Shields v. Credit One Bank, N.A. et al, No. 2:2019cv00934 - Document 94 (D. Nev. 2023)
Court Description: ORDER Denying 75 Motion for Summary Judgment and Granting 76 Motion for Summary Judgment. The Clerk of Court is directed to ENTER JUDGMENT in favor of the defendants and CLOSE this case. Signed by Judge Jennifer A. Dorsey on 10/4/2023. (Copies have been distributed pursuant to the NEF - RGDG)
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Shields v. Credit One Bank, N.A. et al Doc. 94 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 1 of 23 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Karen Shields, 4 v. 5 Plaintiff Credit One Bank, N.A., et al., 6 Defendants 7 8 Case No.: 2:19-cv-00934-JAD-NJK Order Granting Summary Judgment in Favor of the Defendants and Closing this Case [ECF Nos. 75, 76] Plaintiff Karen Shields sues her former employers, defendants Credit One Bank, Credit 9 One Financial, and Sherman Financial Group, LLC, (collectively, “Credit One”) alleging that 10 they terminated her position because they did not want to extend her medical leave, thereby 11 violating the Americans with Disabilities Act (ADA). 1 Both Shields and Credit One move for 12 summary judgment. Credit One contends that Shields cannot show it discriminated against her 13 because she was not disabled and because Shields cannot prove that the legitimate, 14 nondiscriminatory reason it proffered for terminating her is pretextual. 2 Shields argues that there 15 is no genuine issue of material fact as to whether she was a qualified individual with a disability, 16 granting her an extension of leave was a reasonable accommodation, and Credit One’s assertion 17 that her role was eliminated as a part of departmental restructuring is mere pretext. 3 Because 18 Shields has not shown that there is a triable issue of fact as to whether Credit One’s legitimate 19 reason for eliminating her position is pretextual, I deny Shields’s motion, grant summary 20 judgment for Credit One, and close this case. 21 22 23 1 ECF No. 16. 2 ECF No. 76. 3 ECF No. 75. Dockets.Justia.com Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 2 of 23 1 2 3 Factual Background I. Credit One hires Anne Krutchik, who begins implementing personnel and procedural changes in the human resources department. Credit One hired Shields as a human-resources generalist in November of 2017. 4 Several 4 5 months later, it brought on Anne Krutchik to lead the HR department. 5 Krutchik’s vision of the 6 department involved shifting from generalist positions to “very specialized roles” and senior 7 leadership positions. 6 She began making changes to the department upon her arrival. 7 On the 8 personnel front, Kimberly Barber, Shields’s direct supervisor at the time, was let go in March 9 2018. 8 Christyne Riggs was hired for the newly created role of director of benefits at around the 10 same time. 9 And Megan Lago, who had worked as a recruiting supervisor, was promoted to the 11 new director-of-human-resources position. 10 Krutchik began instituting procedural changes as well. 11 One involved an effort to 12 13 streamline a number of human-resources processes that were manual and paper-based at the 14 time, something Riggs had been hired to do as she had done this for a prior employer. 12 Riggs 15 spent her first several weeks at Credit One working alongside Shields, who introduced Riggs to 16 17 4 18 ECF No. 75-1 at 1, ¶ 2. 5 ECF No. 76-9 at 3:1–6, 16:10–14. 19 6 See id. at 23:16–19, 24:24–25:4. 7 ECF No. 76-3 at 34:20–36:19. 8 Id. at 19:20–24; ECF No. 76-9 at 20:9–22. 20 21 9 22 10 ECF No. 76-3 at 20:23–25; ECF No. 76-10 at 3:2–10, 11:8–22, 14:12–17. 11 ECF No. 76-3 at 35:3–18. 12 ECF No. 76-12 at 4:1–11; 5:11–12. 23 ECF No. 76-9 at 20:9–22. It appears that Riggs was hired in late March and began working in early April. See ECF No. 76-9 at 20:13–22; ECF No. 76-12 at 5:11–12. 2 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 3 of 23 1 key stakeholders, the benefits-orientation process, how the information from the forms was 2 manually entered into various systems, and how to complete benefits enrollments. 13 3 II. Shields goes on leave after undergoing a medical procedure. 4 Shields was dealing with health issues at this time. She stated that by the end of January 5 2018 “it was suspected” that she had bone cancer in her right arm and shoulder. 14 She was 6 seeing an oncologist and undergoing tests in early March, though according to texts she sent to 7 Barber, her oncologist did not think she had cancer at that time. 15 But she received bone-scan 8 results in early April that, according to Shields, were concerning. 16 And on April 10, 2018, 9 Shields’s oncologist, Dr. Ronald Hillock, scheduled a biopsy surgery for April 20, 2018. 17 10 Several days after her biopsy surgery was scheduled, Shields provided Credit One with a 11 form from Dr. Hillock’s office noting that she would be unable to work until May 20, 2018, 12 while she recovered from the procedure. 18 She underwent the biopsy surgery on April 20, 2018, 13 and was released from the hospital three days later. 19 A week after the procedure, Dr. Hillock 14 completed an ADA form in which he stated that Shields would actually need two months of 15 leave for recovery. 20 He also completed a separate work-summary form that noted that Shields 16 17 18 19 20 21 22 23 13 Id. at 5:11–21, 9:17–10:9. 14 ECF No. 75-1 at 2, ¶ 3. 15 ECF No. 76-13 at 2–3. 16 Id. at 5. 17 Id. 18 ECF No. 75-1 at 14. 19 Id. at 2, ¶¶ 3–4. 20 Id. at 8–9. 3 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 4 of 23 1 could return to work on June 20, 2018. 21 Neither of those two leave requests was denied or is at 2 issue in this case. 3 Krutchik also continued to implement changes within the department while Shields was 4 out on leave. In April of 2018, Credit One eliminated a human-resources-representative 5 position 22 and then let go of Lago’s former supervisor, Mike Young, in May. 23 And during 6 Shields’s leave of absence, her day-to-day duties were performed by others in the HR 7 department, including Riggs, Lago, and Vera Yanez-Tourney, who was the assistant vice present 8 of human resources. 24 9 Shields’s bone-biopsy results came back in early May and, thankfully, were negative for 10 cancer. 25 She immediately informed Krutchik, Riggs, and others at Credit One, who all 11 congratulated her when they learned the happy news. 26 12 III. Shields’s physician extends her leave and then Credit One eliminates her position. 13 Shields underwent physical therapy throughout May and June, and continued to recover 14 and make improvements in shoulder strength and range of motion. 27 But as her June 20, 2018, 15 return-to-work date approached, Shields contacted Dr. Hillock’s office to request an appointment 16 and an extension of her leave because, according to Shields, she “was still having difficulties 17 performing basic functions.” 28 Dr. Hillock scheduled her for an appointment on July 10, 2018, 18 19 20 21 22 23 21 Id. at 16. 22 ECF No. 76-11 at 3. 23 ECF No. 76-3 at 43:15–44:5; ECF No. 76-12 at 17:4–12. 24 ECF No. 76-12 at 6:10–13, 12:18–22, 23:19–25, 25:8–10. 25 ECF No. 76-3 at 6–11; ECF No. 76-13 at 6. 26 E.g., ECF No. 81-2 at 38, 41. 27 ECF No. 76-17 at 6:2–22; 76-18 at 3. 28 ECF No. 76-3 at 11:10–23. 4 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 5 of 23 1 and gave her form extending her leave through July 12, 2018, 29 though nobody from his office 2 evaluated her at this time. 30 Shields provided Credit One with this new leave-extension form on 3 June 18, 2018, two days before her initial leave period expired. 31 4 Several days later, Shields received a call from Yanez-Tourney asking Shields to come 5 into the office the following day. 32 So on June 22, 2018, Shields met with Lago and Yanez6 Tourney, who informed Shields that her human-resources-generalist role had been eliminated, 7 her duties had been distributed among other employees, and that she was being let go. 33 It does 8 not appear that Credit One hired anyone as a human-resources generalist after it terminated 9 Shields. 34 10 Procedural History 11 Shields brings a single claim under the ADA for “[d]isability [d]iscrimination and 12 [f]ailure to [a]ccommodate,” alleging that Credit One unlawfully terminated her because it did 13 not want to accommodate her medical-leave extension. 35 I dismissed her suit after adopting 14 Magistrate Judge Nancy J. Koppe’s report and recommendation 36 that Shields’s claim be 15 dismissed with prejudice because she had failed to adequately allege a disability under the 16 17 18 29 ECF No. 75-1 at 18. 30 ECF No. 76-3 at 11:18–12:11. Dr. Hillock later testified that as long as the total period of 19 leave is under three months he doesn’t “argue with patients” and “pretty much give[s] them what they want.” ECF No. 76-21 at 8:4–12. 20 31 ECF No. 76-20. 21 22 23 32 ECF No. 75-1 at 4, ¶ 20. 33 Id. at 5, ¶ 23. 34 ECF No. 76-12 at 28:13–18. 35 ECF No. 16 at ¶¶ 26–41. 36 ECF No. 43. 5 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 6 of 23 1 ADA. 37 I agreed that dismissal was warranted on two separate grounds: (1) Shields’s amended 2 complaint “lacked sufficient facts” explaining her impairment and limitations during the three3 week-extension period at issue, and (2) she had “fail[ed] to state facts that plausibly show[ed] 4 any permanent or long-term effects for her impairment” and thus had not adequately alleged that 5 her impairment was substantially limiting. 38 The Ninth Circuit reversed in a published order. 39 The panel first found that the 6 7 “permanent or long-term effects” language, though derived from a 2010 Equal Employment 8 Opportunity Commission regulatory definition of “disability,” was inconsistent with the ADA 9 Amendments Act of 2008. 40 The ADAAA expressly rejected the 2008 version of the EEOC 10 regulations, which was identical to the 2010 version, as “too restrictive.” 41 The panel noted that 11 the new 2011 EEOC regulations “confirm[ed] that [I] . . . erred in holding that an impairment is 12 ‘substantially limiting’ only if it involves ‘permanent or long-term’ effects,” 42 and it held that 13 “the actual-impairment prong of the definition of disability . . . is not subject to any categorical 14 temporal limitation.” 43 The court then determined that Shields’s allegations of her limitations 15 during her initial leave period, when paired with her allegation that her “surgeon had concluded 16 that her condition had not improved sufficiently by the end of those eight weeks to permit her to 17 return to work,” were sufficient to establish that she had an “impairment” that substantially 18 19 20 21 22 23 37 ECF No. 49. 38 See id. at 7–9. 39 Shields v. Credit One Bank, N.A.¸ 32 F.4th 1218 (9th Cir. 2022). 40 Id. at 1223. 41 Id. 42 Id. at 1224. 43 Id. at 1225. 6 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 7 of 23 1 limited her ability to perform major life activities during the leave extension period. 44 After 2 remand, the parties continued with discovery and both now move for summary judgment. 3 Discussion 4 I. Standard for cross motions for summary judgment 5 The principal purpose of the summary-judgment procedure is to isolate and dispose of 6 factually unsupported claims or defenses. 45 The moving party bears the initial responsibility of 7 presenting the basis for its motion and identifying the portions of the record or affidavits that 8 demonstrate the absence of a genuine issue of material fact. 46 If the moving party satisfies its 9 burden with a properly supported motion, the burden then shifts to the opposing party to present 10 specific facts that show a genuine issue for trial. 47 11 Who bears the burden of proof on the factual issue in question is critical. When the party 12 moving for summary judgment would bear the burden of proof at trial (typically the plaintiff), “it 13 must come forward with evidence [that] would entitle it to a directed verdict if the evidence went 14 uncontroverted at trial.” 48 Once the moving party establishes the absence of a genuine issue of 15 fact on each issue material to its case, “the burden then moves to the opposing party, who must 16 present significant probative evidence tending to support its claim or defense.” 49 When instead 17 18 19 20 44 Id. at 1226–27. 45 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 46 Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). 47 Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Auvil v. CBS 60 Minutes, 67 F.3d 816, 819 (9th Cir. 1995). 21 48 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 22 (quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (citation and quotations omitted)). 23 49 Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (citation omitted). 7 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 8 of 23 1 the opposing party would have the burden of proof on a dispositive issue at trial, the moving 2 party (typically the defendant) doesn’t have to produce evidence to negate the opponent’s claim; 3 it merely has to point out the evidence that shows an absence of a genuine material factual 4 issue. 50 The movant need only defeat one element of the claim to garner summary judgment on 5 it because “a complete failure of proof concerning an essential element of the nonmoving party’s 6 case necessarily renders all other facts immaterial.” 51 “When simultaneous cross-motions for 7 summary judgment on the same claim are before the court, the court must consider the 8 appropriate evidentiary material identified and submitted in support of”—and against—“both 9 motions before ruling on each of them.” 52 10 II. The McDonnell Douglas burden-shifting framework applies to Shields’s claim. 11 Motions for summary judgment in the employment-discrimination context—including 12 ones for “[d]iscrimination . . . claims under the ADA” —are subject to the burden-shifting 13 framework described in the United States Supreme Court’s decision in McDonnell Douglas 14 Corporation v. Green and its progeny. 53 “Although intermediate evidentiary burdens shift back 15 and forth under this framework, the ultimate burden of persuading the trier of fact that the 16 defendant intentionally discriminated against the plaintiff remains at all times with the 17 plaintiff.” 54 “The facts necessarily will vary in [employment-discrimination] cases, and the 18 19 50 20 51 21 22 23 See, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); Celotex, 477 U.S. at 323– 24. Celotex, 477 U.S. at 322. 52 Tulalip Tribes of Washington v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015) (citing Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001)). 53 Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). 54 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks omitted). 8 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 9 of 23 1 specification above of the prima facie proof required from respondent is not necessarily 2 applicable in every respect to different factual situations.” 55 3 The McDonnell–Douglas analysis involves three steps, the first of which requires the 4 employee to establish a prima facie case of discrimination. 56 “Establishment of a prima facie 5 case in effect creates a presumption that the employer unlawfully discriminated against the 6 employee.” 57 And to establish a prima facie case of discrimination or failure to accommodate 7 under the ADA, a plaintiff must demonstrate that she: (1) is disabled within the meaning of the 8 ADA; (2) is a qualified individual able to perform the essential functions of the job with 9 reasonable accommodation; and (3) suffered an adverse employment action because of her 10 disability.” 58 11 Once the prima facie case has been established, “[t]he burden of production, but not 12 persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason 13 for the challenged action.” 59 The plaintiff must then show that the basis was either a mere 14 pretext for engaging in the unlawful conduct or that the proffered explanation is unworthy of 15 16 17 18 55 19 56 20 57 McDonnell Douglas, 411 U.S. at 802 n.13. Id. at 802; Raytheon Co. v. Hernandez, 540 U.S. 44, 49–52 (2003) (applying McDonnell– Douglas standard to ADA claim). Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). 21 58 Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (failure to 22 accommodate); Nunes v. Wal–Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999) (discrimination). 23 59 Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1123–24 (9th Cir. 2000); Raytheon, 540 U.S. at 50; Burdine, 450 U.S. at 254. 9 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 10 of 23 1 credence. 60 She can meet this burden by presenting circumstantial evidence, which must be 2 “specific and substantial.” 61 3 Shields argues that the McDonnell Douglas framework does not apply to cases involving 4 “[a] termination that results from an employer failing to accommodate or continue to 5 accommodate an employee under the ADA,” 62 citing only Humphrey v. Memorial Hospitals 6 Association for this position. 63 But the Ninth Circuit didn’t discuss McDonnell Douglas or its 7 general applicability to unlawful-discharge claims involving accommodation allegations in 8 Humphrey. 64 Its decision in Dark v. Curry County, on the other hand, shows that Shields’s 9 categorical argument that the McDonnell Douglas framework is inapplicable in this context is 10 wrong. 65 In Dark, an employee had brought a claim alleging that his employer “violated the 11 ADA by discharging him while refusing reasonably to accommodate his disability.” 66 The Ninth 12 Circuit ultimately reversed the district court’s grant of summary judgment for the employer, but 13 did so following the McDonnell Douglas framework. 67 14 15 60 Burdine, 450 U.S. at 256; Reeves, 530 U.S. at 147; Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003). 61 Coughlan v. American Seafoods Co., LLC, 413 F.3d 1090, 1095 (9th Cir. 2005). The plaintiff may also provide direct evidence of such pretext, Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 17 1221 (9th Cir. 1998), but there is no direct evidence in this case, so I need not consider this issue. 16 18 19 20 21 62 ECF No. 81 at 20. 63 Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1140 (9th Cir. 2001). 64 Id. at 1134–40. 65 Dark v. Curry Cnty., 451 F.3d 1078 (9th Cir. 2006). 66 Id. at 1082. 67 Id. at 1083, 1085. The Dark court found that there was “a genuine issue of material fact as to whether the [employer] demonstrated a legitimate, nondiscriminatory reason for [the 22 employee’s] termination” under the second step of the McDonnell Douglas framework and that, even if the employer had gotten past that step, summary judgment would be inappropriate 23 because the employee had “shown, by ‘specific, substantial evidence,’ that the [employer’s] explanation was mere pretext.” Id. 10 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 11 of 23 1 Shields is not entirely wrong, though, as the McDonnell Douglas framework is not well 2 suited for evaluating certain types of unlawful-discharge claims under the ADA with underlying 3 accommodation allegations. 68 Ultimately, whether a court should apply the framework hinges 4 on whether the employer considered or relied upon the employee’s disability in taking the 5 challenged adverse-employment action. 69 “[I]f the employer disclaims any reliance on the 6 employee’s disability in having taken the employment action,” the court must use the McDonnell 7 Douglas framework “to determine if the employer’s reason is pretextual.” 70 But “if the 8 employer acknowledges reliance on the disability in the employment decision, the employer 9 bears the burden of showing that the disability is relevant to the job’s requirements.” 71 Humphrey provides an example of the latter situation. 72 The employee in Humphrey 10 11 suffered from obsessive-compulsive disorder, and the “obsessive rituals” she engaged in were 12 causing problems with tardiness and absenteeism at work. 73 Her employer accommodated her 13 by allowing her to have a flexible start time. 74 But when the employee realized this 14 accommodation “was not working,” she requested the ability to work from home, which her 15 employer denied, 75 and she was ultimately fired for absenteeism and tardiness. 76 Because 16 17 18 68 US Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002). 69 See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th Cir. 2001); Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1175 (9th Cir. 1998). 19 70 20 71 Snead, 237 F. 3d at 1093 n.10 (citing Mustafa, 157 F.3d at 1176). 72 Humphrey, 239 F.3d at 1138–40. 73 Id. at 1130. 74 Id. at 1138. 75 Id. at 1138–39. 76 Id. at 1139–40. 21 22 23 Mustafa, 157 F.3d at 1175–76 (citing Tehan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 514–16 (2d Cir. 1991)). 11 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 12 of 23 1 “conduct resulting from a disability is considered to be part of the disability, rather than a 2 separate basis for termination,” 77 and because the employee had “presented sufficient evidence to 3 create a triable issue of fact as to whether her attendance problems were caused by OCD,” the 4 Humphrey court concluded that a reasonable jury could find a causal link between her disability 5 and termination. 78 The court therefore did not need to determine whether the employer’s 6 proffered reason was pretextual, as the employer had already stated that it relied on conduct 7 stemming from the employee’s disability when deciding to terminate her. 8 Using the McDonnell Douglas framework would likewise be inappropriate when an 9 employer discharged the employee after determining that her disability rendered her incapable of 10 performing her essential job functions even with reasonable accommodations, 79 or when a 11 breakdown in the interactive process results in the employee’s termination. 80 There is no 12 question that the employee’s disability factored into the employer’s decision-making process in 13 such cases. So the focus of the court’s analysis then is not on causation but on issues like 14 whether the employer adequately engaged in the interactive process 81 or whether reasonable 15 accommodations would allow the employee to perform the essential duties of the position (and if 16 so, whether providing those accommodations would be an undue hardship for the employer). 82 17 18 19 20 77 Id. (citing Hartog v. Wasatch Acad., 129 F.3d 1076, 1086 (10th Cir. 1997)). 78 Id. at 1140. 79 See, e.g., Rosales v. Bellagio, LLC, 811 F. App’x 438, 439 (9th Cir. 2020) (unpublished). 80 See, e.g., Reza v. IGT, 2008 WL 2048357, at *2 (D. Nev. May 12, 2008), aff’d sub nom. Reza v. 21 Int’l Game Tech., 351 F. App’x 188 (9th Cir. 2009) (finding that using the McDonnell Douglas burden-shifting framework was inappropriate because “the plaintiff’s disability was 22 clearly a factor in the adverse action taken by the employer”). 81 See, e.g., Humphrey, 239 F.3d at 1138–39. 23 82 See, e.g., id.; Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th Cir. 2000), vacated sub nom. on other grounds, US Airways, Inc. v. Barnett, 535 U.S. 391 (2002). 12 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 13 of 23 1 But this case does not involve those types of situations and fact patterns. The adverse- 2 employment action at issue here is Shields’s termination 83 and, as she recognizes, 84 “an 3 unlawful[-]discharge claim requires a showing that the employer terminated the employee 4 because of h[er] disability.” 85 In other words, the employee “must show that the 5 adverse[-]employment action would not have occurred but for the disability.” 86 Credit One has 6 consistently disclaimed any reliance on Shields’s shoulder impairment and her request for a 7 leave extension in deciding to eliminate her position and let her go. 87 Its stated reason for 8 terminating her is not related to her conduct, and from the start Shields has taken the position that 9 that it is pretextual. 88 So I apply the McDonnell Douglas framework to Shields’s claim. 89 10 11 III. 12 Credit One proffered a legitimate, nondiscriminatory reason for Shields’s termination. Assuming without deciding that Shields has established her prima facie case, Credit One 13 has articulated a legitimate, nondiscriminatory reason for terminating Shields—its new 14 83 Neither party has presented evidence to suggest that Credit One denied Shields’s leave extension. In fact, she was terminated after the start of the period covered by the extension. See 16 ECF No. 75-1 at 3, ¶¶ 11, 17–23. 15 17 84 ECF No. 75 at 18. 85 Humphrey, 239 F.3d at 1139. 18 86 19 87 Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019); Head v. Glacier Nw. Inc., 413 F.3d 1053, 1065 (9th Cir. 2005). See, e.g., ECF No. 76. Credit One has also not argued that Shields was unqualified or that several weeks of additional leave would have been an unreasonable accommodation or an undue 20 hardship. Id. 21 22 88 ECF No. 16 at 5 (alleging that the elimination of Shields’s position “was nothing more than a pretext for terminating Shields while her doctor still had her on medical leave”). 89 See Snead, 237 F. 3d at 1093; see also Higgins v. Nw. Farm Credit Servs., ACA, 2018 WL 2050132, at *11–12 (D. Idaho May 2, 2018) (granting summary judgment on ADA claim when 23 the plaintiff “failed to present evidence that the real reason for her discharge was a discriminatory one based on her disability or on her request for accommodation”). 13 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 14 of 23 1 department head, Krutchik, was in the process of reorganizing Shields’s department at the time, 2 and Shields’s position was eliminated as part of that reorganization. 90 Krutchik’s shift from 3 generalized to specialized roles 91 is consistent with the elimination of Shield’s “generalist” 4 position. 92 This process began with Krutchik’s hiring in January 2018, 93 which was before even 5 Shields knew that she needed surgery. 94 In the months that followed, Krutchik implemented a 6 series of changes to procedures and personnel in the department. 95 By March 2018, Credit One 7 had terminated Barber, 96 promoted Lago from a recruiting supervisor to the newly created role of 8 director of human resources, 97 and hired Riggs for the new director-of-benefits. 98 In April 2018, 9 a human-resources-representative position was eliminated, 99 and a month later, Lago’s former 10 supervisor, Mike Young, was let go. 100 11 Shields argues that this restructuring is not a legitimate reason because “if an employer 12 was able to redistribute and eliminate an employee’s position once they were put on a medical 13 leave of absence they would do this as a matter of course in every case to get around their 14 15 16 90 See ECF No. 76 at 15–17. 91 ECF No. 76-9 at 23:16–19, 24:21–25:4. 92 18 See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1211–12 (9th Cir. 2008). 93 ECF No. 76-9 at 3:1–6, 16:10–14. 19 94 ECF No. 76-3 at 33:19–34:1; ECF No. 76-13 at 2, 5. 17 95 Shields acknowledged that Krutchik began making such changes upon her arrival. See ECF 20 No. 76-3 at 34:20–36:19. 21 22 23 96 ECF No. 76-3 at 19:20–24; ECF No. 76-9 at 20:9–22. 97 ECF No. 76-3 at 20:23–25; ECF No. 76-10 at 3:2–10, 11:8–22, 14:12–17. 98 ECF No. 76-3 at 20:14–18; ECF No. 76-9 at 15:5–8. 99 ECF No. 76-11 at 3. 100 ECF No. 76-3 at 43:15–44:5; ECF No. 76-12 at 17:4–12. 14 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 15 of 23 1 obligation to accommodate an employee with a leave of absence.” 101 But Shields cites no 2 authority in support of this proposition, and the Ninth Circuit has recognized that the elimination 3 of a role as part of a reorganization and reduction in force can be a legitimate, nondiscriminatory 4 reason to terminate an employee who had not yet returned from disability leave when she was 5 discharged. 102 To the extent that Shields is arguing that it is unlawful to eliminate an employee’s 6 role because they are disabled and on leave, that goes instead to causation and pretext. So Credit 7 One has established a legitimate, nondiscriminatory reason for terminating Shields. 8 9 IV. 10 Shields fails to identify genuine material factual issues regarding whether Credit One’s reason for terminating her is pretextual. “[O]nce the employer offers a legitimate, nondiscriminatory reason for the discharge, and 11 that reason disclaims any reliance on the disability, the burden shifts to the employee to 12 demonstrate that the articulated reason is a pretext for disability discrimination.” 103 A plaintiff 13 can prove pretext “by showing that the employer’s proffered explanation is ‘unworthy of 14 credence’ because it is internally inconsistent or otherwise unbelievable, or . . . by showing that 15 the unlawful discrimination more likely motivated the employer.” 104 And she can “meet the 16 17 18 101 ECF No. 81 at 20, 102 See Snead, 237 F. 3d at 1085–86, 1093–94; see also Seabron v. Sony Music Ent., Inc., 135 F. App’x 42, 43 (9th Cir. 2005) (unpublished) (finding that “corporate restructuring of the 20 department where [the plaintiff] worked” was a legitimate, nondiscriminatory reason for his termination). In Snead, the Ninth Circuit was applying the McDonnell Douglas framework to Oregon’s equivalent of the ADA, but “[t]he standard for establishing a prima facie case of 21 discrimination under Oregon law is identical to that used in federal law.” Snead, 237 F.3d 1087 22 (citing Henderson v. Jantzen, 719 P.2d 1322, 1323–24 (Or. Ct. App. 1986)). 103 Snead, 237 F. 3d at 1093 (citing Smith v. Barton, 914 F.2d 1330, 1340 (9th Cir. 1990)). 23 104 Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220–22 (9th Cir. 1998)). 19 15 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 16 of 23 1 burden to show pretext using either direct or circumstantial evidence.” 105 “But when the plaintiff 2 relies on circumstantial evidence, that evidence must be ‘specific and substantial’ to defeat the 3 employer’s motion for summary judgment.” 106 Shields points to several issues that she argues 4 prove pretext, but none of them—either individually or in the aggregate—are sufficient to meet 5 the “specific and substantial” standard and create a genuine dispute of material fact as to pretext. 6 A. 7 Both parties hone in on the temporal proximity of Shields’s leave-extension request and Temporal proximity 8 her discharge. 107 Credit One contends that temporal proximity alone is insufficient to establish 9 pretext. 108 Shields argues that Credit One’s termination of her just four days after being notified 10 of her leave extension is indicative of pretext, and she notes that this close temporal proximity 11 “is a large part” of her argument that Credit One’s elimination of her position was an effort to 12 “hide the fact that they were really terminating her because they didn’t want to extend her leave 13 of absence.” 109 Considering temporal proximity as part of a causation inquiry may be 14 appropriate outside of the retaliation context. 110 But courts tend to find that temporal proximity 15 alone, while sufficient to satisfy the relatively low-threshold showing of causation for a prima 16 105 Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1094–95 (9th Cir. 2005) (citing Godwin, 17 150 F.3d at 1220). 18 106 Id. at 1095 (quoting Godwin, 150 F.3d at 1222). 107 ECF No. 76 at 17; ECF No. 81 at 21; ECF No. 82 at 15; ECF No. 88 at 10; ECF No. 91 at 9– 19 10. 20 21 108 ECF No. 76 at 17; ECF No. 82 at 15; ECF No. 88 at 10. 109 ECF No. 81 at 20–21; ECF No. 91 at 9–10. 110 See, e.g., Huck v. Kone, Inc., 539 F. App’x 754, 755 (9th Cir. 2013) (unpublished); Murray v. Mayo Clinic, 784 F. App’x 995, 998 (9th Cir. 2019) (unpublished). Shields’s operative 22 complaint does not include a retaliation theory. ECF No. 16. In earlier proceedings in this matter, Shields’s counsel stated that she would be removing this theory prior to filing her 23 amended (and currently operative) complaint because “there are not really any facts that stick out that would indicate retaliation.” ECF No. 15 at 7:9–19. 16 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 17 of 23 1 facie case, falls short of the “specific and substantial evidence” requirement at the pretext step of 2 the McDonnell Douglas framework—especially when the proffered reason for the termination 3 undermines the significance of the closeness in time. 111 4 Viewed in isolation, the temporal proximity between Shields’s leave extension and her 5 termination four days later is short. But evidence consistent with both Credit One’s proffered 6 reason and the timing of its decision diminishes the significance of this closeness in time. 7 Krutchik was in the process of implementing a number of changes in Shields’s department at the 8 time, which Shields does not dispute. 112 This process began before Shields went on leave and 9 continued in her absence. 113 The record reflects an ongoing process taking place over the span 10 of months, with two roles being eliminated (and one of these employees being terminated) in the 11 two months that preceded Shields’s own role being eliminated. 114 And before Shields even 12 requested her initial leave, Krutchik brought on Riggs to streamline much of the work that 13 Shields had been doing. 115 In light of this rich record of corporate reorganization at Credit One, 14 the timing of Shields’s termination does not support a specific and substantial showing of 15 pretext. 16 Shields’s own declaration also directly contradicts both her position on temporal 17 proximity and the underlying premise of her entire case. 116 Shields avers that during her initial 18 111 Curley v. City of N. Las Vegas, 772 F.3d 629, 634 (9th Cir. 2014); Brown v. City of Tucson, 19 336 F.3d 1181, 1187 (9th Cir. 2003); Huck, 539 F. App’x at 755. 20 112 ECF No. 76-3 at 34:20–36:19. 113 ECF No. 76-3 at 19:20–24, 20:14–25, 43:15–44:5; ECF No. 76-9 at 15:5–8, 20:9–22; ECF 21 No. 76-10 at 3:2–10, 11:8–22, 14:12–17; ECF No. 76-11 at 3; ECF No. 76-12 at 17:4–12. 22 114 ECF No. 76-3 at 43:15–44:5; ECF No. 76-11 at 3; ECF No. 76-12 at 17:4–12. 115 ECF No. 76-12 at 3:23–5:22, 21:12– 22:10. It appears that Krutchik may have also been 23 actively reviewing Shields’s role and duties. See ECF No. 76-3 at 48:23–50:16. 116 See ECF No. 75-1 at 1–6. 17 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 18 of 23 1 leave of absence she was “denied Long Term Disability,” which she believes happened because 2 Credit One had already informed the insurance carrier that it planned on terminating her. 117 But 3 if that is true, then Credit One not wanting to extend her leave necessarily couldn’t have been the 4 reason she was discharged since it didn’t learn of this extension until the very end of her initial 5 leave period. 118 6 B. 7 Shields also highlights that while she was on leave she received flowers from her Well wishes and flowers 8 department after her biopsy was completed, as well as various communications from Credit One 9 employees wishing her well, saying they anticipated her return, and congratulating her when her 10 tests came back negative for cancer. 119 According to Shields, this suggests that Credit One had 11 not yet decided to terminate her since the messages did not “make any reference to an impending 12 elimination of Shields[’s] position or that she was no longer needed.” 120 13 This is a bizarre argument. One would hardly expect communications of this type— 14 congratulating Shields on not having cancer—to also contain information about her pending 15 termination even if that decision had already been made. There are countless reasons employers 16 might not want to forecast such decisions to employees even under normal circumstances. Even 17 if I were to accept this as a logical inference, most of the messages Shields references date back 18 19 20 117 ECF No. 75-1 at 3, ¶ 16. 118 ECF No. 75-1 at 18. I have made my findings here without relying on this belief, and Shields did not submit any evidence to support it. But I do find it quite troubling that Shields might not 22 actually believe the central throughline of her case and many of the arguments she is making on summary judgment. 21 23 119 ECF No. 81 at 21–22; ECF No. 91:7–8. 120 ECF No. 81 at 21–22; ECF No. 91:7–8. 18 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 19 of 23 1 to when she found out her tests came back negative in early May. 121 So these messages would 2 provide limited support for Shields’s position, as Credit One could have made the decision to 3 eliminate her position during the month and a half between that point and when Dr. Hillock 4 extended her leave. The only message that immediately preceded her leave extension was from 5 Riggs, but she was not involved in the decision-making process related to the elimination of 6 Shields’s position.122 So the fact that the friendly communications that Shields received from 7 her coworkers during her leave failed to mention her impending termination is not evidence of 8 pretext. 9 C. 10 Absence of certain documents Shields next argues that “there is not one shred of written documentation from Credit 11 One’s files indicating that [Shields’s] position was being eliminated before it happened,” which 12 she contends undermines Credit One’s explanation that it eliminated Shields’s position as part of 13 departmental restructuring. 123 But at the summary judgment stage a plaintiff must submit 14 evidence to raise a genuine dispute of material fact—merely highlighting the absence of a certain 15 type of document, without more, is insufficient. 124 If, for example, Shields had presented 16 evidence that the other personnel decisions made during this period were heavily documented 17 leading up to their implementation, then that inconsistency might give rise to an inference that 18 some other, unarticulated reason factored into the decision to eliminate Shields’s position. But 19 Shields has offered no such evidence. 20 21 22 23 121 See ECF No. 81 at 22. 122 ECF No. 76-12 at 20:3–12. 123 ECF No. 91 at 7. 124 See Celotex, 477 U.S. at 322. 19 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 20 of 23 1 Shields also points to the fact that there “is no written documentation or other 2 documentation to support that there was an ongoing restructuring plan like Credit One 3 claims.” 125 But this argument suffers from the same fatal flaw. Pointing to the absence of this 4 one type of evidence is not enough when Credit One has presented substantial evidence that 5 restructuring was occurring in some form, including evidence of terminations, hirings, the 6 creation and elimination of positions, and various procedural changes, all being implemented 7 over the months leading up to and during Shields’s leave, and all starting with Krutchik’s 8 hiring. 126 Shields does not dispute that these changes occurred. 127 So the absence of documents 9 related to restructuring does not create a triable issue of fact as to pretext. 10 D. 11 It is undisputed that Riggs assumed some of Shields’s duties when she initially went on Riggs’s assumption of some of Shields’s duties 12 leave and after her discharge. 128 It appears that several other employees picked up some of her 13 duties as well. 129 Though Shields’s arguments on this point are not entirely clear, she appears to 14 contend that this is akin to hiring someone to replace Shields and thus also demonstrates that her 15 discharge was pretextual. 130 16 But there are several problems with this line of reasoning. Shields largely focuses on 17 Riggs, but Riggs testified that she, as the director of benefits, only took over Shields’s 18 19 20 21 22 23 125 Id. 126 ECF No. 76-3 at 34:20–36:19. 127 Id. 128 ECF No. 76-12 at 12:18–22. 129 Id. at 6:10–13, 23:19–25, 25:8–10. 130 See ECF No. 81 at 21; (“[E]ven if Credit One didn’t hire a Human Resources Generalist (as they claim) to replace Shields, they did replace the duties Plaintiff was performing by having Riggs (and possibl[y] Lago or others) perform the duties instead.”); ECF No. 91 at 10 (same). 20 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 21 of 23 1 “benefits[- ]related” duties. 131 Shields’s duties related to “employee relations” and equal2 employment-opportunity compliance were picked up by Lago, 132 and her accommodations3 related duties were handled by Yanez-Tourney. 133 So the way Credit One distributed Shields’s 4 duties is actually consistent with its stated reason for eliminating Shields’s position—certain 5 processes were streamlined, and other duties were distributed among the department as part of a 6 shift towards increased specialization. And even if Riggs really “took over the majority of Shields[’s] job duties” 134 and was a 7 8 quasi-replacement for Shields, this would tend to undermine, rather than support, Shields’s case. 9 Riggs was hired for her newly created role before Shields even knew she needed medical 10 leave. 135 As Shields points out, Riggs was relatively new and had no duties of her own when 11 Shields went on leave. 136 In fact, it appears that Riggs was largely shadowing Shields during 12 their two week overlap at Credit One. 137 There is also uncontroverted testimony that Credit One 13 did not hire another human-resources generalist after Shields’s discharge. 138 But neither party 14 has submitted evidence that suggests someone else was later hired to backfill whatever other 15 duties Riggs would have been initially hired to perform prior to taking over Shields’s benefits 16 duties if that, as Shields implies, had not been Credit One’s initial intention. 17 18 19 20 21 22 23 131 ECF No. 76-12 at 12:18–22. 132 Id. at 23:24–25, 25:8–10. 133 Id. at 6:10–13, 23:19–21. 134 ECF No. 81 at 21. 135 See ECF No. 75-1 at 14; ECF No. 76-3 at 20:14–18; ECF No. 76-9 at 20:9–22. 136 ECF No. 81 at 21; see also ECF No. 76-12 at 16:21–24. 137 ECF No. 76-12 at 9:1–10:9. 138 Id. at 28:13–18. 21 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 22 of 23 1 E. 2 Finally, Shields contends that a fax that Credit One sent to the employment-security February 2019 unemployment-benefit fax 3 division related to unemployment benefits 139 establishes that the true reason Credit One 4 terminated her was because of her leave extension. 140 This fax was sent more than seven months 5 after Credit One terminated Shields. 141 Its first two paragraphs lay out the timeline of her leave 6 and extension requests. 142 The third paragraph notes that her duties were divided and assumed 7 by other HR employees during her absence and that, “as time passed, the department decided her 8 position was no longer necessary.” 143 But nothing in this fax implies a causal link between her 9 leave extension and discharge. Nor is it inconsistent with Credit One’s proffered reason for 10 terminating Shields. It is simply a short, post hoc summary of her medical leave and eventual 11 termination. So this fax doesn’t support Shields’s argument that her firing was pretextual. 12 Conclusion 13 Because Credit One has shown a legitimate, nondiscriminatory reason for terminating 14 Shields, and she has failed to submit specific and substantial evidence that its reason is mere 15 pretext, I grant summary judgment for Credit One on Shields’s claim. 16 IT IS THEREFORE ORDERED that Credit One’s motion for summary judgment [ECF 17 No. 76] is GRANTED, and Shields’s motion for summary judgment [ECF No. 75] is DENIED. 18 19 20 21 22 23 139 ECF No. 75-2 at 19. 140 ECF No. 81 at 22–23; ECF No. 91 at 8–9. 141 ECF No. 75-2 at 19. 142 Id. 143 Id. 22 Case 2:19-cv-00934-JAD-NJK Document 94 Filed 10/04/23 Page 23 of 23 1 The Clerk of Court is directed to ENTER JUDGMENT in favor of the defendants 2 and CLOSE this case. 3 4 _______________________________ U.S. District Judge Jennifer A. Dorsey October 4, 2023 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 23
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