On January 30, 21 2014, Ms. Broderick sent Plaintiff a letter notifying her that APD was separating her from 22 her employment for job abandonment. (Pl.’s Trial Ex. 16.) APD subsequently terminated 23 Plaintiff without prejudice, allowing her to reapply for her position within one year if she 24 received the proper medical clearance. (Pl.’s Trial Ex. 16.) 25 Plaintiff subsequently filed this lawsuit alleging that Defendant violated the ADA. 26 She requested damages as well as reinstatement. In 2018, the Court granted Defendant’s 27 Motion for Summary Judgment on all claims, but the Ninth Circuit reversed and remanded 28 the matter (Doc 66). Plaintiff then filed a Second Amended Complaint naming Michael 1 Cimino, the current Chief Probation Officer, as the lone Defendant and requesting 2 reinstatement as her sole remedy (Doc. 98). The Court subsequently held a bench trial on 3 two issues: 1) whether Plaintiff’s request for an additional accommodation was reasonable; 4 2) whether Plaintiff’s reinstatement to her previous position would be futile due to her 5 operation of her bail bond business. In conjunction with the bench trial, the parties filed 6 Trial Memoranda (Docs. 86, 90) and Proposed Findings of Fact and Conclusions of Law 7 (Docs. 87, 91). The Court will also address Defendant’s argument, raised for the first time 8 in its Trial Memoranda, that Plaintiff’s operation of Bailzona is a defense on the merits to 9 her ADA claim. 10 II. FINDINGS OF FACT AND CONCLUSIONS OF LAW 11 When an employee requests an accommodation or the employer becomes aware of 12 the need for one, “the employer must engage in an interactive process with the employee 13 to determine the appropriate reasonable accommodation.” Zivkovic v. S. Cal. Edison Co., 14 302 F.3d 1080, 1089 (9th Cir. 2002) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 15 (9th Cir. 2000) (en banc), vacated on other grounds, U.S. Airways, Inc. v. Barnett, 535 16 U.S. 391 (2002)). Although an employee must “inform the employer of the need for an 17 adjustment due to a medical condition,” he need not use any “particular language” to do 18 so. Id. “Determining whether a proposed accommodation… is reasonable, including 19 whether it imposes an undue hardship on the employer, requires a fact-specific, 20 individualized inquiry.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243,1247 (9th Cir. 21 1999). 22 The scope of reasonable accommodations under the ADA is broad and includes “job 23 restructuring, part-time or modified work schedules, [or] reassignment to a vacant 24 position.” 42 U.S.C § 12111(9)(B). An employer does not have a duty to “provide an 25 employee the accommodation he requests or prefers” and must only “provide some 26 reasonable accommodation” for the employee. Zivkovic, 302 F.3d at 1089. Employers 27 additionally are not required to “create a new position to accommodate a disabled 28 employee.” Wellington v. Lyon Cty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999). In 1 some cases, placing an employee on medical leave may be a reasonable accommodation. 2 See Dark v. Curry Cty., 451 F.3d 1078, 1090 (9th Cir. 2006). An employee, however, is 3 not required “to show that a leave of absence is certain or even likely to be successful” in 4 treating the disability for it to be a reasonable accommodation. Humphrey v. Mem’l Hosps. 5 Ass’n, 239 F.3d 1128, 1136 (9th Cir. 2001). Although leave “of unspecified duration may 6 not be a reasonable accommodation . . . where the employee will not be able to return to 7 his former position and cannot state when and under what conditions he could return to 8 work at all,” an employer is required to at least “consider this option.” Dark, 451 F.3d at 9 1090. 10 A. Plaintiff’s Operation of Bailzona is not a Defense on the Merits 11 Defendant argues that Plaintiff’s operation of Bailzona after her reinstatement is a 12 defense on the merits to her ADA claim. (Doc. 86 at 2-3.) Murray v. Mayo Clinic, 934 F.3d 13 1101 (9th Cir. 2019) held that the Court must apply a “but for” causation standard when 14 evaluating ADA claims. Under the “but for” causation standard, “an action ‘is not regarded 15 as a cause of an event if the particular event would have occurred without it.’” University 16 of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 347 (2013). Defendant 17 thus contends that because it would have fired Plaintiff for her operation of the bail bond 18 business, her disability cannot be a but for cause of her termination. The Court disagrees. 19 In order to terminate Plaintiff for the bail bond business, Defendant needed to conduct a 20 full investigation, which it did not do. Accordingly, the termination letter expressly cites 21 Plaintiff’s job abandonment as the cause of termination but does not mention Plaintiff’s 22 bail bond business. In fact, Ms. Broderick testified that she “was not pursuing the bail 23 bonds” with regards to Plaintiff’s termination. (Videotaped Deposition of Barbara Anne 24 Broderick (“Broderick Tr.”) at 53:21-25.) Because Defendant did not have the grounds to 25 terminate Plaintiff for the bail bond business, it follows that it did not have mixed motives 26 for its decision to terminate Plaintiff’s employment, and thus the Court will not consider 27 Plaintiff’s operation of the bail bond business as a defense on the merits. 28 B. Plaintiff’s Request for an Additional Accommodation was Unreasonable 1 Nonetheless, the Court finds that Plaintiff’s request for an extension of medical 2 leave or a different accommodation on January 27, 2013 was unreasonable. APD produced 3 evidence that Plaintiff’s continued absence was a hardship for the other probation officers 4 at the Northport location. See Dark, 451 F.3d at 1090 (extended medical leave is not a 5 reasonable accommodation where it poses an undue hardship on the employer). Ms. 6 Broderick credibly testified about the need to fill the position and explained that the burden 7 to cover an officer’s caseload who is out on extended leave falls on the other officers. 8 (Broderick Tr. at 15:22-16:6.) Mr. Cimino explained that APD granted Plaintiff’s transfer 9 request because Northport needed an additional probation officer and planned to give 10 Plaintiff cases from other overburdened officers. Plaintiff contends that Northport never 11 provided her with a caseload and thus her absence was not a burden, but Mr. Cimino 12 testified that Plaintiff went on vacation before Defendant could assemble the cases and that 13 Northport had a continuous need for an officer throughout Plaintiff’s absence. (Trial Tr. at 14 198:1-200:24.) 15 Plaintiff further asserts that her accommodation request was not an undue hardship 16 on Defendant because it was limited to two weeks. (Trial Tr. at 61:24-62:15.) However, 17 the evidence shows that Defendant had ample reason to believe that Plaintiff would not be 18 healthy enough to return to work by that date, and that her absence would last indefinitely. 19 See Dark, 451 F.3d at 1090 (“recovery time of unspecified duration not a reasonable 20 accommodation where employee will not be able to return to his former position and cannot 21 state when and under what conditions he could return to work at all.”). First, Plaintiff’s 22 inaction and lack of communication leading up to and through January 6 call into question 23 her stated desire to return to work. The Court does not find Plaintiff credible that she 24 thought a doctor’s note from October 31, which Plaintiff used to request her initial 25 extension of medical leave, would be sufficient medical confirmation that she could 26 perform her job’s essential functions on January 6. Even if Plaintiff truly believed it was 27 sufficient, the Court finds that Defendant was reasonable to not accept it. Regardless, 28 Plaintiff could not return to work on February 12. Her doctor’s appointment was scheduled 1 for February 24, which is the earliest that she could have produced the required essential 2 functions form. (Def.’s Trial Ex. 63.) 3 Additionally, the January 27 essential functions report and Plaintiff’s subsequent 4 accommodations request illustrate that Defendant was reasonable to believe that Plaintiff 5 would continue to need accommodations. By January 27, Plaintiff had not worked for 6 almost seven months and had requested three extensions of her accommodations to recover 7 from the surgery. Her doctor indicated that she could not lift more than ten pounds, sit for 8 more than two hours straight, conduct field work visiting probationers at their residences, 9 or many other essential aspects of her job. (Def.’s Trial Ex. 63.) Plaintiff attempts to 10 downplay these restrictions, asserting that the doctor medically cleared her on January 6 11 and predicted the current limitations to only last until February 12. But as discussed supra, 12 Plaintiff was not cleared on January 6 and still had significant limitations three weeks later 13 on January 27. 14 Mr. Cimino and Ms. Broderick credibly explained how uncertainty regarding 15 Plaintiff’s return influenced their decision to not grant her an additional accommodation. 16 Ms. Broderick testified that she “struggled… trying to get a sense of when will [Plaintiff] 17 actually be back” and “didn’t know when the game would kind of end from the doctor’s 18 perspective.” (Broderick Tr. at 46:17-22; 47:8-20.) Mr. Cimino testified that he supported 19 Ms. Broderick’s decision because “it made sense to me given the multiple extensions, given 20 the reality that we didn’t have a clear end date in place and… there wasn’t real clarity on 21 when this was going to come to a close.” (Trial Tr. at 223:13-17.) In light of Plaintiff’s 22 extensive absence, unclear timetable for her return to work, and unwillingness or inability 23 to follow APD’s procedures, Mr. Cimino and Ms. Broderick reasonably believed that 24 Plaintiff’s request for accommodations would continue beyond February 12. 25 Plaintiff points out that the language on the FMLA leave form states that in order to 26 return to work, the medical substantiation “must be provided in advance” and thus it was 27 bound to be a “mere prediction.” (Def.’s Trial Ex. 57; Trial Tr. at 166:5-7.) This argument 28 misinterprets the form’s instructions. The medical substantiation would of course need to 1 be provided in advance of the employee’s return. However, there is a difference between a 2 doctor substantiating Plaintiff’s ability to perform the essential functions of her job prior 3 to her return and the unspecific, forward-looking prediction that Plaintiff provided to APD. 4 As an alternative to extending her medical leave, Plaintiff contends that Defendant 5 should have temporarily reassigned her to the Presentence Division or Interstate Compact 6 Outgoing Unit until she was cleared to perform the essential functions of her job. These 7 positions did not require personal contact with probationers and were less physically 8 strenuous than working as a probation officer in the field. Plaintiff produced evidence of 9 four APD employees who previously received this accommodation while pregnant or 10 recovering from injuries. (Pl.’s Trial Ex. 20; Trial Tr. at 34:20-36:8.) However, Mr. Cimino 11 and Ms. Broderick both testified that Plaintiff’s physical limitations described in the 12 January 27 essential functions form would have prevented Plaintiff from performing such 13 work. (Broderick Tr. at 92:21-93:3; Trial Tr. at 204:14-24.) While Plaintiff disputes this 14 testimony, it is of no import because the Court finds that Plaintiff’s request was 15 unreasonable for the same reason as her request for additional leave. Plaintiff would not 16 have been physically capable to work as a probation officer by February 12, and Defendant 17 reasonably believed that her need for an accommodation would last indefinitely. While 18 Plaintiff points to other employees who received such accommodations, she does not 19 provide evidence that these employees had missed similarly substantial amounts of time – 20 involving multiple requests for extensions of leave – when their accommodations were 21 granted.1 Providing Plaintiff with this accommodation would have amounted to reassigning 22 Plaintiff for an indefinite time period. Defendant was under no such obligation. See Sevcik 23 v. Unlimited Constr. Servs., 462 F. Supp. 2d 1140, 1148–49 (D. Haw. 2006) (holding 24 defendant is not obligated to make temporary light duty positions permanent to 25 accommodate plaintiff’s disability).

26 1 Plaintiff argues that the temporary reassignment would not have burdened Defendant 27 because she needed a refresher course on defensive tactics, which typically takes 3 weeks and thus she could not have returned to field work January 27 even if fully healthy. Once 28 again, this does not address the issue of Defendant’s reasonable belief that Plaintiff would not be sufficiently healthy in 3 weeks. 1 Finally, Plaintiff contends that she had a contractual right to use her accrued sick 2 leave as an accommodation.2 However, in response to the Court’s question, Mr. Cimino 3 clarified that APD’s authority to grant or deny Plaintiff’s request for sick leave is separate 4 from Plaintiff’s contractual right to be paid for her accrued sick leave. (Trial Tr. 245:22- 5 246:10.) Therefore, Plaintiff’s request to use sick leave is unreasonable for the same 6 reasons as her other accommodation requests. Defendant did not know when the 7 accommodation would end. 8 In sum, Plaintiff has failed to show by a preponderance of the evidence that her 9 request for an additional accommodation was reasonable. The evidence illustrates that 10 Plaintiff’s absence from her job appeared indefinite, which was an undue burden on 11 Defendant. 12 C. Reinstatement Would be Futile 13 Even if Plaintiff’s request for a third accommodation extension was reasonable, 14 Plaintiff’s continued operation of Bailzona bars her requested remedy of reinstatement. 15 McKennon v. Nashville Banner Publishing Co. established that “it would be both 16 inequitable and pointless to order the reinstatement of someone the employer would have 17 terminated, and will terminate, in any event and upon lawful grounds.” 513 U.S. 352, 362 18 (1995). Because Defendant did not do the necessary investigation, it did not have cause to 19 terminate Plaintiff for the operation of Bailzona in January 2014. Therefore, Defendant 20 must prove by a preponderance of the evidence that if Plaintiff was reinstated, Defendant 21 would initiate the requisite investigation, and both find lawful grounds on which to 22 terminate Plaintiff’s employment and actually do so. O’Day v. McDonnell Douglas 23 Helicopter Co., 79 F.3d 756, 759, 761 (9th Cir. 1996). The Court finds Defendant has met

24 2 Ms. Broderick testified that she was not informed of Plaintiff’s request to use sick leave 25 or temporarily switch positions until she was healthy. To the extent Plaintiff argues that Defendant thus did not engage in the interactive process, the Court is unpersuaded. The 26 failure to engage in the interactive process for a potential accommodation only may lead to liability where the “reasonable accommodation would have been possible.” Humphrey, 27 239 F.3d at 1137–38. For the reasons discussed, Plaintiff’s temporary reassignment or use of sick leave were not reasonable accommodations. 28 . 1 its burden of proof. 2 Here, the evidence shows that Plaintiff continued to fully operate Bailzona after her 3 reinstatement in direct violation of the terms of her employment. Plaintiff testified that she 4 accepted one new client, Jordan David Noyes, and wrote a bond for him in July 2013. (Trial 5 Tr. at 81:16-83:23.) She also went to court on his behalf in August. (Trial Tr. 84:3-13.) 6 Moreover, she admitted on cross-examination that, contrary to her direct testimony, she 7 wrote bonds for other clients besides Mr. Noyes after her reinstatement.3 (Trial Tr. at 92:2- 8 8.) This evidence contradicts Plaintiff’s testimony that she was in the process of winding 9 the business down and only took on one new client after APD reinstated her in June 2013. 10 Plaintiff’s operation of Bailzona violates the Certificate of Understanding that she 11 signed as well as APD’s Secondary Employment Policy. If Plaintiff had properly requested 12 to continue operating Bailzona, APD would have denied the request due to the clear 13 conflict of interest; however, Plaintiff did not even take the first step of submitting the 14 request form. Plaintiff provided multiple reasons for not submitting the form, including 15 that she planned to wind down the business, wanted her attorney to review the form, and 16 felt harassed due to Ms. Parker’s inclusion of Kristi Ward, the Division Director, on the 17 June 19 email. (Trial Tr. 104:17-106:9, 110:4-111:19.) At the same time, Plaintiff 18 explained that she continued operating the business because she had to close out certain 19 liabilities and fulfill other obligations. (Trial Tr. 67:24-68:10.) The Court does not find 20 these explanations credible. Plaintiff had multiple opportunities to inform Mr. Cimino or 21 her other supervisors of any complications with winding down the business. Instead, she 22 was unforthcoming and continued to write bonds and operate her business through at least 23 August 2013 in direct violation of APD’s policies. 24 Plaintiff’s other explanations for her continued operation of the bail bond business 25 are similarly unconvincing. Plaintiff testified that she only accepted Mr. Noyes as a client 26 27 3 Defendant presented Plaintiff with additional bail bonds that appeared to be issued by Bailzona. Because these exhibits were not previously disclosed, they were not entered into 28 evidence. However, they were permitted to be used as impeachment evidence. And during impeachment, Plaintiff admitted she had issued at least one other bond after reinstatement. 1 because she shared an office with his mother’s friend, who asked that she write him a bond. 2 Not wanting to explain to the woman that she was shutting her business down, Plaintiff 3 agreed. (Trial Tr. at 68:18-69:7.) Even if the Court believes Plaintiff’s testimony, it does 4 not excuse her blatant violation of APD’s terms of employment. And as revealed on cross- 5 examination, Plaintiff accepted additional clients during that time. 6 Lastly, Plaintiff argues that her continued operation of the bail bond business is not 7 a terminable offense because APD did not go through the required investigation and 8 provide Plaintiff with an opportunity to defend her actions. This argument fails because it 9 is irrelevant to the issue before the Court. Defendant does not contend that the bail bond 10 business is an alternative reason to terminate Plaintiff’s employment. Rather, it argues that 11 reinstatement would be futile because upon Plaintiff’s reinstatement, Defendant would 12 conduct an investigation that would find that Plaintiff’s conduct warranted termination. 13 Mr. Cimino testified at length why Plaintiff’s continued operation of the business – 14 including writing bonds for a defendant who had violated his probation – created a conflict 15 of interest, cast doubt on whether Plaintiff could be trusted with another person’s freedom, 16 and harmed the credibility of APD and the justice system as a whole. (Trial Tr. at 224:22- 17 226:23.) Mr. Cimino further confirmed that if the Court did find in favor of Plaintiff and 18 order her reinstatement, he would immediately place her on administrative leave and start 19 an investigation. (Trial Tr. at 226:24-227:13.) Plaintiff disputes that an investigation would 20 uncover termination-worthy conduct, pointing to Ms. Broderick’s testimony that she would 21 not terminate a hypothetical employee who “accepted no new clients, with one small 22 exception in early July…” and who only “was processing the paperwork… when things 23 were terminated.” (Broderick Tr. at 101:20-102:10.) But Ms. Broderick’s response to this 24 hypothetical is not dispositive. Mr. Cimino, who is now Chief of Probation, indicated that 25 he disagreed with this decision. (Trial Tr. at 242:3-12.) Moreover, the hypothetical does 26 not reflect the evidence presented at trial. Plaintiff accepted more than one client while on 27 leave, went to Court on at least one client’s behalf, and gave no indication through her 28 actions that she actually planned to wind down the business. Based on this evidence, the 1 || Court finds that any investigation would show that Plaintiff engaged in conduct warranting || the termination of her employment. Therefore, it would be futile to reinstate Plaintiff to her 3 || former position. 4 IT IS THEREFORE ORDERED finding Defendant is entitled to judgment on all of Plaintiffs claims. 6 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in favor of Defendant and close this case. 8 Dated this 26th day of August, 2021. ON

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