Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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1

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Ralph E. Ogden; Yuma County Sheriff's) ) Office; and Yuma County, ) ) Defendants. ) ) Thomas J. Larios,

No. CV-03-2285-PHX-SRB ORDER

This matter arises out of the termination of the employment of Plaintiff Thomas J. Larios by Defendants Ralph Ogden, Yuma County Sheriff's Office (YCSO), and Yuma County. Plaintiff alleges that he was terminated in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. § 621 et seq., and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.A. § 12101 et seq. Defendants seek summary judgment pursuant to Federal Rule of Civil Procedure 56 and Local Rule of Civil Procedure 56.11, arguing that no genuine issues of material fact exist as to Plaintiff's claims. For the reasons that follow, Defendants' Motion for Summary Judgment (Doc. 28) is granted in part and denied in part.

Prior to December 1, 2004, L.R. Civ. P. 56.1 was named Local Rule 1.10(l).
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I.

BACKGROUND As a preliminary matter, the Court notes that Plaintiff's Response to Defendants'

Motion and his supporting statement of facts are entirely lacking in references to specific portions of the record in violation of L.R. Civ. P. 56.1. Thus, the only evidence before the Court is that submitted by Defendants in connection with their motion and that contained in Plaintiff's verified First Amended Complaint. The facts will be drawn exclusively from these sources. Plaintiff first became employed as a YCSO Detention Officer in 1995 after seeking assistance in obtaining employment from Defendant Ogden, with whom he had been friends for many years. Beginning August 1, 1995, Plaintiff worked as a Warrants Officer. Plaintiff was reprimanded more than once during his time as Warrants Officer. In 1999, Plaintiff received a written reprimand for disclosing confidential information to an arrestee and in October 2001, Plaintiff received a Letter of Understanding for an insubordinate response to a superior. On May 1, 2002, Plaintiff was placed on paid suspension pending an

administrative investigation after telling his superior that he could "just stick this job up [his] ass." (Defs.' Statement of Facts (DSOF), Ex. 1, Larios Depo. at 67.) During the

administrative investigation, YCSO discovered that Plaintiff also had earlier instructed his assistant to ignore a written directive from their supervisor concerning the logging of warrants because it was "a waste of time." (DSOF, Ex. 2, Sub-Ex. C at 7, 9.) Following hearings in June 2002 concerning charges of insubordination and other acts, two of Plaintiff's supervisors, Lieutenant P.S. Anders and Captain Robert Gonzales, recommended the termination of Plaintiff's employment. On July 5, 2002, Defendant Ogden conducted a disciplinary hearing on the charges against Plaintiff and, on July 8, 2002, sustained the charges presented to him but reduced the sanction against Plaintiff from termination to demotion to the position of Security Control Officer. Miranda Ball, who had temporarily assumed the duties of Warrants Officer following Plaintiff's suspension on May 1, 2002, was permanently assigned to the Warrants Officer position after Plaintiff's demotion.

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Plaintiff performed the job of Security Control Officer for approximately two weeks before requesting and receiving leave under the Family Medical Leave Act (FMLA), 29 U.S.C.A. § 2601 et seq. Plaintiff asserted that he was physically unable to perform the duties of the Security Control Officer position­he had difficulty reading the control panel, hearing the other officers from the control booth, and standing for the required periods of time. According to Plaintiff's physician, the incapacities that prevent Plaintiff from performing the essential functions of the Security Control Officer position are permanent. Plaintiff states in his First Amended Complaint that he verbally requested and was refused "reasonable accommodation" on July 26, 2002, but no further evidence concerning that request and refusal is before the Court. On October 16, 2002, Plaintiff requested that he be reinstated as a Warrants Officer "or any position with the department that would allow [him] to perform the duties of that position" due to his inability to work as a Security Control Officer. (DSOF, Ex. 1, Sub-Ex. 6.) Plaintiff's FMLA leave was to expire on October 28, 2002. Responding by letter on October 21, 2002, Defendant Ogden informed Plaintiff that no positions existed that met Plaintiff's restrictions concerning long periods of sitting, standing, or climbing steep stairs. The October 21, 2002 letter also asked Plaintiff to meet with a human resources analyst to discuss Plaintiff's options, but Plaintiff never did so. On November 1, 2002, Plaintiff's counsel sent to Defendant Ogden a letter asserting that Plaintiff had been constructively terminated as of October 21, 2002 and demanding Plaintiff's reinstatement to the position of Warrants Officer. A hearing was held on November 27, 2002 to determine Plaintiff's eligibility to return to YCSO employment and Plaintiff stated that he could not obtain a medical release for the Security Control Officer position but felt that he could obtain one for the Warrants Officer position. Plaintiff's employment was terminated on November 29, 2002 due to his inability to return to his job as a Security Control Officer and the exhaustion of all available leave. The record of the administrative hearing specifically notes that Plaintiff may apply for any posted YCSO

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openings and/or apply for reinstatement to the Security Control Officer position upon producing a medical release to return to work. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on December 5, 2002 alleging age and disability discrimination. Following unsuccessful mediation attempts, Plaintiff's counsel informed Defendant Ogden via letter dated April 23, 2003 of Plaintiff's updated medical restrictions, which precluded climbing, squatting, or more than four hours of standing, and expressed a preference for daytime work. Defendant Ogden responded to this update with a letter dated April 25, 2003, listing one available and one unavailable YCSO position as well as ten other "County"2 positions believed to be consistent with Plaintiff's medical restrictions. Plaintiff pursued one of the positions listed, but that position ultimately proved to be a State position rather than a County job. Plaintiff stated that he also applied for other County positions not listed in the April 25, 2003 letter. On May 13, 2003, Plaintiff's counsel and Defendants' counsel had a conversation in which Plaintiff's counsel asked Defendant Ogden to consider bifurcating the Warrants/Fugitive Officer position into two positions and assigning Plaintiff to perform one of them. Defendant Ogden rejected this proposal by letter dated May 15, 2003. Plaintiff also sent a letter to Defendants via counsel on September 4, 2003, advising Defendants that Plaintiff had applied for five positions. Four of these positions were within State control and there is no evidence that the fifth position, "Extradition-Shuttle Officer-Fugitives ­ Sheriff's Office," ever existed at YCSO as a position separate from that of Warrants Officer. Plaintiff was informed of these facts via letter dated September 16, 2003 and, in the same letter, told that YCSO could not offer him anything more than a neutral employment reference. The EEOC issued a Dismissal and Notice of Rights on December 17, 2003. Plaintiff thereafter filed suit in Yuma County Superior Court on October 31, 2003. Defendants removed the action to this Court on November 20, 2003. Following Plaintiff's amendment

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A number of the positions listed as County positions were actually State positions. -4Document 44 Filed 07/15/2005 Page 4 of 13

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of his complaint on March 26, 2004, Defendants filed their motion for summary judgment on October 22, 2004. II. LEGAL STANDARDS AND ANALYSIS The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under this rule, summary judgment is properly granted when: (1) no genuine issues of material fact remain; and (2) after viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). In considering a motion for summary judgment, the Court must regard as true the nonmoving party's evidence if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S. Ct. at 2548; Eisenberg, 815 F.2d at 1289. However, the non-moving party may not merely rest on its pleadings; it must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Where the non-movant bears the ultimate burden of persuasion at trial, it must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2513-14 (1986) (holding that the plaintiff must present affirmative evidence in order to defeat a properly-supported motion for summary judgment); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592 (1968). As already noted, in this case Plaintiff has failed to produce any evidence other than that contained in his verified First Amended Complaint. That evidence provides only the barest outline of Plaintiff's claims and does not dispute Defendants' version of events. Therefore, this Court must only determine whether the evidence entitles Defendants to prevail on each of Plaintiff's claims. A. Claims Against Defendant Ogden Defendants first argue that Defendant Ogden may not be held liable under the ADA or ADEA as an individual. The ADA prohibits disability discrimination by an "employer," which is defined as a person with fifteen or more employees, "and any agent of such person." -5Case 2:03-cv-02285-SRB Document 44 Filed 07/15/2005 Page 5 of 13

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42 U.S.C.A. §§ 12111(5)(A), 12112. The ADEA similarly defines an employer as a person with a minimum number of employees and "any agent of such a person." 29 U.S.C.A. § 630(b). Although the statutory language suggests that persons acting as agents of the employer may face individual liability for ADA or ADEA violations, courts reject this construction and refuse to subject supervisory personnel and other agents of the employer, such as Defendant Ogden, to individual liability under the ADA or ADEA. See Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587-88 (9th Cir. 1993) (holding that inclusion of agents within definition of employer under Title VII and ADEA was intended to subject employers to respondeat superior liability for the acts of their employees, not to hold individuals liable in their personal capacities); Butler v. City of Prairie Village, 172 F.3d 736, 743-44 (10th Cir. 1999) (finding that "the ADA precludes personal capacity suits against individuals who do not otherwise qualify as employers under the statutory definition"); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1280-82 (7th Cir. 1995) (applying Miller in ruling that agents of employers are not individually liable under the ADA); cf. Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir. 1998) (rejecting attempts to extend liability for employment discrimination to individuals under Title VII); Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir. 1995) (same). Plaintiff wholly fails to address the issue of Defendant Ogden's liability, either in his individual or his official capacity. Absent any argument that Defendant Ogden is sued in his official capacity, considering the unavailability of an action against him in his individual capacity, and in light of the thorough lack of evidence opposing Defendants' motion for summary judgment, in violation of L.R. Civ. P. 56.1 and Fed R. Civ. P. 56, the Court finds that Defendant Ogden is entitled to summary judgment as to all claims against him. B. Age Discrimination Claim As to the remaining Defendants, YCSO and Yuma County, Defendants argue that no genuine issues of material fact remain to prevent summary judgment in favor of Defendants on Plaintiff's ADEA claim. Under the ADEA, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual -6Case 2:03-cv-02285-SRB Document 44 Filed 07/15/2005 Page 6 of 13

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with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . . ." 29 U.S.C. § 623(a)(1). To establish liability under the ADEA based on disparate treatment, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). The successful demonstration of a prima facie case via circumstantial evidence3 involves a showing that the employee was: (1) a member of the protected class (at least age 40)4; (2) performing his job satisfactorily; (3) discharged; and (4) replaced by substantially younger employees with equal or inferior qualifications. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). Defendants contend that Plaintiff has not established that he was performing his job satisfactorily, although they concede that he has established the other elements of a prima facie case of age discrimination. The proof needed to establish a prima facie case is "minimal and does not even need to rise to the level of a preponderance of the evidence," Wallis, 26 F.3d at 889; however, Plaintiff must present "sufficient evidence to permit a trier of fact to infer the fact at issue." Messick v. Horizon Indus., 62 F.3d 1227, 1229 (9th Cir. 1995); see also Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 (9th Cir. 1990). Here, Plaintiff has provided no evidence whatsoever to counter Defendant's evidence of
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A plaintiff may base his prima facie case on direct evidence of discriminatory intent or on certain circumstantial factors which raise the necessary discriminatory inference. Wallis, 26 F.3d at 889. The Plaintiff has offered no direct evidence which would lead the court to conclude without inference that Defendants acted with the intent to discriminate. The ADEA protects against discrimination of "individuals who are at least 40 years of age." 29 U.S.C. § 631(a). -7Document 44 Filed 07/15/2005 Page 7 of 13

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insubordination and other inappropriate acts. The only evidence before the Court shows that Plaintiff was insubordinate on more than one occasion, and, while Plaintiff otherwise largely was capable of performing the job of Warrants Officer by Defendants' own evaluation, such insubordination violates Defendants' General Rules of Conduct and is cause for discipline or dismissal under the Yuma County Personnel Rules. Absent any evidence to suggest that Plaintiff was performing his job satisfactorily, he has not established a prima facie case of discrimination, and Defendants are entitled to summary judgment in their favor. Even if Plaintiff could make a prima facie showing of discrimination, Defendants have met their burden of production by showing that Defendants' decision to demote Plaintiff was based on legitimate, nondiscriminatory reasons. Defendants' evidence articulates that Plaintiff was demoted in response to his acts of insubordination, and such acts have previously been found to be legitimate, nondiscriminatory reasons for adverse employment action. See, e.g., Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999). Thus, it falls to Plaintiff to produce some evidence that these reasons were a pretext for discriminatory decisionmaking. Merely denying the credibility of Defendants' witnesses or failing to produce any facts which create a genuine issue of material fact for trial will result in summary judgment in favor of Defendants. Coleman, 232 F.3d at 1281; Lindahl v. Air France, 930 F.2d 1434, 1437-38 (9th Cir. 1991); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983). In this case, the only evidence before the Court which arguably demonstrates the pretextual nature of Defendants' proffered reasons for demotion is deposition testimony by Plaintiff that some of Defendants' employees referred to Plaintiff as "old man." However, Plaintiff testified that he understood these remarks to be made in an affectionate spirit by all of his colleagues except one: Lieutenant Anders. On further questioning about being called "old man" by Lieutenant Anders, Plaintiff stated both that it was insulting and that he understood it to have been done in the spirit of their casual relationship. Plaintiff also testified that he often referred to others as "boy" or "girl," and the transcript of an administrative hearing shows that Plaintiff referred to Defendant Ogden as "old kid" during -8Case 2:03-cv-02285-SRB Document 44 Filed 07/15/2005 Page 8 of 13

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the hearing. Without more, mere references to Plaintiff as "old man" by Defendants' employees does not rise above the level of "'stray remarks' . . . insufficient to establish discrimination." Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990). There is no evidence that calling Plaintiff "old man" was tied to decisionmaking regarding his employment. See Coleman, 232 F.3d at 1284 (use of words suggestive of age does not give rise to genuine issue of material fact as to pretext); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1997) (comment that "old timers" should be gotten rid of because they would not "kiss [supervisor's] ass" is not directly tied to an adverse employment action and insufficient to raise a genuine issue of material fact); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (remark by employer that "we don't necessarily like grey hair" was not tied to plaintiff's termination and was insufficient evidence of discrimination). Defendants are therefore entitled to summary judgment on the ADEA claim both because Plaintiff has failed to establish a prima facie case of discrimination, and because even if Plaintiff were able to establish a prima facie case, he has not provided evidence sufficient to demonstrate pretext at the third step of the age discrimination inquiry. C. Disability Discrimination Claim Defendants also seek summary judgment in their favor with respect to Plaintiff's claim that they improperly failed to provide a reasonable accommodation for his disability pursuant to the ADA. The ADA prohibits employers from discriminating against their employees by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A). Although Defendants suggest that Plaintiff is not disabled, they concede that it is not "entirely clear" whether his medical restrictions reach the level of disability protected by the ADA.5

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To qualify as disabled, an individual must be substantially limited in one or more major life activities, which include not only working, but also seeing, speaking, -9Document 44 Filed 07/15/2005 Page 9 of 13

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Defendants also contend that Plaintiff is not a "qualified individual" within the meaning of the ADA based on a mistaken reading of the law that would require an individual to be substantially limited in the major life activity of working to obtain the protections of the ADA. The "qualified individual" provision requires that an individual with a disability "with or without reasonable accommodation, [be able to] perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see also Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000), overruled on other grounds, 535 U.S. 391, 122 S. Ct. 1516 (2002) (finding that an individual who cannot perform the functions of his current position, but can perform the essential functions of a reassignment position, is a "qualified individual"). While there is some medical opinion evidence that Plaintiff cannot perform the essential functions of the Security Control Officer position, there is no evidence concerning his ability to perform other desired positions, and the Court cannot say that no genuine issues of material fact remain concerning Plaintiff's status as a "qualified individual with a disability." Next, the Court turns to whether Defendants satisfied their obligation to attempt to accommodate Plaintiff's continued employment. Once an employee makes known that he needs an accommodation, the employer and employee are required to participate together in an interactive process to decide upon a reasonable accommodation. Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). "The interactive process requires: (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee's request; and (3) offering an accommodation that is reasonable and effective." Id. (quoting E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 951 (7th Cir. 2001) (en banc)). The employer is only liable for failure to provide a reasonable accommodation "'where the employer bears responsibility for the breakdown' in the interactive process." Id. (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996)). The employer's refusal to provide the specific

learning, performing manual tasks, and other activities. 29 C.F.R. § 1630.2(g), (i). - 10 Document 44 Filed 07/15/2005 Page 10 of 13

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accommodation requested or preferred by the employee does not translate to responsibility for the breakdown in the interactive process and its resultant ADA liability. Id. On the evidence now before the Court, issues of material fact remain as to whether Defendants fulfilled their duty to offer reasonable and effective accommodations. It is undisputed that Plaintiff's requests for accommodation for his disability began after his demotion from Warrants Officer to Security Control Officer, while he was on FMLA leave. Plaintiff stated that he first requested accommodation on July 26, 2002; contained in the record is evidence of a request for accommodation in the form of a letter dated October 16, 2002. In that letter, Plaintiff requested a meeting with Defendant Ogden "to discuss reinstatement of my job as a Warrants Officer or any position with the department that would allow me to perform the duties of that position." (DSOF, Ex. 1, Sub-Ex. 6.) Defendants responded that no available positions met Plaintiff's medical restrictions and asked him to meet with a human resources analyst, but he failed to do so. Plaintiff's subsequent communications with Defendants, which continued after Plaintiff's termination, sought a return to the Warrants Officer position or to a proposed position that would consist of part of the Warrants Officer position. While seeking a particular accommodation, Plaintiff demonstrated that he was willing to continue the interactive process by providing an update concerning his medical restrictions on April 23, 2003. See Velente-Hook v. Eastern Plumas Health Care, 368 F. Supp. 2d 1084, 1099 (E.D. Cal 2005) (providing letter of information about medical restrictions is participation in interactive process). Via letter dated April 25, 2003, Defendants informed Plaintiff of two possible positions with YCSO, one available6 and one unavailable, and a mix of ten County-wide and State positions. Defendants noted that they had "no information as to the availability of these positions nor have I obtained copies of the job descriptions" and referred Plaintiff to Yuma County Human Resources for more information. Defendants asked Plaintiff to notify them

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by May 13, 2003 if he intended to pursue any of the positions. Although Plaintiff never notified Defendants of his intentions, he pursued one listed position that later proved to be a State job over which Defendants had no control. Of five other positions pursued by Plaintiff, four also were State positions and one position never existed. Eventually, after attempts at mediation, Defendants informed Plaintiff that they were unable to find a position for his despite their best efforts and that they could only offer him a neutral reference. The Court finds that genuine issues of material fact remain regarding Defendants' satisfaction of their duty of reasonable accommodation. Evidence exists that Plaintiff participated in the interactive process in good faith by updating Defendants on his medical restrictions, Velente-Hook, 368 F. Supp. 2d at 1099; contra Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996) (finding that failure to provide medical information about disability constituted responsibility for breakdown of interactive process); Rowe v. City & County of San Francisco, 186 F. Supp. 2d 1047, 1053 (N.D. Cal. 2002) (noting that employee who fails to provide necessary medical information to employer is responsible for breakdown), continuing to request accommodations, and applying for positions suggested by Defendants, although most of those positions proved to be outside the control of the County. For their part of the interactive process, Defendants had an "affirmative duty to explore further methods of accommodation." Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001). Defendants are not required to provide the exact accommodation desired by Plaintiff, Zivkovic, 302 F.3d at 1089, especially where it involves a promotion, 29 C.F.R. Pt. 1630, App. § 1630.2(o), creating a new position, Watkins v. Ameripride Serv., 375 F.3d 821, 829 (9th Cir. 2004); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000), or assigning the employee to an already-occupied position, Watkins, 375 F.3d at 829. Defendants seem to acknowledge that they were not able to accommodate Plaintiff, but the ADA "does not allow employers to avoid reasonable accommodation absent a showing of undue hardship." Barnett, 228 F.3d at 1113. Defendants have not argued that accommodation of Plaintiff was not possible due to undue hardship as defined by 42 U.S.C. - 12 Document 44 Filed 07/15/2005 Page 12 of 13

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§ 12112(b)(5)(A), and because this issue has not been raised nor briefed and no evidence has been submitted, the Court cannot make any such determination. Cf. Humphrey, 239 F.3d at 1136 n.14 (declining to address undue hardship argument where it was not raised by the Defendants); see also Morton v. United Parcel Serv., 272 F.3d 1249, 1256 n.7 (9th Cir. 2001) (doubting likelihood of establishing on summary judgment that no reasonable accommodations were possible). Because there are genuine issues of material fact as to Defendants' good-faith participation in the interactive process and the availability of a reasonable accommodation, summary judgment is inappropriate, Barnett, 228 F.3d at 1116, and Defendants' motion is denied. IT IS ORDERED granting in part Defendants' Motion for Summary Judgment (Doc. 28) with respect to all claims against Defendant Ralph E. Ogden. IT IS FURTHER ORDERED granting in part Defendants' Motion for Summary Judgment (Doc. 28) with respect to Plaintiff's claim under the ADEA against the remaining Defendants. IT IS FURTHER ORDERED denying in part Defendants' Motion for Summary Judgment (Doc. 28) with respect to Plaintiff's claim under the ADA against the remaining Defendants. DATED this 15th day of July, 2005.

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