Narcissa Baymon v. CVS Caremark Pharmacy Incorporated, et al.

• Court: District Court, D. Arizona
• Decided: January 30, 2026
• Docket: 2:23-cv-00741
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Narciss a Baymon, ) No. CV-23-00741-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) CVS Caremark Pharmacy ) 12 Incorporated, et al., ) 13 ) ) 14 Defendants. )

15 Before the Court is Defendant CVS Caremark Pharmacy Inc.’s Motion for 16 Summary Judgment (Doc. 73) and accompanying Statement of Facts (Doc. 74). Plaintiff 17 Narcissa Baymon did not file a Response, and the time to do so has passed. The Court now 18 rules as follows.1 19 I. BACKGROUND 20 The facts are stated here in accordance with Defendant’s Motion and Statement of 21 Facts. (Docs. 73, 74). As noted above, Plaintiff did not oppose Defendant’s Motion for 22 Summary Judgment. In addition, the allegations in Plaintiff’s TAC may not be considered 23 because it is not a verified complaint. Cf. Schroeder v. McDonald, 55 F.3d 454, 460 (9th 24 Cir. 1995); see Cupples v. Cath. Charities Cmty. Servs. Inc., No. CV-22-08183-PCT-DWL, 25 2022 WL 16640683, at *2 (D. Ariz. Oct. 17, 2022) (“Although Plaintiff includes a 26

27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 certification at the conclusion of his complaint that it complies with Rule 11, that is not the 2 same thing as verification under penalty of perjury.”). 3 Therefore, Plaintiff has set forth no facts in opposition to Defendant’s Motion. In 4 assessing an unopposed summary judgment motion, “[t]he district court need not examine 5 the entire file for evidence establishing a genuine issue of fact, where the evidence is not 6 set forth in the opposing papers with adequate references so that it could conveniently be 7 found.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 8 Plaintiff is a former employee of Defendant CVS who worked as a Benefits 9 Verification Representative-Lead. (Doc. 74 at 1, ¶ 1). She was hired in November 2015. 10 (Id.). Plaintiff is a Black woman and “suffers from PTSD, anxiety, depression, and 11 bradycardia.” (Id.). This case surrounds Plaintiff’s claims of race and disability 12 discrimination against her former employer. 13 Throughout her employment at CVS, Plaintiff received several accommodations: a 14 “pregnancy-related reduced schedule” in 2016-2017, maternity leave in 2016, workstation 15 accommodations, leave in 2017 to care for a family member, and two periods of continuous 16 medical leave in 2018. (Id. at 6–7, ¶ 34). Relevant here is Plaintiff’s accommodation for 17 “eight hours of intermittent leave per month from January 8, 2019, to August 3, 2019, to 18 allow Plaintiff to attend medical appointments related to her depression, anxiety, and 19 PTSD.” (Id. at 7, ¶ 35). Defendant also gave Plaintiff “the ability to change her schedule 20 with manager approval.” (Id.). 21 Also relevant to this case are disciplinary infractions issued to Plaintiff during her 22 employment. On January 9, 2019, Plaintiff “received a Final Warning” from her supervisor 23 “for violating CVS’ Personal Electronic Device policy, being dishonest about violating the 24 policy, and engaging in combative behavior when receiving feedback.” (Id. at 2, ¶ 7). 25 Plaintiff raised concerns about the Final Warning to Human Resources, but a review 26 showed that the discipline was justified. (Id. at 3, ¶ 10). Plaintiff’s supervisor, Tameka 27 Brown (“Brown”), addressed Plaintiff’s absences from work through formal disciplinary 28 procedures. (Id. ¶ 12). Plaintiff’s supervisor issued a “Level I Coaching” for 16.25 1 unauthorized absences, which was later retracted after Brown learned that Plaintiff was 2 authorized for approved absences. (Id. at 4, ¶¶ 13–14). However, after Plaintiff arrived late 3 to work on five separate occasions and had several unapproved absences, Brown issued 4 another “Level I” to Plaintiff on May 10, 2019. (Id. ¶¶ 15–18). After continued unapproved 5 absences, Brown issued Plaintiff “a Level II-for accruing 8.5 unauthorized absences” on 6 July 1, 2019. (Id. at 5, ¶ 22). Plaintiff asserts that she was authorized to use her intermittent 7 leave for some of those absences. (Id. ¶ 23). 8 Brown also took disciplinary steps with respect to Plaintiff’s account processing 9 errors. (Id. ¶ 24). Brown “verbally counseled Plaintiff on three occasions for improperly 10 processing accounts” in April and May 2019, and Plaintiff eventually received a Level I 11 infraction for these errors. (Id. ¶¶ 25–27). On June 6, 2019, Brown issued Plaintiff a Level 12 III-Final Warning for a benefits verification error on a high-profile account. (Id. ¶¶ 28–29). 13 Finally, on July 9, 2019, Brown issued Plaintiff a Level IV infraction and terminated her 14 employed after Plaintiff “misquoted a patient’s copayment for a medication as $0.00.” (Id. 15 at 6, ¶¶ 30–32). 16 This lawsuit also concerns Plaintiff’s transfer and promotion attempts. In 2017, 17 Plaintiff applied but was not selected for several open positions within the company located 18 in Nashville, Tennessee. (Id. at 8, ¶ 42). The positions were Pharmacy Supervisor Field 19 Management, Customer Service Manager, and Customer Care Supervisor. (Id.). 20 During and after her employment, Plaintiff filed two internal ethics complaints 21 within the company and two charges of discrimination with the Equal Employment 22 Opportunity Commission (“EEOC”). First, Plaintiff filed ethics complaints on October 18, 23 2016 and May 30, 2017, which surrounded workplace conduct. (Id. at 7, ¶ 38). Plaintiff 24 also filed two EEOC charges. (Id. at 7–8). Plaintiff filed the first charge on September 25, 25 2017, stating that Defendant discriminated against her based on her race and disability, that 26 she was retaliated against for filing internal complaints, and she was not transferred or 27 promoted. (Id. at 7, ¶ 37). After she was terminated, Plaintiff filed a second charge, 28 asserting that Defendant discriminated against her based on race and disability, issued 1 unwarranted discipline, and terminated her employment. (Id. at 8, ¶ 41). 2 Plaintiff, proceeding pro se, initiated this action by filing a complaint on May 1, 3 2023. (Doc. 1). On May 17, 2024, Plaintiff filed a Third Amended Complaint (“TAC”), 4 the operative complaint in this matter. (Doc. 48). Plaintiff brings claims for (1) violation 5 of equal rights under Title VII, 42 U.S.C. § 1981, (2) retaliation in violation of 42 U.S.C. 6 § 2000e-2, and (3) termination of employment in violation of the Americans with 7 Disabilities Act under 42 U.S.C. § 12112(a). (Doc. 48 at 6–10). On August 15, 2025, 8 Defendant filed the Motion for Summary Judgment and Statement of Facts. (Docs. 73, 74). 9 On September 24, 2025, Plaintiff filed a Motion for Extension of Time to respond to the 10 Motion for Summary Judgment. (Doc. 76). The Court granted the Motion, setting a 11 response deadline of October 29, 2025. (Doc. 77). Plaintiff did not file a Response, and the 12 deadline to do so has passed. 13 II. LEGAL STANDARD 14 Summary judgment is appropriate if “the movant shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 16 Fed. R. Civ. P. 56(a). A party seeking summary judgment always bears the initial burden 17 of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 18 477 U.S. 317, 323 (1986). The moving party can satisfy its burden by demonstrating that 19 the nonmoving party failed to make a showing sufficient to establish an element essential 20 to that party’s case on which that party will bear the burden of proof at trial. See id. at 322– 21 23. When considering a motion for summary judgment, a court must view the factual 22 record and draw all reasonable inferences in a light most favorably to the nonmoving party. 23 Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). 24 “While a district court may not grant a motion for summary judgment solely because 25 the opposing party has failed to file an opposition . . . an unopposed motion for summary 26 judgment should be granted if the movant’s papers are sufficient by themselves to show 27 the absence of a dispute of material fact and that they are entitled to judgment as a matter 28 of law.” France v. Allman, No. 15-cv-04078-JSC, 2016 WL 7439577, at *1 (N.D. Cal. 1 Dec. 27, 2016) (citing Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 2 (9th Cir. 2001)). 3 III. DISCUSSION 4 Defendant moves for summary judgment on all of Plaintiff’s claims and asks the 5 Court to grant the Motion and dismiss the lawsuit in its entirety. (Doc. 73 at 19). 6 A. Claim One: Violation of Equal Rights in violation of Title VII and § 1981 7 1. Exhaustion of Administrative Remedies 8 As an initial matter, Defendant argues that several allegations included in Claim 9 One in the TAC were not exhausted through the EEOC charges and therefore should not 10 be considered by this Court. (Doc. 73 at 10). Specifically, Defendant asserts: “Plaintiff 11 raises several allegations that were not raised in either of her Charges, namely, that 12 Caremark took away some of her job responsibilities, denied her access to programs she 13 needed to perform her job, withheld her pay, and required her to use the exterior entrance 14 to the workplace.” (Id.). 15 “Allegations of discrimination not included in the plaintiff’s administrative charge 16 may not be considered by a federal court unless the new claims are like or reasonably 17 related to the allegations contained in the EEOC charge.” B.K.B. v. Maui Police Dep’t, 276 18 F.3d 1091, 1100 (9th Cir. 2002), abrogated on other grounds by Fort Bend Cnty., Tex. v. 19 Davis, 587 U.S. 541 (2019) (internal citations and quotations omitted). Courts may 20 “consider such factors as the alleged basis of the discrimination, dates of discriminatory 21 acts specified within the charge, perpetrators of discrimination named in the charge, and 22 any locations at which discrimination is alleged to have occurred.” Id. 23 In Plaintiff’s first EEOC charge, submitted September 25, 2017, she asserted that 24 she was denied reasonable requests for accommodations and transfers. (Doc. 74-1 at 85– 25 86). Plaintiff further explained that her manager instructed her to submit her resignation 26 and quit after she requested accommodations. (Id.). Plaintiff asserted that she applied for 27 several vacant manager positions, but Plaintiff’s manager “block[ed] or obstruct[ed]” her 28 from being promoted or transferred. (Id.). She believed that she was being discriminated 1 against due to race and disability and retaliated against for filing internal complaints. (Id.). 2 Plaintiff’s second EEOC charge was submitted on August 7, 2019. (Id. at 88–89). 3 Plaintiff asserted that she was disciplined despite having an accommodation for 4 intermittent absences. (Id. at 88). She also stated that other employees were not terminated 5 for making similar processing errors. (Id.) Finally, she asserted that she was discriminated 6 against based on race and disability and retaliated against for “repeatedly requesting time- 7 off,” “complaining about disability-based discrimination,” and “for filing a charge of 8 discrimination.” (Id. at 89). 9 The Court agrees with Defendants that the allegations in Plaintiff’s TAC that 10 “Caremark took away some of her job responsibilities, denied her access to programs she 11 needed to perform her job, withheld her pay, and required her to use the exterior entrance 12 to the workplace” were not exhausted through the EEOC charges. (Doc. 73 at 10; Doc. 48 13 at 4, 7, 8). Plaintiff’s charges focused on her requests for leave as an accommodation, the 14 alleged failure to transfer or promote Plaintiff, discipline and alleged retaliation in response 15 to Plaintiff’s approved absences, and her termination. (Doc. 74-1 at 85–86, 88–89). The 16 allegations specified above are not reasonably related to the charges, nor are they 17 “consistent with the plaintiff’s original theory of the case.” See B.K.B., 276 F.3d at 1100. 18 To the extent that Plaintiff brings claims under Claim One based on these allegations, the 19 Court will not consider them. 20 2. Discrimination under Title VII and § 1981 21 In Claim One of the Complaint, Plaintiff asserts a claim for discrimination under 22 Title VII of the Civil Rights Act of 1964 and under 42 U.S.C. § 1981.2 (Doc. 48 at 7–8). 23 Plaintiff asserts that she was “targeted and harassed as a person of color.” (Id. at 7, ¶ 10). 24 2 42 U.S.C. § 1981 “affords a federal remedy against discrimination in private 25 employment on the basis of race.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285 (1976). “Analysis of an employment discrimination claim under § 1981 follows the 26 same legal principles as those applicable in a Title VII disparate treatment case.” Fonseca 27 v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir. 2004). The Court will analyze the claims under Title VII and § 1981 together. 28 1 Specifically, Plaintiff appears to allege that the disciplinary infractions she received, her 2 termination, and the fact that she was not hired for the positions she applied for all resulted 3 from discriminatory treatment. (Id. at 6–9). 4 a. Disparate Treatment 5 Defendant counters that Plaintiff has not made a prima facie discrimination claim. 6 (Doc. 73 at 17–18). To establish a prima facie case of discrimination under Title VII, a 7 plaintiff must show evidence of either discriminatory treatment or impact. Garcia v. Spun 8 Steak Co., 998 F.2d 1480, 1484 (9th Cir. 1993). Under a theory of discriminatory treatment, 9 a plaintiff must provide evidence that a defendant had a discriminatory intent or motive. 10 Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 986 (1988). In the absence of direct 11 evidence of discrimination, the plaintiff may rely on the burden-shifting framework of 12 McDonnell Douglas Corp. v. Green to establish a prima facie case of discriminatory 13 treatment. 411 U.S. 792, 802 (1973). This framework requires showing that: (1) the 14 plaintiff belongs to a protected class, (2) the plaintiff was qualified for the position or 15 benefit, (3) the plaintiff was subject to an adverse employment action, and (4) similarly 16 situated people were treated more favorably than the plaintiff. Id.; see also St. Mary’s 17 Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Under the McDonnell Douglas framework, 18 “[t]he requisite degree of proof necessary to establish a prima facie case for Title 19 VII . . . claims on summary judgment is minimal and does not even need to rise to the level 20 of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 21 1994). 22 Defendant asserts that Plaintiff has failed to establish the second and fourth element 23 of a discrimination claim. (Doc. 73 at 17). As to the fourth element, Defendant argues that 24 Plaintiff is unable to establish that similarly situated people outside of Plaintiff’s class were 25 treated more favorably. (Id.). Defendant relies on Brown’s deposition testimony to show 26 that Brown issued disciplinary infractions to other employees for absences and processing 27 errors. (Doc. 73 at 17–18). Specifically, Brown issued formal coaching and counseling to 28 three other Representatives who she supervised. (Doc. 74-3 at 5); (Doc. 74-3 at 40–41, 42– 1 44, 45–47, 49–50). One Benefits Representative was issued two Level I infraction for 2 incorrect processing. (Id. at 40–44). Another Benefits Representative was issued a Level I 3 infraction for a processing mistake. (Id. at 45–47). Finally, a Benefits Representative was 4 issued a Level II infraction for incurring eight unscheduled absences. (Id. at 49–50). 5 Defendant asserts that two of those Representatives are white, meaning they are similarly 6 situated but outside Plaintiff’s protected class. (Doc. 73 at 17–18). Plaintiff has not alleged, 7 much less provided contradicting facts showing that others were treated more favorably. 8 Because the facts are undisputed and Plaintiff has not made a prima facie showing of 9 discrimination, Defendant is entitled to judgment as a matter of law. 10 b. Failure to Promote 11 Next, Defendant asserts that Plaintiff has also failed to establish discrimination 12 based on her failure to promote claims. To make out a prima facie case for failure to 13 promote under Title VII, a plaintiff must show that: (1) the plaintiff belongs to a protected 14 class; (2) the plaintiff applied for and was qualified for the position she was denied; (3) the 15 plaintiff was rejected; and (4) the employer filled the position with an employee not of 16 plaintiff’s class, or continued to consider other applicants whose qualifications were 17 comparable to plaintiff’s after rejecting plaintiff. Dominguez-Curry v. Nev. Transp. Dep’t, 18 424 F.3d 1027, 1037 (9th Cir. 2005). 19 In the TAC, Plaintiff asserts that CVS supervisors and management “deliberately 20 railroaded any internal, external transfer attempt that I was a qualified candidate for” and 21 denied her “the opportunity to transfer to another location which is a standard practice and 22 known widely across CVS platform.” (Doc. 48 at 8, ¶ 15; id. at 9, ¶ 20). Plaintiff’s claims 23 are based on her applications for three positions for which she was not selected: a Pharmacy 24 Supervisor Field Management position, a Customer Care Service Manager position, and a 25 Customer Care Supervisor position, all located in Nashville. (Doc. 74 at 8, ¶ 42; Doc. 74-4 26 at 3). Defendant argues that Plaintiff was not hired for these positions because she lacked 27 the necessary qualifications or a more qualified candidate was hired. 28 First, as to the Pharmacy Supervisor Field Management position, Defendant asserts 1 that Plaintiff cannot meet her burden on the second element because she was not qualified 2 for the position. (Doc. 73 at 14). The Pharmacy Supervisor Field Manager position required 3 a degree in pharmacy and the ability to “meet state specific licensure eligibility for a 4 pharmacist.” (Doc. 74-4 at 3, ¶ 6; Doc. 74 at 8, ¶ 43). Plaintiff does not have a pharmacy 5 degree. (Doc. 74-4 at 9–10). Therefore, Plaintiff has not shown that she was qualified for 6 the Pharmacy Supervisor position. 7 Next, Defendant argues that the Customer Care Service Manager and Customer 8 Care Supervisor positions were filled by more qualified candidates who belong to the same 9 protected class as Plaintiff and the employee selected had higher qualifications than 10 Plaintiff. (Doc. 73 at 14). The candidates who were selected for these positions were both 11 already employed in the role of supervisors. (Doc. 74-4 at 4–5, ¶¶ 14, 17; Id. at 56, 85). In 12 contrast, Plaintiff was employed “in a lead role, which is below that of a supervisor.” (Id. 13 at 12). In addition, both of the candidates who were selected are African-American, 14 meaning they are in the same protected class as Plaintiff. (Doc. 74-2 at 311, 314). 15 Therefore, Plaintiff cannot establish the fourth element of her claim. 16 Defendant sets forth undisputed facts and has shown that Plaintiff has not made 17 sufficient prima facie claims. Therefore, Defendant is entitled to summary judgment on 18 Plaintiff’s Title VII and § 1983 discrimination claims. 19 B. Retaliation in violation of Title VII 20 In Claim Two, Plaintiff brings a claim for retaliation under Title VII based on her 21 filing of internal ethics complaints and EEOC charges. Plaintiff alleges that Defendant 22 “denied [her] opportunities” to transfer to another role within the company. (Doc. 48 at 9, 23 ¶ 20). Plaintiff also alleges that “[a]fter filing the second charge of retaliation not even a 24 week later [she] was terminated.”3 (Doc. 48 at 8, ¶ 18). To establish a prima facie case of 25 3 Based on the facts before the Court, it does not appear that Plaintiff filed any 26 complaint or charge in the week prior to her termination. As previously stated, Plaintiff 27 filed internal complaints in 2016 and 2017. (Doc. 74-1 at 7). In addition, Plaintiff filed one charge with the EEOC while she was employed, on September 25, 2017. (Doc. 74 at 7). 28 Plaintiff was terminated on July 9, 2019. (Id. at 6; Doc. 74-1 at 85). She then filed a second 1 retaliation, Plaintiff must show that: (1) she engaged in protected activity, (2) she suffered 2 an adverse employment action, and (3) the two are causally linked. See Porter v. Cal. Dep’t 3 of Corr., 419 F.3d 885, 894 (9th Cir. 2005). “If [Plaintiff] provides sufficient evidence to 4 show a prima facie case of retaliation, the burden then shifts to the [defendant] to articulate 5 a legitimate, non-retaliatory reason for its actions.” Id. Then, if Defendant provides a 6 legitimate reason, Plaintiff “bears the ultimate burden of submitting evidence indicating 7 that the . . . proffered reason is merely a pretext for a retaliatory motive.” Id. 8 1. Internal Complaints 9 First, Plaintiff alleges that she was not selected for the positions in Nashville 10 because of internal complaints she filed in October 2016 and May 31, 2017. (Doc. 74-1 at 11 7; Doc. 74 at 7).4 Defendant argues that Plaintiff’s internal complaints do not count as a 12 protected activity because “Plaintiff did not allege, in either of these complaints, that 13 Caremark was subjecting her to discrimination based on her race or alleged disability.” 14 (Doc. 73 at 13). Defendant also argues that Plaintiff has not shown a causal link between 15 the alleged protected activity and the adverse actions. (Id. at 18–19). 16 “An employee engages in protected activity for purposes of Title VII when he 17 opposes conduct that he reasonably believes to be an unlawful employment practice, or 18 when he participates in an EEOC investigation or proceeding.” Maner v. Dignity Health, 19 350 F. Supp. 3d 899, 906 (D. Ariz. 2018). Protected activities may include “the filing of a 20 charge or a complaint, or providing testimony regarding an employer’s alleged unlawful 21 practices, as well as engaging in any other activity intended to ‘oppose[]’ an employer’s 22 discriminatory practices.” Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 23 1197 (9th Cir. 2003) (citing 42 U.S.C. § 2000e–3(a)). 24 In Plaintiff’s October 18, 2016 ethics complaint, she stated that her manager “told 25 the individuals that he personally likes to apply” for an open position in the department. 26

27 EEOC charge on August 7, 2019. (Doc. 74-1 at 88). 4 Plaintiff applied for the positions in Nashville on March 13, 2017, April 21, 2017, 28 and August 9, 2017. (Doc. 74-4 at 3–4, ¶¶ 5, 10, 15). 1 (Doc. 74-1 at 156). In her deposition testimony, Plaintiff indicated that this complaint 2 surrounded “favoritism.” (Id. at 79). In her May 30, 2017 ethics complaint, Plaintiff again 3 raised concerns about her supervisor, stating that he mistreats her and other employees. (Id. 4 at 161–62). Specifically, Plaintiff described an incident where she felt that her supervisor 5 was “trying to force her into resigning” after she informed of a leave request. (Id. at 162). 6 Although these complaints do not directly allege race or disability discrimination, they 7 describe employment practices that Plaintiff believed to be unlawful. See Ekweani v. 8 Ameriprise Fin., Inc., No. CV-08-01101-PHX-FJM, 2010 WL 481647, at *6 (D. Ariz. Feb. 9 8, 2010) (“An employee need not utter magic words to put his employer on notice that he 10 is complaining about unlawful discrimination.”) (citation omitted). The internal complaints 11 constitute a protected activity. 12 However, the Court agrees that Plaintiff has not made the requisite showing on the 13 third element of her retaliation claim: a causal link between the filing of the complaints and 14 any adverse action. To show causation, Plaintiff must prove “by a preponderance of the 15 evidence that the adverse employment action would not have occurred in the absence of 16 the protected activity.” EEOC v. Evergreen All. Golf Ltd., LP, No. CV 11-0662-PHX-JAT, 17 2013 WL 4478870, at *11 (D. Ariz. Aug. 21, 2013) (citing Univ. of Texas Southwestern 18 Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). Here, there are no facts before the Court 19 that showing, by a preponderance of the evidence, that Plaintiff’s internal ethics complaints 20 were the cause of any adverse action she faced. 21 Even assuming Plaintiff could make a prima facie case of retaliation, Defendant 22 argues that there are legitimate, nondiscriminatory reasons that explain why Plaintiff was 23 not transferred or promoted, received disciplinary infractions, and was eventually 24 terminated. See Porter, 419 F.3d at 894. As to the alleged failure to promote, Defendant 25 explains that Plaintiff was either not qualified for the positions or more qualified candidates 26 were ultimately selected. (Doc. 73 at 14). Regarding the corrective actions Plaintiff 27 received, Defendant asserts that “Plaintiff repeatedly failed to meet the expectations of her 28 position in that she had behavioral issues, exhibited excessive absenteeism (over and 1 beyond her protected time off from work) and demonstrated difficulties in completing her 2 [verification] work accurately.” (Id. at 17). With these facts, Defendant has offered 3 legitimate, non-discriminatory reasons behind the actions that Plaintiff alleges were 4 retaliatory. In assessing the last step of the burden shifting framework, Plaintiff has not 5 provided evidence showing that these explanations are merely pretext. See Porter, 419 F.3d 6 at 894. Because Plaintiff cannot prove that the alleged retaliatory actions were caused by 7 the protected activities, the retaliation claims fails. 8 2. EEOC Charge 9 Plaintiff also appears to allege that she was retaliated against for filing a charge with 10 the EEOC. (Doc. 48 at 8, ¶ 18). Plaintiff filed her first charge with the EEOC on September 11 25, 2017. (Doc. 74 at 7, ¶ 37). Defendant does not dispute that filing a charge with the 12 EEOC is a protected activity or that Plaintiff suffered an adverse employment action. (Doc. 13 73 at 18–19). But Defendant again argues that Plaintiff has not shown that the EEOC charge 14 “was a ‘but for’ cause of the alleged adverse action.” (Id. at 18). 15 For the same reasons stated above, the retaliation claim based on the EEOC charge 16 also fails. The evidence before the Court is undisputed, and Plaintiff has not shown that 17 she suffered adverse action because of her EEOC charge. See Porter, 419 F.3d at 894. Even 18 if she had, Defendant has provided legitimate, non-discriminatory explanations for the 19 adverse actions. Id. Because the facts are undisputed and Plaintiff has not established the 20 causation element of her claims, Defendant is entitled to summary judgment on these 21 claims. 22 C. Termination in violation of ADA 23 In Claim Three, Plaintiff brings a claim for “Termination of Employment in 24 Violation of ADA, 42 USC § 12112(a).” (Doc. 48 at 9–10). The crux of her claim is that 25 Defendant “terminate[d] [her] employment after [she] requested reasonable 26 accommodation” of her disability.” (Id. at 10, ¶ 26). 27 1. Termination 28 The ADA prohibits discrimination “against a qualified individual with a disability 1 because of the disability.” 42 U.S.C. § 12112(a). “To prevail on her disability 2 discrimination claim, [Plaintiff] must establish: (1) that she is a disabled person within the 3 meaning of the ADA; (2) that she is qualified, with or without reasonable accommodation, 4 that is, able to perform the essential functions of the job; and (3) that the employer 5 terminated her because of her disability.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 6 271 (9th Cir. 1996). “An employee bears the burden of proving that he was discriminated 7 against ‘because of’ a disability.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 994 (9th 8 Cir. 2007). Specifically, Plaintiff must show that the “adverse employment action would 9 not have occurred but for the disability.” Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th 10 Cir. 2019). 11 Defendant argues that Plaintiff has failed to establish the second and third elements 12 of her disability discrimination claim. (Doc. 73 at 17). Defendants assert that Plaintiff was 13 not performing satisfactorily in her role, as demonstrated through her absences and 14 processing errors. (Id.). Indeed, as described in more detail above, the facts before the Court 15 show several disciplinary infractions leading up to Plaintiff’s termination. (Doc. 74 at 3– 16 6). Plaintiff was terminated one day after Brown discovered that Plaintiff made a 17 processing error and misquoted a patient’s copayment. (Id. at 6, ¶¶ 30–32). Plaintiff has 18 not provided the Court with any contradicting facts showing that she was terminated 19 because of her disability. Therefore, Plaintiff has not established a prima facie case of 20 disability discrimination, and Defendant is entitled to summary judgment. 21 2. Failure to Accommodate 22 In the Motion for Summary Judgment, Defendant also argues that Plaintiff has failed 23 to establish a claim for disability discrimination based on the alleged failure to 24 accommodate her disabilities. (Doc. 73 at 15–18). “Plaintiff’s claim is that, although she 25 was granted intermittent leave to attend medical appointments, she was later disciplined 26 for dates which counted as authorized leave.” (Id. at 15). 27 “The ADA defines discrimination to include an employer’s failure to make a 28 reasonable accommodation.” Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 799 (9th 1 Cir. 2017) (citation and alteration omitted). To make this claim, a plaintiff must establish 2 that the employer failed to make reasonable accommodations for the plaintiff’s disability. 3 See Piccarreta v. Harmony Hospice of Scottsdale LLC, No. CV-12-00533-PHX-DGC, 4 2013 WL 6118641, at *2 (D. Ariz. Nov. 21, 2013); Chapman v. Nev. Dep’t of Transp., 5 3:25-CV-00061-ART-CLB, 2025 WL 854753, at *1 (D. Nev. Mar. 18, 2025). “Whether 6 an accommodation is reasonable ‘depends on the individual circumstances of each case, 7 and requires a fact-specific, individualized analysis of the disabled individual’s 8 circumstances and the potential accommodations.’” Dunlap, 878 F.3d at 799 (citing Mark 9 H. v. Hamamoto, 620 F.3d 1090, 1098 (9th Cir. 2010)). Once the employer knows of the 10 need for an accommodation, the employer must “engage in an interactive process with the 11 employee to identify and implement appropriate reasonable accommodations that will 12 enable the employee to perform her job duties.” Id. (citing Humphrey v. Mem’l Hosp. 13 Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001)). 14 Defendant asserts that it “did allow Plaintiff, as an accommodation, the ability to 15 take eight hours of intermittent leave per month from January 8 to August 3, 2019, for 16 purposes of attending medical appointments related to her depression, anxiety, and PTSD.” 17 (Doc. 73 at 16; Doc. 74-1 at 153–54). As a part of this accommodation, Plaintiff was also 18 allowed to change her schedule to attend appointments with her manager’s approval. (Doc. 19 74-1 at 153). Defendant asserts that Plaintiff agreed that the accommodation was sufficient. 20 (Id. at 145). Defendant also argues that Brown “confirmed, prior to disciplining Plaintiff, 21 that the absences which were ultimately included were not absences that had been approved 22 as part of Plaintiff’s leave case.” (Doc. 73 at 16; Doc. 74 at 4, ¶¶ 13–18). 23 The facts show that one disciplinary attendance infraction was retracted for 24 including authorized absences. (Doc. 74-1 at 44). Before issuing the next Level I infraction, 25 Brown consulted with the reasonable accommodations partner “who had been assigned to 26 Ms. Baymon’s open leave case and confirmed that none of [the] absences had been 27 approved as part of her leave case.” (Doc. 74-3 at 3, ¶¶ 8–10). Brown did the same for the 28 following attendance infraction that was issued as a Level II. (Id. at 3–4, 11–13). These 1 | undisputed facts show that Defendant provided Plaintiff with reasonable accommodation through intermittent leave and did not discipline Plaintiff for using that leave. Therefore, Defendant is entitled to judgment as a matter of law on Plaintiff's failure to accommodate 4| claim. 5 IV. CONCLUSION 6 For the reasons stated above, the Court will grant the Motion. There are no disputed 7 | issues of material fact. Defendant has also shown that it is entitled to judgment as a matter 8 | of law on all three of Plaintiffs claims. Therefore, Defendant is entitled to summary judgment, and the action will be dismissed. 10 Accordingly, 1] IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 73) is 12| granted. 13 IT IS FURTHER ORDERED that this action be terminated and dismissed with 14) prejudice. 15 Dated this 30th day of January, 2026. 16

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