Dugan v. Charles Schwab & Company Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Robert Dugan,
Plaintiff,
v.
Charles Schwab & Company Incorporated,
Defendant.
No. CV-23-02540-PHX-SHD
ORDER
SEALED
Pending is Plaintiff Robert Dugan’s motion for partial summary judgment, (Doc.
92), and Defendant Charles Schwab & Company Incorporated’s (“Schwab”) motion for
summary judgment, (Doc. 99). Both motions are fully briefed. (Docs. 105, 108, 109, 111.)
For the reasons stated below, Schwab’s motion for summary judgment will be granted,
and Dugan’s motion will be correspondingly denied.1
I. BACKGROUND
This case arises from Dugan’s termination from Schwab in March 2022. In
summary, Dugan argues that Schwab violated the Americans with Disabilities Act
(“ADA”) when it fired him for taking anti-anxiety medication prescribed for his disability,
Generalized Anxiety Disorder, during a work trip. Schwab maintains that it terminated
Dugan because it had a reasonable, good faith belief that he violated Schwab’s Drug and
Alcohol Policy. The relevant facts are summarized below and are undisputed unless
otherwise noted.2
1 Schwab requested oral argument, but I find that oral argument is not necessary, so
the motions are decided without a hearing. See LRCiv 7.2(f).
2 Citations are primarily to the materials associated with Schwab’s Motion for
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A. Dugan’s Hiring and the Voluntary Self-Identification of Disability Form
Schwab hired Dugan as a Private Client Advisor on October 6, 2021. (Doc. 100 at
¶ 1; Doc. 106 at 1, ¶ 1.)3 When he was hired, Dugan filled out a “Voluntary Self-
Identification of Disability” form (“Self-Identification Form”). (Doc. 106-3 at 4.) The
Self-Identification Form states that, as a federal contractor, Schwab is “required to measure
progress toward having at least 7% of [its] workforce be individuals with disabilities” and
therefore requests that employees self-identify if they have a disability. (Id.) It further
specifies that disclosing a disability is entirely voluntary, and that any such disclosure “will
be maintained confidentially and not be seen by selecting officials or anyone else involved
in making personnel decisions.” (Id.)
Under a section titled, “How do you know if you have a disability?” the form recites
the ADA’s definition of disability and provides a non-exhaustive list of examples. (Id. at
5.) The examples range from autism and autoimmune disorders to celiac disease, epilepsy,
deafness, depression or anxiety, and missing or partially missing limbs. (Id.) The Form
then has three options for employees to select: (1) “Yes, I Have A Disability, Or Have A
History/Record Of Having A Disability”; (2) “No, I Don’t Have A Disability, Or A
History/Record Of Having A Disability”; or (3) “I Don’t Wish To Answer.” (Id.) Dugan
checked the “Yes” box. (Id.)
Senior Team Manager J. Wagner4 was Dugan’s direct supervisor. (Doc. 100 at ¶ 3;
Doc. 106 at 1, ¶ 3.) He attests that he never received Dugan’s Self-Identification Form.
(Doc. 100 at ¶ 60; Doc. 100-2 at 13; Doc. 106 at 12, ¶ 60.) Dugan asserts that, in addition
to the Self-Identification Form, “Schwab’s internal HR records confirm that [he] disclosed
his anxiety disorder during the hiring process in October 2021.” (Doc. 92-3 at ¶ 3.) The
Summary Judgment, because that motion addresses all of Dugan’s claims and largely
captures the arguments made and evidence presented in Dugan’s Motion for Partial
Summary Judgment. I have thoroughly reviewed all materials submitted and reference the
materials associated with Dugan’s Motion for Partial Summary Judgment where necessary.
3 Because Dugan duplicates paragraph numbers, I use both page and paragraph
numbers when citing to Dugan’s Controverting Statement of Facts.
4 To protect the privacy of individuals referenced herein, I refer to non-party
individuals by their first initial and last name only.
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HR records to which Dugan refers are notes documenting his termination in March 2022.
(Doc. 92-2 at 3.) They state that, on March 16, 2022, Dugan said to Wagner, “that he told
them (Managers) about his anxiety when he was hired.” (Id. at 3.) Dugan testified that,
prior to the events below, he “never requested a reasonable accommodation . . . because
[he] never needed an accommodation.” (Doc. 100 at ¶ 13; Doc. 106 at 3, ¶ 13.)
B. Schwab’s Drug and Alcohol Policy
Schwab maintains a Drug and Alcohol Policy which states that “[a]ny employee
who is . . . on Company time” and is “unfit to perform his or her job because of being under
the influence of illegal drugs or alcohol . . . may be subject to disciplinary action up to and
including termination.” (Doc. 100 at ¶ 5; Doc. 106 at 2, ¶ 5.) The Drug and Alcohol Policy
also provides that employees will be equally subject to disciplinary action and termination
if they are unfit to perform their job because they are under the influence of legal drugs—
that is, over-the-counter or prescription medications. (Id.) Finally, the Drug and Alcohol
Policy makes clear that any unprofessional behavior that occurs while under the influence
of alcohol and representing Schwab “at any location and time” may result in termination.
(Doc. 106 at 2, ¶ 6; Doc. 106-3 at 155.) Dugan understood that, as an employee, he was
expected to comply with the Drug and Alcohol Policy. (Doc. 100 at ¶ 7; Doc. 106 at 2,
¶ 7.)
C. Dugan’s Trip to San Diego and Subsequent Termination
On Monday, March 14, 2022, Dugan traveled from Phoenix, Arizona to San Diego,
California for a work-sponsored business trip as a representative of Schwab. (Doc. 100 at
¶¶ 8, 10; Doc. 106 at 2, ¶¶ 8, 10.) The purpose of the trip was to “meet with clients and
colleagues.” (Doc. 100 at ¶ 8; Doc. 106 at 2, ¶ 8.) Dugan asserts that there were no client
meetings scheduled for the afternoon of March 14, and that it was solely a “travel/setup”
day, but Schwab maintains that Dugan was expected to meet with clients after his flight
landed in San Diego. (Doc. 100 at ¶ 11; Doc. 106 at 2, ¶ 8). Two of Dugan’s co-workers—
J. Dorrance and D. Antoniou—traveled with him. (Doc. 100 at ¶ 9; Doc. 106 at 2, ¶ 9.)
All three Schwab employees took the same flight, which departed at 8:10 a.m. (Id.)
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When Dugan arrived at the airport, he went to a bar, where he ordered two tequilas
on the rocks. (Doc. 100 at ¶ 17; Doc. 106 at 3, ¶ 17.) Dorrance arrived shortly thereafter
and saw Dugan at the bar with two empty cocktail glasses. (Doc. 100 at ¶ 19; Doc. 106 at
3, ¶ 19.) Dugan contends that he did not consume the drinks, but instead “poured [them]
into a tumbler as an anxiety coping mechanism.” (Doc. 100 at ¶ 20; Doc. 106 at 4, ¶ 20.)
Dugan and Dorrance then boarded the plane, where they sat next to each other.
(Doc. 100 at ¶ 21; Doc. 106 at 4, ¶ 21.) Once boarded, Dugan ordered another alcoholic
beverage. (Doc. 100 at ¶ 22; Doc. 106 at 4, ¶ 22.) Dorrance attests that he witnessed Dugan
consume the alcohol. (Doc. 100 at ¶ 23; Doc. 100-2 at 50.) Although Dugan does not
dispute that he ordered a drink, he does dispute that he consumed it, stating that he put it,
unopened, into his bag as a “coping mechanism.” (Doc. 100 at ¶ 24; Doc. 106 at 4–5,
¶¶ 23–24.) In his declaration, Dugan explains: “The sole purpose of possessing alcohol
was to serve as a psychological reassurance tool a non-consumed, anxiety-management
measure to mitigate the risk of panic symptoms during air travel.” (Doc. 106-2 at ¶ 13.)
What happened next is largely disputed. According to Dorrance, Dugan began
behaving inappropriately toward other passengers on the plane, including “reaching over
Dorrance [to] touch an unknown female passenger sitting in the window seat, grabbing her
hand and touching her hair, without her permission” and “making sexually charged
comments towards her.” (Doc. 100 at ¶¶ 25–26.) Dugan also spoke to the flight attendant
in German, and was observed “slurring his words, speaking incoherently, and appear[ed]
extremely intoxicated.” (Id. at 5, ¶¶ 27–28.) While Dugan admits that he interacted with
the young woman and flight attendant, he disputes Schwab’s characterization of his
conduct and demeanor. (See Doc. 106 at 5, ¶¶ 24–27.) Dugan denies that he was slurring
his words and that he appeared to be intoxicated. (Id. at 5, ¶ 28.) At most, he contends he
was “antsy, asking the same questions, and unable to focus,” which are behaviors
consistent with having anxiety. (Id. at 5, ¶ 28; Doc. 106-2 at ¶ 22.)
Upon landing in San Diego, Dugan and Dorrance met up with Antoniou. (Doc. 100
at ¶ 29; Doc. 106 at 6, ¶ 29.) The group took the airport tram to the rental car facility.
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(Doc. 100 at ¶ 30; Doc. 106 at 6, ¶ 30.) While on the tram, Dorrance and Antoniou
witnessed Dugan making “inappropriate and ageist remarks directly to a female passenger
who was in San Diego for a funeral, suggesting that she would be dead soon due to her
age.” (Doc. 100 at ¶ 31.) Dugan disputes making such remarks but acknowledges that he
“later described this woman as an ‘older lady.’” (Doc. 106 at 6, ¶¶ 30–31.)
During the drive to the hotel, Dugan was reportedly “slurring his words, speaking
loudly, asking repetitive questions, and acting in an erratic and aggressive manner.” (Doc.
100 at ¶¶ 33–34.) When they arrived at the hotel, Dorrance overheard Dugan ask what
time the hotel bar opened and witnessed him “attempt[] to flirt with the hotel hostess.” (Id.
at ¶¶ 35–36.) Dugan denies that he behaved inappropriately during the drive to the hotel
or upon their arrival, instead stating that he “joked about bar hours.” (Doc. 106 at 6–7,
¶¶ 33–36.)
At this point, Antoniou texted Wagner—Dugan’s direct supervisor—and told him
that Dugan was either “drunk or high.” (Doc. 100 at ¶ 37.) After Antoniou described
Dugan’s behavior, Wagner promptly called Dugan. (Id. at ¶¶ 37–39.) Wagner told Dugan
that there were some concerns about his behavior and instructed Dugan to stay at the hotel
and not to go into the office. (Id. at ¶¶ 39, 43.) During the phone call, Wagner heard Dugan
slurring his words. (Id. at ¶ 40.) Dugan explained to Wagner that he had a fear of flying
and had taken prescribed medication similar to Xanax for his anxiety. (Id. at ¶ 41.)
According to Wagner, Dugan also stated that he had taken double his prescribed dosage
that morning. (Id. at ¶ 42.) Shortly after the call, Dugan texted Wagner that he was “good
to good [sic] now to the branch.” (Id. at ¶ 44.) Wagner called Dugan and instructed him
to go back to Phoenix. (Id. at ¶¶ 45–46.) Dugan largely agrees that these events happened,
but disputes that he was slurring his words during the phone call, that he said his anxiety
is limited to a fear of flying, and that he told Wagner he took a double dose of his
medication. (Doc. 106 at 7–9, ¶¶ 37–46.)
When Wagner instructed Dugan to return to Phoenix, Dugan texted Wagner a
picture of a prescription bottle for clonazepam and stated that the medication can cause
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slurred speech. (Doc. 100 at ¶ 47; Doc. 106 at 9, ¶ 47.) The bottle in the photograph is
labeled clonazepam, and the label indicates that it was prescribed to Dugan to take “twice
a day as needed for anxiety.” (Doc. 106-3 at 32.) It does not indicate when or by whom it
was prescribed. (Id.) Dugan also offered to provide a doctor’s note “saying [clonazepam]
can cause slurred speech” if one was needed “for the file.” (Doc. 92-2 at 28; Doc. 92-1 at
¶ 8.)
At this time, Dugan also sent several Microsoft Teams messages to Dorrance and
Antoniou stating that he was “headed home,” “took too many anti-anxiety meds,” and
“took some clonazepam, ‘Xanax,’ apparently too much” because he had “a lot of anxiety
flying.” (Doc. 100 at ¶¶ 50–53; Doc. 106 at 9–10, ¶¶ 50–53.) Dugan stated that these
messages were not admissions of impairment, but were instead an attempt to “elicit
feedback” from Dorrance and Antoniou in order to confront what he believed was
misinformation being spread about him. (Doc. 106 at 9–10, ¶¶ 50–53.) He further asserts
that the statement that he had taken “too much” medication was “not a literal admission
but shorthand reflecting how others . . . were unfairly perceiving him.” (Id. at 10, ¶ 52.)
On the flight back to Phoenix, Dugan ordered and consumed an alcoholic drink—a fact he
does not dispute. (Doc. 100 at ¶ 54; Doc. 106 at 10, ¶ 54.)
The next day, March 15, 2022, Wagner spoke with Dorrance about Dugan’s
behavior on the trip to San Diego. (Doc. 100 at ¶ 55; Doc. 106 at 10, ¶ 55.) Dorrance told
Wagner that he had observed Dugan drinking alcohol on the outbound flight and had seen
him at the airport bar that morning with two empty cocktail glasses in front of him. (Doc.
100 at ¶ 56.) He then relayed the events above and reiterated that Dugan seemed
intoxicated and had been behaving inappropriately. (Doc. 100 at ¶ 57.) Dugan disputes
Dorrance’s version of events but does not appear to dispute that Dorrance told this to
Wagner. (See Doc. 106 at 11, ¶¶ 56–57.)
On March 16, 2022, two days after the incident, Wagner fired Dugan. (Doc. 100 at
¶ 58; Doc. 106 at 12, ¶ 58.) Schwab maintains that Dugan was fired for violating the Drug
and Alcohol Policy. (Doc. 100 at ¶ 58.) Dugan asserts that “Schwab’s records cite
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different reasons” and that he “was told he was terminated for taking prescription
medication that could affect his ability to work.” (Doc. 106 at 12, ¶ 58.)
D. Procedural History
Dugan filed this action on December 8, 2023. (Doc. 1.) Dugan asserts two counts:
(1) discrimination under the Americans with Disabilities Act (“ADA”), and (2) retaliation
under the ADA and Title VII of the Civil Rights Act. (Id. at 2–3.) He alleges that Schwab
fired him because of his disability—specifically, because he took clonazepam on his flight
for his Generalized Anxiety Disorder—and that Schwab did not provide him with a
reasonable accommodation. (Id.) With respect to the retaliation claim, Dugan alleges that
Schwab fired him for requesting a reasonable accommodation for his anxiety. (Id.)
Schwab answered the Complaint on January 8, 2024. (Doc. 7.) On August 15,
2025, Dugan moved for partial summary judgment on his ADA discrimination claim for
failure to provide a reasonable accommodation. (Doc. 92.) Schwab responded, (Doc. 109),
and Dugan replied, (Doc. 111). Also on August 15, 2025, Schwab moved for summary
judgment as to all of Dugan’s claims. (Doc. 99.) Dugan responded, (Doc. 105), and
Schwab replied, (Doc. 108).
II. LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). Not all factual disputes are material or genuine, however:
a “fact is ‘material’ only if it might affect the outcome of the case, and a dispute is ‘genuine’
only if a reasonable trier of fact could resolve the issue in the non-movant’s favor.” Fresno
Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Courts “must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inference[s] in the nonmoving party’s favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451,
459 (9th Cir. 2018). “Summary judgment is improper where divergent ultimate inferences
may reasonably be drawn from the undisputed facts.” Fresno Motors, 771 F.3d at 1125
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(quotation marks omitted).
At summary judgment, there are shifting burdens of production. A party moving
for summary judgment “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). “In order to carry its burden
of production, the moving party must either produce evidence negating an essential element
of the nonmoving party’s claim or defense or show that the nonmoving party does not have
enough evidence of an essential element to carry its ultimate burden of persuasion at trial.”
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
If the “moving party carries its burden of production, the nonmoving party must
produce evidence to support its claim or defense.” Id. at 1103 (citations omitted). “If the
nonmoving party fails to produce enough evidence to create a genuine issue of material
fact, the moving party wins the motion for summary judgment.” Id. (citations omitted).
“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249. “If the
evidence is merely colorable or is not significantly probative, summary judgment may be
granted.” Id. at 249–50 (citations omitted). At bottom, the “inquiry as to whether a genuine
issue exists will be whether the evidence presented is such that a jury applying that
evidentiary standard could reasonably find for either the plaintiff or the defendant.” Id. at
255.
When a litigant proceeds pro se, courts must construe their filings liberally.5
Erickson v. Pardus, 551 U.S. 89, 127 (2007) (per curiam); Baker v. McNeil Island
Corrections Ctr., 859 F.2d 124, 127 (9th Cir. 1988). However, “[a] district court does not
have a duty to search for evidence that would create a factual dispute” at summary
judgment on a pro se litigant’s behalf. Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir.
5 For this reason, Schwab’s objections to Dugan’s Controverting Statement of Facts
will not be addressed. (See Doc. 108 at 2–3.)
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2007) (citations omitted).
III. DISCUSSION
Schwab moves for summary judgment on all of Dugan’s claims including (1) his
discrimination claims under the ADA, which are based on his termination and Schwab’s
alleged failure to accommodate his disability, and (2) his retaliation claims under the ADA
and Title VII. (Doc. 99.) Dugan moves for summary judgment only as to his failure to
accommodate claim. (Doc. 92.) I will first address Dugan’s ADA discrimination claims,
before turning to his ADA retaliation claim, and finally, his Title VII retaliation claim.
A. ADA Discrimination Claims6
The ADA prohibits employers from “discriminat[ing] against a qualified individual
on the basis of disability in regard to . . . [the] terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). Employers engage in unlawful discrimination when
they discharge an employee because of their disability. See id. Failure to make “reasonable
accommodations to known physical or mental limitations of an otherwise qualified
individual with a disability” also constitutes discrimination under the ADA. Id. at
§ 12112(b)(5)(A); Weldeyohannes v. Washington, 162 F.4th 972, 976 (9th Cir. 2025).
To establish a prima facie case of discrimination under the ADA, a plaintiff must
show that “(1) he is disabled under the ADA; (2) he is a qualified individual, in that he can
perform the essential functions of his job; and (3) that [the] defendant failed to provide a
requested reasonable accommodation . . . or terminated him because of [his] disability.”
Vinson v. General Motors LLC, 2022 WL 1540169, at *4 (D. Ariz. 2022) (collecting cases).
If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its adverse employment
action. See Raytheon Co. v. Hernandez, 540 U.S. 44, 49–50 (2003) (applying McDonnell–
Douglas burden shifting framework to ADA disability discrimination claim). When a
nondiscriminatory reason is offered, “the presumption of intentional discrimination
disappears,” and the plaintiff must offer evidence demonstrating that the employer’s
6 Dugan’s wrongful termination and failure-to-accommodate claims are addressed
together because both are discrimination claims under the ADA.
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explanation for the adverse action was a pretext. Id. at 49 n.3.
To establish a claim under the ADA a plaintiff must first show that they have a
disability. Vinson, 2022 WL 1540169, at *4. A plaintiff’s failure to prove they are disabled
under the ADA is fatal to a discrimination claim whether based on a failure-to-
accommodate or wrongful termination theory. See id. A person has a disability under the
ADA if they have “(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of such impairment; or (C) [are]
regarded as having such an impairment.” 42 U.S.C. § 12102(1).
Critically, impairment alone is not sufficient to establish a disability under the ADA.
See Vinson, 2022 WL 1540169, at *5 (finding that the plaintiff had not established a
disability where there was “no medical evidence presented as to what life activities are
substantially limited by his condition”); see also Marquez v. Glendale Union High Sch.
Dist., 2018 WL 4899603, at *15 (D. Ariz. 2018) (“[J]ust because cancer is capable of
qualifying as a disability under [the ADA] does not mean that Plaintiff’s brain cancer
necessarily constitutes a disability in this case.”). Plaintiffs must also show that their
impairment substantially limits one or more major life activities. Sanchez v. United Parcel
Service Inc., 2012 WL 5868769, at *2 (D. Ariz. 2012). “Whether a plaintiff is substantially
impaired in such life activities . . . is an individualized determination which requires
consideration of the nature, severity, duration, and impact of the impairment.” Id. (citations
omitted); see also Rohr v. Salt River Project Agric. Improvement and Power Dist., 555
F.3d 850, 858–59 (9th Cir. 2009).
At the summary judgment stage, plaintiffs need not provide “comparative or
medical evidence . . . to establish a genuine issue of material fact regarding the impairment
of a major life activity.” Sanchez, 2012 WL 5868769 at *2 (citing Head v. Glacier N.W.
Inc., 413 F.3d 1053, 1058 (9th Cir. 2005)). That said, “[c]onclusory declarations are
insufficient to raise a question of material fact.” Id. (quotation marks omitted); see also
Rohr, 555 F.3d at 859 (“To survive summary judgment, an affidavit supporting the
existence of a disability must not be merely self-serving and must contain sufficient detail
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to convey the existence of an impairment.” (cleaned up)).
1. Dugan’s Medical Records
To support his claim that he has a disability, Dugan offers medical records that
confirm that he has Generalized Anxiety Disorder.7 (Doc. 103-3 at 147–153.) These
records indicate that he has been taking clonazepam since at least 2017 to relieve his
symptoms. (See id. at 147.) The records do not comment on the frequency with which he
takes clonazepam, except to say that he takes it “as needed,” or, in one instance, “very
seldom.” (Id.) The medical records do not indicate what specific symptoms Dugan
experiences because of his anxiety, and they are silent as to any effect Dugan’s anxiety has
on his major life activities. (Id.) Thus, while Dugan’s medical records establish that he
has an impairment, they do not raise a genuine issue of material fact as to whether he has
a disability because they have no bearing on whether his anxiety disorder “substantially
limits one or more of his major life activities.” See Vinson, 2022 WL 1540169, at *4
(quoting 42 U.S.C. § 12102(1)).
2. Dugan’s Declaration
Dugan also relies on his declaration to establish that he has a disability. Dugan’s
declaration states that his Generalized Anxiety Disorder “substantially limits several major
life activities, including sleeping, interacting with others, and sometimes even leaving [his]
home.” (Doc. 106-2 at ¶ 11.) It further states that in “high stress or triggering
environments” he experiences “intense physical and cognitive symptoms including
shortness of breath, blurred vision, difficulty hearing, trouble concentrating, and impaired
verbal communication.” (Id.) Dugan states that without clonazepam, his symptoms
“significantly impair [his] ability to perform basic tasks, including working and
communicating effectively with others.” (Id.)
Dugan’s declaration is insufficient to create a genuine issue of material fact as to
7 In his Declaration and briefing, Dugan states that he also has Panic Disorder. (See,
e.g., Doc. 92 at 1; Doc. 92-1 2, ¶ 12.) His medical records only indicate that he has
Generalized Anxiety Disorder. To the extent Dugan’s Panic Disorder is a distinct diagnosis
or impairment, he has failed to show it is a disability under the ADA for the same reasons
as articulated for his Generalized Anxiety Disorder.
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whether his Generalized Anxiety Disorder amounts to a disability. While it describes some
of Dugan’s symptoms, it does not provide any insight into their “severity, duration, and
impact” with the requisite level of detail See Sanchez, 2012 WL 5868769, at *2 (granting
summary judgment against plaintiff whose declaration conclusorily identified limitations
stemming from his injuries, but failed to provide sufficient detail to allow the court to
determine whether his injuries substantially impaired any major life activities). Regarding
the impact of his disorder, Dugan’s conclusory statements that his anxiety “substantially
limits several major life activities” or “significantly impair[s] [his] ability to do basic tasks”
are not enough to create a genuine issue of material fact. See id. Dugan provides no
evidence of the frequency or duration of his symptoms. He does not state how often he has
difficulty sleeping, interacting with others, or leaving his home, nor does he explain which
“high-stress or triggering environments” induce his anxiety symptoms, how frequently he
encounters those circumstances, or how long they last. See Marquez, 2018 WL 4899603,
at *15 (holding that the plaintiff failed to raise a genuine dispute of material fact as to
whether she had a disability where she did not, among other things, “discuss the severity
or expected duration of [her] impairment,” or “allege[] that [her] symptoms impact[ed] her
ability to work”). In short, Dugan’s conclusory statements about the effects of his anxiety
do not raise a genuine issue of material fact.8 This is especially so where the
uncontroverted evidence establishes that Dugan never sought an accommodation or
otherwise informed his manager of his anxiety—or any purported limitations to substantial
life activities—until after the incidents on March 14, 2022. (See, e.g., Doc. 100-2 at 5–6
(Dugan Deposition at 27:18–28:14).).
3. Regarded As Disabled
Dugan argues that he has shown a disability under the ADA because Schwab
regarded him as disabled when it “labeled him unfit to perform and reported behavior
8 Dugan argues that, as a matter of law, Generalized Anxiety Disorder is a disability
recognized by the ADA, citing Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128,
1133–34 (9th Cir. 2001). (Doc. 92 at 10; Doc. 105 at 4.) Humphrey does not address
Generalized Anxiety Disorder, nor does it stand for the proposition that a plaintiff need
only show an impairment to establish that they are disabled under the ADA.
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inconsistent with policy.” (Doc. 105 at 4.) “In regarded-as cases . . . a plaintiff must show
that the employer knew that the employee had an actual impairment or perceived the
employee to have an impairment, and that the impairment was not transitory or minor.”
Equal Emp. Opportunity Comm’n v. BNSF Ry. Co., 902 F.3d 916, 924 (9th Cir. 2018).
Dugan has not cited any evidence suggesting that Wagner knew he had Generalized
Anxiety Disorder or perceived him as having such. (Doc. 105 at 4.) At most, Wagner was
aware that Dugan suffered some flight-related anxiety and took clonazepam to ease his
symptoms. (Doc. 100-2 at 26 –27 (Dugan testifying that he told Wagner he was “afraid of
flying” and took “prescription medication for [his] anxiety”); id. at 40, ¶ 8 (Wagner’s
declaration stating that Dugan told him he had a “fear of flying”).)
Even assuming Wagner knew or perceived Dugan’s flight-related anxiety to be an
“impairment” there is no evidence it “was not transitory or minor.” See Sutter v. Shriners
Hospitals for Children, 2023 WL 5275496, at *5 (D. Ariz. 2023) (holding that plaintiff
was not “regarded as” disabled where employer knew she was suffering from work-related
stress, but was not aware of the extent, severity, or underlying cause of that stress). Dugan
admits that, before his flight to San Diego, he never requested a reasonable accommodation
from Schwab. (Doc. 106 at 3, ¶ 13.) Indeed, even considering all the evidence submitted
at summary judgment regarding Dugan’s Generalized Anxiety Disorder—of which
Wagner was not aware—it is still unclear whether Dugan’s anxiety disorder is more than
a “transitory or minor impairment.” There is thus no triable issue as to whether Wagner
(or anyone at Schwab) regarded Dugan as disabled.
Because Dugan has not presented evidence demonstrating that his Generalized
Anxiety Disorder “substantially limits one or more of his major life activities,” he has not
shown that there is a genuine dispute concerning whether he has a disability under the
ADA, and his claims of discrimination under the ADA necessarily fail. See Vinson, 2022
WL 1540169, at *4. I need not reach the remaining elements of Dugan’s ADA
discrimination claims.9 Accordingly, Schwab is entitled to summary judgment on Dugan’s
9 Even assuming Dugan has a disability under the ADA and could state a prima facie
case of discrimination, he has not presented sufficient evidence to demonstrate a triable
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ADA discrimination claims for wrongful termination and failure to accommodate.
Dugan’s motion for partial summary judgment as to the failure to accommodate claim will
correspondingly be denied.
B. ADA Retaliation Claims
“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) suffered an adverse employment
action; and (3) there was a causal link between the two.” Pardi v. Kaiser Found. Hospitals,
389 F.3d 840, 849 (9th Cir. 2004) (citing Brown v. City of Tucson, 336 F.3d 1181, 1186–
87 (9th Cir. 2003)). If the plaintiff establishes a prima facie case, then the employer must
offer legitimate, nondiscriminatory reasons to explain any adverse employment action. Id.
When an employer does so, “the burden shifts back to the employee to demonstrate a triable
issue of fact as to whether such reasons are pretextual.” Id.
Schwab first argues that it is entitled to summary judgment because Dugan has not
shown that he participated in a protected activity. (Doc. 99 at 16.) Next, it asserts that,
even assuming Dugan participated in a protected activity, he has not shown that Schwab’s
legitimate, nondiscriminatory reasons for firing him—that he violated the Drug and
Alcohol Policy—are pretextual. (Id.) Each argument is addressed in turn.
1. Protected Activity
Retaliation under the ADA is defined as discriminating “against any individual
because such individual has opposed any act or practice made unlawful by [the ADA] or
because such individual made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a). Thus,
the Ninth Circuit has held that “[p]ursuing one’s rights under the ADA constitutes a
protected activity.” Pardi, 389 F.3d at 850 (citing McAlindin v. County of San Diego, 192
F.3d 1226, 1238 (9th Cir. 1999) for the proposition that “vigorously asserting one’s rights”
under the ADA constitutes a protected activity (cleaned up)). Requesting a reasonable
accommodation under the ADA is a protected activity. Marquez, 2018 WL 4899603, at
issue that Schwab’s legitimate, nondiscriminatory reasons for terminating him are
pretextual, as discussed in Section III(B)(2).
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*21 (citing Coons v. Sec. of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004)).
Mere disclosure of an alleged disability, however, is not. See id.; see also Manning
v. Tacoma Pub. Schools, 2007 WL 2495138, at *13 (W.D. Wash. 2007) (collecting cases);
Andrade v. Schnitzer Steel Indus, Inc., 2023 WL 4082284, at *14 (D. Or. 2023) (same).
Disclosing a disability to an employer does not trigger the ADA’s protection against
retaliation because it does not amount to opposing an “act or practice made unlawful by”
the ADA, nor does it constitute “ma[king] a charge, testif[ying], assist[ing], or
participat[ing] in any manner in an investigation, proceeding, or hearing under [the ADA].”
42 U.S.C. § 12203(a). “[T]he ADA requires employers to reasonably accommodate
limitations, not disabilities” and employers are not required “to assume that an employee
with a disability suffers from a limitation.” Marquez, 2018 WL 4899603, at *21 (quoting
Taylor v. Principal Fin. Grp. Inc., 93 F.3d 155, 164 (5th Cir. 1996)) (emphasis added); see
also 42 U.S.C. § 12112(b)(5)(A) (employers must make reasonable accommodations “to
the known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee” (emphasis added)). Thus, an employee must
do more than disclose a medical condition to pursue their rights under the ADA.
The line between disclosing a disability and requesting an accommodation under
the ADA is not always clear. While employees “need not mention the ADA or use the
phrase ‘reasonable accommodation,’” they must “inform the employer of a need for an
adjustment due to a medical condition using ‘plain English.’” Marquez, 2018 WL
4899603, at *19 (quoting Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000)
vacated sub nom on other grounds by US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)).10
Simply telling an employer about a medical diagnosis is not sufficient. See id. at 21.
Dugan admits that he “never requested a reasonable accommodation” before his trip
10 In some circumstances not relevant here, the employer has a duty to initiate the
reasonable accommodation process without a request from the employee. See Barnett, 228
F.3d at 1112 (“An employer should initiate the reasonable accommodation interactive
process without being asked if the employer: (1) knows that the employee has a disability,
(2) knows, or has reason to know, that the employee is experiencing workplace problems
because of the disability, and (3) knows, or has reason to know, that the disability prevents
the employee from requesting a reasonable accommodation.” (quotation marks omitted)).
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to San Diego. (Doc. 106 at 3, ¶ 13.) Nevertheless, he argues that he engaged in a protected
activity when he (1) disclosed his disability on the Self-Identification form; and (2) sent
Wagner a photograph of his prescription for clonazepam and expressed that he had “flight-
related anxiety.” (Doc. 105 at 6.) Schwab argues that neither action is a protected activity
under the ADA. (Doc. 99 at 16.)
a. The Self-Identification Form
Although it is undisputed that Dugan filled out a “Voluntary Self-Identification of
Disability” form when he was hired, (Doc. 106-3 at 4–5), filling out that form does not
amount to “[p]ursuing one’s rights under the ADA.” Pardi, 389 F.3d at 850 (citation
omitted). The only information the Form provided to Schwab was that Dugan believed he
had a disability. (Doc. 106-3 at 4–5.) By disclosing his disability, Dugan did not “object
to an unlawful practice under the ADA,” nor did he request an accommodation or
participate in proceedings under the ADA. See 42 U.S.C. § 12203(a). The Self-
Identification Form did not identify the nature of his disability, let alone indicate that he
experienced any limitations resulting from his disability that would require accommodation
in the workplace. (See Doc. 106-3 at 4–5.) This is insufficient to trigger an employer’s
obligations under the ADA and more importantly, does not indicate that Dugan was
pursuing his rights under the ADA when he filled out the form. It is thus not a protected
activity under the ADA and cannot form the basis of Dugan’s retaliation claim.
b. The March 14 Disclosure
Next, Dugan argues that he requested a reasonable accommodation when he
disclosed to Wagner that he had “flight-related anxiety” and a clonazepam prescription by
texting him a photograph of his clonazepam bottle and stating that he could get a doctor’s
note. (Doc. 105 at 6.) Schwab does not dispute that Dugan disclosed his anxiety and
prescription after the incidents on March 14, 2022, but argues that this fact, alone, is
insufficient to establish that he requested a reasonable accommodation and was therefore
pursuing his rights under the ADA. For the reasons stated above, I largely agree.
In his Controverting Statement of Facts, however, Dugan states that when he told
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Wagner about his anxiety, Wagner “suggested [Dugan] could drive a car and rent a vehicle
instead of flying in the future.” (Doc. 106-1 at 3, ¶ 19; id. at 6, ¶ 42.) Dugan cites his
declaration and text messages with Wagner to support this fact.11 (Id.) He also mentioned
it at his deposition. (Doc. 100-2 at 25 (testifying that, on the phone, Wagner told him “We
just stubbed our toe. We can get you a rental car in the future so you can drive if you’re
afraid of flying”).)
Schwab does not address this evidence in its reply, (see generally Doc. 108)12, and
taking it as true, a reasonable juror could infer from Wagner’s offer that Dugan sufficiently
articulated a request for an accommodation for future business trips during the March 14
exchange. Dugan has thus raised a triable issue as to whether he requested reasonable
accommodation on March 14, 2022. Accordingly, I will assume that Dugan participated
in a protected activity and has stated a prima facie case of retaliation. Schwab has offered
legitimate, nondiscriminatory reasons to explain why Dugan was terminated—violation of
the Drug and Alcohol Policy—and the parties do not dispute that it has met its burden in
doing so. Accordingly, I will turn to whether Dugan has shown a triable issue that
Schwab’s proffered reasons for firing him are pretextual.
2. Pretext
Even assuming Dugan can state a prima facie case for retaliation, he cannot show
that Schwab’s stated reasons for terminating him are pretextual. “A plaintiff can prove
pretext by direct or circumstantial evidence.” Duffy v. Or. Youth Auth., 2004 WL 1445671,
at *8 (D. Or. 2004). “Circumstantial evidence of pretext must be specific and substantial
in order to survive summary judgment.” Brown v. City of Tucson, 336 F.3d 1181, 1188
(9th Cir. 2003) (cleaned up). Such evidence must show either that (1) “a discriminatory
reason more likely motivated the employer” or (2) “that the employer’s proffered
explanation is unworthy of credence.” Id. (quoting Villiarimo v. Aloha Island Air, Inc.,
11 Wagner’s offer to arrange a rental car does not appear in Dugan and Wagner’s text
messages. (Doc. 106-3 at 7–37.)
12 Procedurally, Schwab had no opportunity to dispute this fact given that our local
rules prohibit the filing of a reply statement of facts. LRCiv. 56.1(b) (“No reply statement
of facts may be filed.”).
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281 F.3d 1054, 1063 (9th Cir. 2002)).
Schwab states that it fired Dugan for violating the Drug and Alcohol Policy on
March 14, 2022, and that it had a “reasonable, good faith belief” that Dugan was intoxicated
or impaired on that date. (Doc. 99 at 16–17.) In response, Dugan makes four arguments
to argue pretext: first, that throughout his termination process, Schwab has had “shifting
reasons” for firing him; second, that Schwab lacked objective evidence supporting its
termination decision; third, that it deviated from its internal policies when it terminated
him; and finally, that comparator evidence demonstrates pretext.
a. Shifting Reasons for Termination
Dugan’s proffered evidence of pretext is not substantial enough to raise a genuine
dispute as to whether Schwab was more likely motivated by discriminatory intent, or that
its reason for terminating him is unworthy of credence. To begin, Schwab’s reasons for
terminating Dugan did not “shift.” Dugan asserts that Wagner told him on March 16, 2022,
that he was being terminated “for taking prescription medication that could affect [his]
ability to perform [his] work duties.” (Doc. 105 at 8; Doc. 106-2 at ¶ 10.) This statement
is consistent with Dugan’s assertion that Schwab later said he was terminated for being
“under the influence / unfit to perform.”13 (Doc. 105 at 8.) It is also consistent with
Dugan’s “U5 Form,” which stated that he was terminated for “[b]ehavior inconsistent with
the firm’s Workplace Expectations Behavior Policy.” (Id. (citing Doc. 106-3 at 195).)
As Schwab notes, the “Workplace Expectations Behavior Policy” is a reference to
a subsection of the Drug and Alcohol Policy, titled “Workplace Behavior Expectations.”
(Doc. 108 at 7; Doc. 106-3 at 155.) That subsection states that employees who are unfit to
perform their duties because they are under the influence of either legal or illegal drugs,
including over-the-counter or prescription medications, “may be subject to disciplinary
action up to and including termination of employment.” (Doc. 106-3 at 155.) Far from
undermining Schwab’s stated reasons for firing Dugan, this evidence supports the
conclusion that Schwab fired Dugan for violating the Drug and Alcohol Policy.
13 Dugan cites to “Exhibit F (Schwab000534–536)” for this language, though it does
not appear in the messages represented there. (See Doc. 106-3 at 55–58.)
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b. Lack of Objective Evidence
Dugan also argues that Schwab lacked objective evidence of impairment,
specifically noting that Schwab did not conduct a medical evaluation or obtain signed
witness statements. (Doc. 105 at 8.) But Schwab was not required to conduct a medical
evaluation or acquire signed witness statements before terminating Dugan for violating the
Drug and Alcohol Policy. An employer may reasonably rely on reports of misconduct to
terminate an employee. See Villiarimo, 281 F.3d at 1063 (holding that attacks on the
credibility of three witnesses, who provided accounts of employee misconduct, were
insufficient to create a genuine issue of material fact because courts “only require that an
employer honestly believed its reason for its actions, even if its reason is foolish or trivial
or even baseless.” (quotation marks omitted)). Here, Schwab reasonably relied on the
eyewitness accounts of Dorrance and Antoniou, as well as Wagner’s observations of
Dugan’s behavior on the phone and by text message, to conclude that Dugan was
intoxicated or otherwise impaired, and thus, in violation of the Drug and Alcohol Policy.
Dugan cites no case or internal policy which would require more rigorous investigation,
not to mention drug or alcohol testing or sworn witness statements. Thus, this argument
also fails to establish that there is a genuine issue of material fact concerning Schwab’s
articulated reason for terminating him.
c. Deviation from Internal Policies
Next, Dugan asserts that Schwab deviated from its internal policies when it fired
him. To support this argument, he points to Schwab’s “Accommodations Policy,” which
states that Schwab will make “good faith efforts to provide a reasonable accommodation
for employees and qualified applicants with disabilities.” Dugan argues that Schwab
deviated from this Policy when it (1) fired him without conducting interviews or making
any findings; (2) did not cite “any medical assessment” despite Dugan’s offer to provide a
doctor’s note; and (3) “contemplated a written warning before pivoting to termination.”
(Doc. 105 at 9–10.) But the Accommodations Policy does not govern Schwab’s
termination process—it does not require, for instance, that Schwab conduct interviews, cite
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medical assessments, or issue written warnings before termination. Schwab thus did not
deviate from the Accommodations Policy when it terminated Dugan. And Dugan cites no
other internal policy which would require the actions he argues Schwab failed to take.
To the extent Dugan argues that Schwab failed to follow its Accommodations Policy
by not offering him a reasonable accommodation in lieu of termination, his argument also
fails. The Accommodations Policy does not state that employees may retroactively receive
accommodation excusing past misconduct; it only addresses when Schwab will engage in
the interactive process to reasonably accommodate disabilities prospectively. This is
consistent with an employer’s obligations under the ADA. See Alamillo v. BNSF Railway
Co., 869 F.3d 916, 922 (9th Cir. 2017) (“[A] reasonable accommodation is always
prospective[;] an employer is not required to excuse past misconduct even if it is the result
of the individual’s disability.” (quotation marks omitted)).
Specifically, the Accommodations Policy provides that “[a] reasonable
accommodation will be provided, upon request” and that to “request medical
accommodation” an employee must “talk to his or her manager and submit an
accommodations request through MyHR.” (Doc. 106-3 at 51–52.) Only once an
accommodation request is received, will Schwab “engage in an interactive
assessment . . . to determine if the accommodation can be made as requested.” (Id. at 52.)
Dugan presents no evidence that he talked with his supervisor or submitted a request for
an accommodation through MyHR before his flight to San Diego. Indeed, his own
testimony establishes that he chose not to seek an accommodation because he did not think
he needed one. (See Doc. 100-2 at 5–6 (Dugan Deposition at 27:18–28:14).).
Accordingly, Schwab’s obligations under its Accommodations Policy were never
triggered, and Dugan has not raised a triable dispute as to whether Schwab deviated from
its Accommodation Policy when it terminated him.
d. Comparator Evidence
Finally, Dugan presents the employment records of two other employees who were
fired under the Drug and Alcohol Policy. He argues that Employees H and G received
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more robust investigations and better severance packages. “A plaintiff may raise a triable
issue of pretext through comparative evidence that the employer treated . . . similarly
situated employees more favorably than the plaintiff.” Earl v. Nielsen Media Research,
Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (citations omitted). “Individuals are similarly
situated when they have similar jobs and display similar conduct.” Chisolm v. 7-Eleven,
Inc., 383 F. Supp. 3d 1032, 1063 (S.D. Cal. 2019) (quoting Vasquez v. Cnty. of L.A., 349
F.3d 634, 641 (9th Cir. 2003)).
Dugan presents no evidence that Employees G and H were “similarly situated” to
him. (See Doc. 106-1 at 4.) The evidence does not indicate that they held a similar role at
Schwab or had the same supervisor. (See, e.g., Doc. 96 at 30 (showing that Employee H
was a branch manager); Doc. 96 at 3–26 (no information regarding Employee G’s role or
supervisor); Doc. 96 at 9 (indicating that Employee G had been with Schwab for over 22
years).) Further, the record evidence also does not establish that Schwab treated
Employees H and G more favorably than Dugan. Both employees were fired when Schwab
had sufficient reason to believe that they violated the Drug and Alcohol Policy. That
Schwab tailored its investigation of Employees G and H based upon the severity of their
conduct and the reliability of initial reports, does not indicate that their investigation of
Dugan was “less favorable.”
In short, the record supports the conclusion that Schwab had a reasonable, good
faith belief that Dugan was intoxicated or impaired on March 14, 2022 in violation of its
Drug and Alcohol Policy. Dugan has failed to present “specific and substantial evidence”
to create a genuine issue of material fact as to pretext. Accordingly, summary judgment
will be granted to Schwab on Dugan’s retaliation claims.
C. Retaliation Claims under Title VII
“Retaliation claims under Title VII must be based on opposition to practices made
unlawful by Title VII.” Warren v. Regus Mgmt. Grp., LLC, 2025 WL 871670, at *6 (W.D.
Wash. 2025) (quotation marks omitted); see also Brooks v. City of San Mateo, 229 F.3d
917, 923 (9th Cir. 2000) (“Title VII prohibits employment discrimination based on any of
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its enumerated grounds: race, color, religion, sex, or national origin.”). Requesting a
disability-related accommodation “does not qualify as protected activity under Title VII.”
Warren, 2025 WL 871670, at *6. Because Dugan’s claims are premised entirely on alleged
conduct made unlawful by the ADA, not Title VII, summary judgment will be granted to
Schwab on Dugan’s Title VII retaliation claim.
D. New Legal Theories
A plaintiff cannot raise a new legal theory for the first time in opposition to summary
judgment. Patel v. City of Long Beach, 564 Fed. App’x 881, 882 (9th Cir. 2014). Dugan
argues for the first time at summary judgment that he suffered “post-employment
retaliation.” (Doc. 105 at 14.) This new theory of harm was not articulated in his
Complaint and will not be addressed. See Patel, 564 Fed. App’x at 882; see also Coleman
v. Quaker Oats Co., 232 F.3d 1271, 1292–93 (9th Cir. 2000) (plaintiff could not proceed
with new theory not pled in complaint).
IV. CONCLUSION
Accordingly,
IT IS ORDERED granting Schwab’s Motion for Summary Judgment, (Doc. 99).
IT IS FURTHER ORDERED denying Dugan’s Motion for Partial Summary
Judgment, (Doc. 92).
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment
accordingly and close this case.
///
///
///
///
///
///
///
///
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IT IS FURTHER ORDERED that this Order shall be filed under seal temporarily.
Because I have cited to sealed documents in this Order, the Parties have 30 days to submit
a Motion with the proposed redactions for a public filing of this Order and must
demonstrate compelling reasons for the proposed redactions. See Kamakana v. City &
Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (presumption is to favor disclosure
unless a party provides sufficiently compelling reasons that override the public policies
favoring disclosure). If the Parties do not submit proposed redactions within 30 days of
the date of this Order, the Clerk of the Court must unseal this Order without further notice.
Dated this 26th day of March, 2026.
cc: Robert Dugan; Jessica Phipps; Joseph Clees
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