Equal Employment Opportunity Commission v. United Parcel Service Incorporated

MOTION for Summary Judgment

D. Ariz.January 10, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Christine Burns #017108 David T. Barton #016848 Laura A. Freeman #021331 BURNSBARTON LLP 45 West Jefferson, 11th Floor Phoenix, AZ 85003 Phone: (602) 753-4500 christine@burnsbarton.com david@burnsbarton.com laura@burnsbarton.com Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, vs. United Parcel Service, Inc., a Delaware corporation, Defendant. Civil Action No. 2:15-cv-01935-GMS DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56, Defendant United Parcel Service, Inc. (“UPS”) moves for summary judgment on all of Plaintiff’s claims. Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), alleges three causes of action under the Americans with Disabilities Act (“ADA”), two of which require it to establish that Desiree Barnabas is disabled within the meaning of the ADA. She is not, so these claims necessarily fail. Her third claim for retaliation fails because she did not suffer an adverse action when she removed herself from work at UPS and refused to return. This motion is supported by the following Memorandum of Points and Authorities, UPS’s separate Statement of Facts in Support of Its Motion for Summary Judgment (“SOF”), and the Court’s entire record. Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 1 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF UNDISPUTED FACTS a. Barnabas is not actually disabled – and never has been. During her deposition in this lawsuit, Barnabas testified that her only limitation is “executive and working memory.” [SOF ¶ 1] When asked to describe how her memory limitations impact her daily life, Barnabas testified, “there's little things here and there. They're not mind blowing. They are not life altering.” [SOF ¶ 2] The only example she could provide of how her memory limitations impact her life was that she sometimes forgets if she shaved both legs in the shower. [SOF ¶ 3] Barnabas exercises, drives, travels, volunteers at a museum and a local animal rescue, lives a fulfilled life with her spouse, and participates in family activities. [SOF ¶ 4] Barnabas testified that she has no physical limitations or any issues with seeing, hearing or taking care of herself, including driving. [SOF ¶ 5] Despite her memory issues, she can follow directions, she follows routines, she can concentrate and memorize. [SOF ¶ 6] She claims she has no challenges with reading, concentrating or communicating. [SOF ¶ 7] Since leaving UPS, Barnabas has had numerous jobs, performed well in all of them, and has had no issues with her memory in any position. [SOF ¶ 8] She has never sought an accommodation for her memory in any other position with any other employer. [SOF ¶ 9] Each of her jobs has required her to use a computer, which she says she has utilized without problems except on one occasion when she asked a manger to show her how to do something twice, but then used the program without issue. [SOF ¶ 10] She has never sought an accommodation related to thinking, concentrating, or memory concerns from any other employer. [SOF ¶ 11] She is currently employed as an Account Executive1 at Freedom Financial Network, where she has worked for over two years. 1 Barnabas’ last position at UPS was also as an Account Executive. Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 2 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- [SOF ¶ 12] She did not inform Freedom Financial Network about her memory impairments before it hired her and she has no limitations in performing her current job; she is able to perform all of her essential job functions. [SOF ¶ 13] Importantly, Barnabas testified at her deposition that her medical condition has not changed since she left UPS. [SOF ¶ 14] b. Barnabas had a successful career at UPS. Barnabas began working as a part-time loader for UPS in 2005. [SOF ¶ 15] In 2006, she transferred out of operations and into UPS’s Business Development or sales department. [SOF ¶ 16] On January 1, 2008, Barnabas became a Sales Support Representative (“SSR”). [SOF ¶ 17] UPS’s sales department used a customer relationship management (“CRM”) tool called TEAMS. [SOF ¶ 18] TEAMS organizes and tracks all data related to UPS’s sales activities. [SOF ¶ 19] Barnabas admits that the effective use of TEAMS was an essential function of sales positions at UPS. [SOF ¶ 20] Prior to becoming an SSR in 2008, Barnabas was provided training and given an assessment on TEAMS. [SOF ¶ 21] She scored 95-percent on the assessment, demonstrating her ability to use the tool. [SOF ¶ 22] In her position as an SSR, Barnabas received additional training in the form of “coaching rides”; each of these coaching rides included feedback and training on TEAMS. [SOF ¶ 23] b. UPS Promoted Barnabas to an Account Executive Position. In December 2010, UPS consolidated certain districts and eliminated the SSR position. [SOF ¶ 24] During this reorganization, UPS offered Barnabas the opportunity to move up into a supervisory Account Executive (“AE”). Barnabas took the AE position. [SOF ¶ 25] Her supervisor at the time was Melody Jacobs. [SOF ¶ 26] In the AE role, Barnabas continued to receive sales training, including supplemental training on TEAMS. [SOF ¶27] This included additional coaching rides and the establishment of a Daily Routine Sheet from Jacobs, which required Barnabas to report to the office on specific Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 3 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- days, attend weekly planning meetings and continue to improve her use of TEAMS. [SOF ¶ 28] In June 2011, Barnabas took a short-term disability leave of absence for a knee injury. [SOF ¶ 29] When she returned from leave on September 6, 2011, she reported to a new supervisor, Kelly Kwasigroch Allen (“Allen”). [SOF ¶ 30] Barnabas was concerned when she learned that she was reporting to Allen and she indicated that she would rather report to someone else. [SOF 31] Barnabas knew Allen before she became an AE and she did not have a good first impression of her. [SOF 31] She also believed Allen had been inappropriately promoted as a result of a family connection with someone in the UPS corporate office. [SOF ¶ 31] As part of the transition, Allen sat down with Barnabas and reviewed the general responsibilities of an AE. [SOF ¶ 32] Allen also provided Barnabas with a specific action plan to help her succeed. [SOF ¶ 33] This action plan included starting and ending her day at a UPS center and completing a Weekly Planning Routine Checklist. [SOF ¶ 34] Barnabas signed the action plan in acknowledgement of UPS’s expectations; she did not indicate that she was unable to meet these expectations or that she needed an accommodation to do so. [SOF ¶ 35] On the same day she met with Allen, Barnabas emailed Keith Lorenzen in Human Resources, to complain about Allen’s expectations. [SOF ¶ 36] A few days later, on September 16, 2011, Barnabas submitted an internal ethics complaint against Allen, complaining of a “possible promotion for another coworker due to relatives in corporate.” [SOF ¶37] Barnabas also complained about Allen’s management style: she sent emails to Human Resources and to her former manager, Christy Alanis. [SOF ¶ 38] In none of these complaints did she mention that she was unable to perform her job because of a disability or that she needed an accommodation or that Allen was treating her badly due to a disability. [SOF ¶ 39] Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 4 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- c. Barnabas Took Herself out of Service and Never Returned. On September 21, 2011, Allen conducted an employee review with Barnabas that included instructions on improving her performance with specific references to TEAMS and timely report completion. [SOF ¶ 40] Barnabas signed the review and then immediately complained to Jason Farentheil in Human Resources regarding Allen’s management style. [SOF ¶ 41] She again reported her belief that Allen had been promoted due to a relative’s position at UPS. [SOF ¶ 41] During this conversation, Barnabas stated for the first time that she was having memory issues as a result of brain surgeries performed in 2006. [SOF ¶ 42] She claimed that her memory issues were preventing her from doing her job because she could not properly work with TEAMS. [SOF ¶ 42] Ferenthiel told Barnabas that she may qualify for an ADA accommodation related to TEAMS. [SOF ¶ 43] He also told her she may qualify for the benefits available under UPS’s short and long-term disability policies. [SOF ¶ 44] UPS sent Barnabas the paperwork necessary to secure an ADA accommodation, but she never returned it. [SOF ¶ 45] On October 20, 2011, Barnabas met again with Ferentheil; this meeting was also attended by HR Manager, Keith Lorenzen and was documented by Ferentheil. [SOF ¶ 46] During this meeting, Barnabas told Lorenzen and Ferentheil that her medical condition was prohibiting her from doing parts of her job. [SOF ¶ 47] Barnabas testified during her deposition that she has no recollection of the October 20, 2011 meeting. [SOF ¶ 47] But she did apply for disability leave benefits on October 21, 2001. [SOF ¶ 48] Her application was denied on November 23, 2011 because she failed to provide supporting medical documentation. [SOF ¶ 48] UPS sent ADA paperwork to Barnabas for a second time on December 22, 2011. [SOF ¶ 49] She never returned ADA paperwork to UPS and she does not recall requesting that her doctors complete it. [SOF at ¶ 50] In February 2012, two months after leaving UPS, Barnabas provided UPS with a note from her Neurologist, Dr. Kris A. Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 5 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Smith. [SOF ¶ 51] The note indicated “reductions in aspects of attention and working memory, executive function and cognitive efficiency[.]” [SOF ¶ 52] Dr. Smith also observed “she may benefit from having extra time at work for learning and completing more complex tasks and projects” yet concluded that “[t]he test results document no major deficiencies and that she may perform her job duties although possibility with extra time.” [SOF ¶ 53] Barnabas only asked her doctor to write a letter regarding her limitations. [SOF ¶ 54] She did not provide Dr. Smith with a list of her essential job functions because she did not feel that they “came into play,” he didn’t ask for them, and it never occurred to her to do so. [SOF ¶ 55] On March 8, 2012, UPS held an ADA “checklist” meeting with Barnabas to speak with her directly about her abilities and restrictions and identify any suitable accommodations that would allow her to return to work. [SOF ¶ 56] During that meeting, the parties walked through UPS’s Accommodation Checklist form. [SOF ¶ 57] The purpose of the Checklist form is to help UPS gather specific information about an employee’s abilities and limitations. [SOF ¶ 58] During that meeting, Lorenzen and Occupational Health Supervisor Gayle Brown reviewed Barnabas’ doctors note and worked through the Checklist document—Barnabas completing some parts, and Lorenzen completing others. [SOF ¶ 59] Barnabas testified that she filled out the Checklist form honestly and truthfully. [SOF ¶ 60] Barnabas suggested a transfer to operations as an accommodation. [SOF ¶ 61] So, during the meeting, Lorenzen walked through the job descriptions of Barnabas’ current job, and the operations job she wanted. [SOF ¶ 61] Barnabas identified which essential functions of her job she could perform with or without an accommodation, and those she could not. [SOF ¶ 61] She did the same for the operations job she wanted. Lorenzen checked off the essential functions Barnabas could perform, and circled those that Barnabas said she could not perform with our without an accommodation. Barnabas acknowledged with her signature that Lorenzen had completed the forms and marked-up the job descriptions accurately. [SOF ¶ 62] Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 6 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- UPS evaluated Barnabas’ requested accommodations and her stated limitations and determined that there were not any available positions that she could perform with our without accommodation, given the broad limitations she described in the Checklist meeting. [SOF ¶ 63] On April 5, 2012, UPS sent Barnabas a letter informing her that, based upon her described limitations, it was unaware of any available position for which she was qualified and capable of performing the essential functions, with or without reasonable accommodation. [SOF ¶ 64] In the letter, UPS advised Barnabas that it would continue to look for 6 months for a vacant position for which Barnabas may be qualified. And it invited Barnabas to inform UPS if her medical condition or abilities changed. [SOF ¶ 65] Lorenzen sent Barnabas another letter on September 6, 2012 in which he again invited her to explore a return-to-work through the accommodation process and asked that she advise UPS if her medical condition had changed. [SOF ¶ 66] On September 9, 2012, Barnabas responded to Lorenzen saying, “it is not in my best interest to be employed by UPS.” [SOF ¶ 67] Although she remains a current but inactive UPS employee today, Barnabas has never advised UPS that her medical condition changed; nor has she monitored open positions at UPS nor contact the company about an open position. [SOF 68, 69] II. LEGAL ARGUMENT A. Summary Judgment Standard One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 7 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). B. Plaintiff’s Claims Under the ADA Cannot Survive Summary Judgment. The ADA prohibits discrimination against qualified individuals with a disability. 42 U.S.C. § 12112(a). “To survive a motion for summary judgment, a party in an ADA case must be able to show sufficient facts to meet his or her burden of production of evidence on each element of the prima facie case.” Willis v. Pacific Maritime Ass'n, 162 F.3d 561, 565 (9th Cir. 1998). The EEOC alleges UPS failed to provide Barnabas with a reasonable accommodation under the ADA (Count I), UPS terminated or constructively discharged Barnabas because of her disabilities (Count II), and UPS retaliated against Barnabas because of her requests for reasonable accommodations (Count III). The ADA defines “disability” as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2). For the failure to accommodate claim (Count I), Barnabas must prove that she is actually disabled or that she has a record of a disability–not that UPS regarded her as disabled. 42 U.S.C. § 12201(h). 1. Barnabas is Not Actually Disabled – Nor Entitled to an Accommodation (Count I). To establish a prima facie case for failure to accommodate under the ADA the EEOC must demonstrate: (1) Barnabas is disabled within the meaning of the ADA; (2) she was qualified to perform the essential functions of her job with or without reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003). When the ADA was amended in 2008, Congress clarified that accommodations are reserved for individuals who are actually disabled or those who have a record of a disability. Individuals who are simply “regarded as” disabled are not entitled to Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 8 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- accommodation. 42 U.S.C. § 12201(h); see also, 29 C.F.R. §§ 1630.2(o)(4) and 1630.9(e). The undisputed facts demonstrate Barnabas is not actually disabled within the meaning of the ADA. The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. 29 C.F.R. § 1630.2(g)(1) “A ‘major life activity’ must be of ‘comparative importance’ and ‘central to the life process itself.’” Quinones v. Potter, 661 F.Supp.2d 1105, 1119 (D. Ariz. 2009)(quoting Fraser v. Goodale, 342 F.3d 1032, 1039 (9th Cir. 2003)). “Major life activities” include but are not limited to “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). Major life activities also include the operation of a major bodily function, including: “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions” 42 U.S.C. § 12102(2)(A). “[A]n impairment is a disability within the meaning [of the ADA] if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Although an impairment “need not prevent, or significantly or severely restrict, the individual from performing a major life activity ... not every impairment will constitute a disability” within the meaning of the ADA. 29 C.F.R. § 1630.2(j)(1)(ii). Here, Barnabas alleges that she has a disability as a result of brain surgeries she had in 2006. However, following her surgery, she returned to work and performed her job duties well until she was assigned to work with supervisor Allen in 2011. Barnabas then self-reported that she could not do her job and submitted a letter from her physician that indicated only that Barnabas may have “reductions in aspects of attention and working memory, executive function and cognitive efficiency[.]” [SOF ¶ 52] Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 9 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- Nothing in the record suggests that Barnabas’ “executive and working memory” limitations substantially limit her ability to think and concentrate—indeed, her own admissions contradict that she is so limited. Barnabas’ memory issues are minimal, at best, and insufficient to qualify her as disabled under the ADA. Barnabas herself described them as “little things” and “not life altering.” She noted that on a singular occasion she asked a manager to show her how to do something, but then never had to ask again. Indeed, the only example she could provide regarding how her memory issues impacted her life was occasionally forgetting to shave one leg. [SOF ¶ 3] These limitations cannot support a conclusion that Barnabas’s memory issue was significant compared to the average person. Barnabas’s chief complaint, as evidenced by her requested accommodation to move out of her AE position only once she began working for Allen, was that she could no longer work for Allen. Whatever Barnabas’s issues were with Allen, conflicts with a manager are not recognized as a disability under the ADA. The major life activity of working is not “substantially limited” if a plaintiff merely cannot work under a certain supervisor. Weiler v. Household Finance Corp., 101 F.3d 519, 524 (1996) (plaintiff not disabled when she asked only to not work for one particular supervisor); Adams v. Alderson, 723 F.Supp. 1531, 1531–32 (D.D.C.1989) (personality conflict with an “antagonizing supervisor” not a disability under the ADA). Moreover, “exclusion from one position of employment does not constitute a substantial limitation of a ‘major life activity.’ Weiler, 101 F.3d at 525. By Barnabas’ own admissions, there is no evidence sufficient for a jury to determine that she was substantially limited compared to the average person. Her own statements establish that her memory issues are decidedly minor. After she left UPS, she secured other work, holding various jobs in retail, healthcare, and the financial industry, all requiring computer skills and some level of concentration and thinking. There is simply no evidence on Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 10 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- which to base a finding that Barnabas’ restrictions are significant restrictions compared to the average person. In many respects, this case is similar to Weaving v. City of Hillsboro, 763 F.3d 1106 (9th Cir. 2014). There, the Ninth Circuit considered whether the District Court improperly denied summary judgment against a Hillsboro Oregon police officer who was discharged, he alleged, because his attention deficit hyperactivity disorder (ADHD) made it difficult for him to work effectively and interact with others. The court noted that the 2008 amendments to the ADA “relaxed the standard for determining whether a plaintiff is substantially limited.” Weaving, 763 F. 3d at 1112. But the court held, nonetheless, that Weaving had not proven that his ADHD substantially limited him “as compared to ‘most people in the general population.’” Id., quoting, 29 C.F.R. § 1630.2(j)(1)(ii). Like Weaving, Barnabas is capable of working effectively and living a completely normal life. Her limitations are minimal—and do not substantially limit any major life activity. Because Barnabas does not have an actual disability, Count I for Failure to Accommodate must be dismissed as a matter of law. 2. UPS Did Not Regard Barnabas as Having a Disability so Her Claim for Discrimination Also Fails (Count II). To succeed on a discriminatory discharge claim under the ADA, the EEOC must prove (1) Barnabas is disabled within the meaning of the ADA; (2) she was qualified to perform the essential functions of her job with or without reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. 42 U.S.C. § 12112(a); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007). Because Barnabas is not actually disabled, as set forth above, the EEOC may argue that she has a record of a disability, or that UPS regarded her as disabled because of the brain surgeries she underwent in 2006. But the facts show that UPS returned Barnabas to work after those surgeries, promoted her, and evaluated her work (including her work with TEAMS) as satisfactory after those surgeries. There is no evidence that Barnabas’ Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 11 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- brain surgeries caused UPS to negatively evaluate her performance or remove her from the workforce. The purpose of the “regarded as” clause in the ADA is to prevent employers from making unsubstantiated assumptions about medical conditions without exploring those conditions with the employee or the employee’s physician. For example, a “regarded as” claim could arise if an employer falsely believed that a deaf employee could never work in a job requiring the use of a phone. The “essence of the regarded as claim is that the employer was acting on a misperception.” Powers v. GTE California, Inc., 202 F.3d 278 (9th Cir. 1999). The rationale behind the “regarded as” prong is to protect individuals who may be treated different in employment due to "myths, fears and stereotypes associated with disabilities.” Jacques v. DiMarzio, Inc., 200 F.Supp.2d 151, 167 (E.D.N.Y. 2002) That is not what happened here. UPS put Barnabas on a leave of absence only after she told UPS she could no longer do essential parts of her job. It then met with her to discuss her abilities and limitations and based its decision not to transfer her upon information she provided from her doctor and during the checklist meeting. It would be utter nonsense to allow an employee who is not actually disabled to prove disability solely by her own report. Awareness of an employee’s medical condition is insufficient to prove that she was regarded as disabled. Olson v. Dubuque Community Sch. Dist., 137 F.3d 609, 612 (8th Cir. 1998). Here, to show that UPS regarded her as disabled, Barnabas will necessarily need to point to her own statements concerning her physical condition – because that is the only evidence she has to demonstrate that anyone ever considered her physical condition in relation to her employment. UPS took no action to “accommodate” Barnabas or otherwise limit her work until she came to UPS in 2011 and reported that her 2006 surgery made it impossible for her to do essential functions of her job. Should the EEOC suggest that UPS’s response to Barnabas’ report proves that UPS Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 12 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- regarded Barnabas as disabled, one may fairly question what UPS should have done in response. Had UPS ignored Barnabas, it certainly would have been liable for failing to respond to her stated limitations. Having responded as required, the EEOC should not be allowed to use that response as evidence that UPS regarded Barnabas as disabled. 3. Adverse Action Claims Cannot be Self-Inflicted (Count III). To establish a prima facie case of retaliation under the ADA, an employee must show that: (1) he or she engaged in a protected activity; (2) he or she suffered an adverse employment action; and (3) there was a causal link between the two. Brown v. City of Tucson, 336 F.3d 1181, 1186–87 (9th Cir. 2003). If the employee establishes a prima facie case, the employee will avoid summary judgment unless the employer offers legitimate reasons for the adverse employment action, whereupon the burden shifts back to the employee to demonstrate a triable issue of fact as to whether such reasons are pretextual. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000); Pardi v. Kaiser Foundation Hospitals, 389 F.3d 840, 849 (9th Cir. 2004). Barnabas is still an employed by UPS and on inactive status. The only reason she is not working for UPS is because she told UPS she had medical restrictions that prevented her from doing essential parts of her AE job. More importantly, UPS invited Barnabas to return to work on more than one occasion, but she refused, saying, “it is not in my best interest to be employed by UPS.” Barnabas cannot claim that she had medical conditions that prevented her from performing essential parts of her job and then complain that UPS retaliated against her by taking actions based upon the information she provided. She may now regret her former actions and decisions, but UPS is not liable for those actions or decisions. Moreover, if Barnabas really wanted to return to work at UPS, she should have explored that opportunity on the many occasions it has been presented to her since her departure. Instead, Barnabas is successfully working in another career—which suggests that she has no intention of returning to UPS—and never has. Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 13 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- On these facts, Barnabas cannot show that UPS took any adverse employment action against her. And even if she could, there is absolutely no evidence to show that UPS’s inability to return Barnabas to the workforce since she left can be charged to anyone other than Barnabas herself. In short, and employer can only invite an employee to work—it cannot compel that employee to work. That is the situation we have here, and it is not a situation that supports a claim of retaliation. III. CONCLUSION Barnabas is not disabled under the meaning of the ADA because she does not have a physical or mental impairment that substantially limits one or more of her major life activities. To the contrary, Barnabas works, takes care of herself and lives a happy, fulfilled life in which she has only minor memory lapses. While UPS attempted to accommodate Barnabas and engaged in a robust ADA process with her, it was not required to do so under the law, because she is not disabled. The EEOC cannot demonstrate that a material fact exists regarding whether Barnabas is disabled, nor can it argue that UPS’s response to Barnabas’s claim prove that UPS regarded her as disabled. For these reasons, Plaintiff’s Count I and Count II fail. Finally, Barnabas cannot point to her own actions in reporting her restrictions, and refusing to return to work when invited, as an adverse action supporting a retaliation claim, so Count III also fails. For these reasons, the Court should enter judgment for UPS in each of Plaintiff’s claims as a matter of law. RESPECTFULLY SUBMITTED this 10th day of January, 2017. BURNSBARTON LLP By /s/ David T. Barton C. Christine Burns David T. Barton Laura A. Freeman Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 14 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- CERTIFICATE OF SERVICE I hereby certify that on January 10, 2017, I sent the foregoing document by electronic mail to the following individuals: Mary Jo O’Neill Michael M. Baskind Gina E. Carrillo Equal Employment Opportunity Commission Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Mary.oneill@eeoc.gov Michael.baskind@eeoc.gov Gina.carrillo@eeoc.gov Rosanne.wood@eeoc.gov s/ Carol Aparicio Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 15 of 15