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Hubbard v. Day & Zimmerman Hawthorne Corporation

United States District Court, District of Nevada

March 20, 2015

DAY & ZIMMERMANN HAWTHORNE CORPORATION, a foreign corporation, Defendant.




Before the Court is Defendant Day & Zimmermann Hawthorne Corporation’s Motion for Summary Judgment (“Motion”). (Dkt. no. 24.) The Court has reviewed Plaintiff’s opposition (dkt. no. 25) and Defendant’s reply (dkt. no. 26). For the reasons stated herein, the Motion is denied.


This dispute arises out of alleged employment discrimination under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 1210, et seq. The following facts are undisputed.[1]

Defendant operates the Hawthorne Army Depot (“the Depot”), a live munitions storage facility, pursuant to a contract with the United States Army. (Dkt. no. 24-2 at 2.) For safety and security reasons, Defendant employs a full-time staff of security guards to protect the Depot at all times. (Id.; dkt. no. 24-4 at 7-8, 19.) Defendant’s disciplinary policy calls for termination of those employees who are deemed to be a “no-call, no-show” (i.e., failure to report at their assigned work location and assigned time). (Dkt. no. 24-2 at 2; dkt. no. 24-4 at 10.) However, employees who are asked to report back to the Depot’s clinic (“Clinic”) due to medical concerns are given two chances to report to the Clinic before they are terminated. (Dkt. no. 24-2 at 2-3.) According to Defendant, it gives two opportunities because it “recognizes that an employee with medical concerns may have other matters on their mind.” (Id.)

Plaintiff Valerie D. Hubbard was employed with Defendant as a security guard at the Depot from November 2008 to November 9, 2009.[2] (Dkt. no. 24-4 at 25, 64.) She worked the graveyard shift. (Id.) On June 16, 2009, Plaintiff had a hysterectomy to treat early stages of uterine cancer. (Dkt. no. 24-4 at 32-33.) Plaintiff requested and was given time off work before the surgery. (Id. at 29.) Her physician, Dr. Beckman, advised her that she would need to take hormone supplements for the rest of her life since there was a chance that she may experience emotional issues after the complete hysterectomy. (Id. at 34-35.) In her postoperative visit on August 11, 2009, Dr. Beckman noted that she had no complaints with her supplements. (Dkt. no. 24-7.) Plaintiff returned to work on August 12, 2009. (Dkt. no. 24-4 at 38-41.) She felt fine at that time and was able resume her regular job duties. (Id.)

About a month later, in September, Plaintiff started to experience emotional problems, including anger issues and difficulty with concentration. (Dkt. no. 24-4 at 4, 42-43.) She was concerned about her ability to perform her job safely given that her responsibilities involved providing security and she was provided with a firearm during her shift. (Dkt. no. 24-4 at 42-43.) Plaintiff’s emotional health deteriorated such that on the evening of October 20, 2009, “it seemed like [she] broke, ” she “felt like [she] wanted to commit suicide, and [she] did not know what was wrong with [her].” (Id. at 5, 44-45.) Plaintiff discussed her concerns with one of her supervisors, Richard Bryant, who referred her to human resources to explore her options, which she did. (Dkt. no. 24-4 at 47-52.)

The next morning, October 21, 2009, she saw Dr. Beckman and he suggested the emotional issues she was experiencing “were possibly” related to her menopausal status and her supplements. (Id. at 53; dkt. no. 24-7.) Dr. Beckman changed her medication and noted that he did not see any medical reason for her not to work. (Dkt. no. 24-7.)

After her appointment with Dr. Beckman, Mr. Bryant contacted her to relay that she should not come to work that evening but should report to the Clinic in the morning for a “Fitness for Duty” evaluation.[3] (Id. at 54.) Plaintiff agreed with Mr. Bryant’s request since she did not believe she could do her job at that time because of her emotional state. (Id.)

On October 22, 2009, Plaintiff reported to the Clinic and was seen by the Clinic doctor. (Id. at 56-57.) Plaintiff gave the doctor the background information about her mental state and the change in her hormone supplements. (Id.) The doctor told her to take time off since he did not believe, based on his observation of her mental state at that time, she could perform her duties. (Id.) Plaintiff was given the Clinic service provider form (“First Notice”) directing her to provide her doctor’s note to the Clinic on or before October 26, 2009. (Dkt. no. 24-8.) The First Notice further stated that a release form would be sent to Dr. Beckman and Plaintiff would be “off work until further notice.” (Id.) After leaving the Clinic on October 22, 2009, Plaintiff made an appointment to see Dr. Beckman on November 4, 2009. (Dkt. no. 24-4 at 60, 63.)

Plaintiff did not report to the clinic on October 26, 2009.[4] (Dkt. no. 24-4 at 60-62.) Defendant sent Plaintiff a second Clinic service provider form dated October 27, 2009 (“Second Notice”) via certified mail, which she received at the end of October. (Id.; dkt. no. 24-9.) The Second Notice informed Plaintiff that she would need to provide her doctor’s note to the clinic on or before November 3, 2009. (Dkt. no. 24-9.) It further indicated: “failed to check in with clinic on 10-26-09. Must check in by 11-3-09 with Dr. note.” (Id.) Plaintiff contacted the Clinic the day she received the Second Notice. (Dkt. no. 24-4 at 61.) According to Plaintiff, she did not report to the Clinic by November 3, 2009, because the clinic administrator told her not to worry about the date. (Id. at 62; dkt. no. 25-1 at 19.)

At her scheduled appointment with Dr. Beckman on November 4, 2009, Plaintiff asked Dr. Beckman to release her to return to work. (Dkt. no. 25-1 at 23, 55.) By that time, Plaintiff was responding to the new medication and was “feeling a little better.” (Id. at 23; dkt. no. 24-7 at 2.) Dr. Beckman released her to return to work starting on November 5, 2009. (Dkt. no. 25-1 at 23, 55.) Plaintiff contacted Defendant’s clinic on the same day after her appointment with Dr. Beckman. (Id. at 23.) However, on November 9, 2009, Plaintiff was informed Defendant has terminated her employment for violating its “no-call, no-show” policy. (Id. at 24-25; dkt. no. 24-4 at 64.)

The Complaint asserts under the “first claim for relief’ disability discrimination under the ADA based on Defendant’s alleged failure to provide reasonable accommodation and termination of Plaintiff’s employment “for exercising her rights under the Act and because of her disability.” (Dkt. no. 1 at 3.) Defendant construes the Complaint as alleging disability discrimination and seeks ...

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