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MacLean v. State8/2/1999
ean contends the trial court erred in granting summary judgment because genuine issues of material fact exist with respect to both her disability/failure to accommodate claim and her retaliation claim. Conversely, as it did in the trial court, the state asserts that MacLean is not "disabled" within the meaning of the ADA, and that she did not present a triable factual issue on her retaliation claim. On appeal from a summary judgment, we determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. Bothell. We will affirm if the trial court's ruling is correct on any ground and if the facts produced in support of MacLean's claims "have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the Conclusion advanced by ." Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990); Glaze v. Marcus, 151 Ariz. 538, 729 P.2d 342 (App. 1986).
A. MacLean Affidavit
Preliminarily, the state urges us to "disregard" MacLean's affidavit because it is "self-serving" and contradicts her previous deposition, in which she testified that she did not remember "having any health problems or symptoms at all" when she began working for the Department in December 1994, and that her symptoms were "no big deal" at that point in time.() Thereafter, according to her deposition, she "start experiencing symptoms" but, as of December 1995, her symptoms were only "related to being in the building" and, after leaving the building on a Friday afternoon, she would get better by Saturday morning.()
" arties cannot thwart the purposes of Rule 56 by creating issues of fact through affidavits that contradict their own depositions." Wright v. Hills, 161 Ariz. 583, 588, 780 P.2d 416, 421 (App. 1989). Accordingly, " party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Id. at 587, 780 P.2d at 420. Affidavits may supplement or clarify prior inconsistent deposition testimony "if the affiant was confused at deposition and the affidavit explains those aspects of the deposition testimony or if the affiant lacked access to material facts and the affidavit sets forth the newly discovered evidence." Id. Although those exceptions do not apply here, MacLean's affidavit does not clearly conflict with her deposition testimony. As far as we can tell from the record, MacLean was not specifically asked in her deposition how, if at all, her asthma and related respiratory problems affected her life. Had that inquiry been made, MacLean presumably would have given the detailed explanation of her impairment and its effect that she later furnished in her affidavit.
That MacLean was symptom-free when she first began working at the Department does not necessarily rule out her having had an impairment, albeit controlled, that "substantially limit one or more of major life activities." 42 U.S.C. ยง 12102(2)(A). MacLean's awareness of her condition and purposeful avoidance of particular activities and locations that exacerbated it, rather than the absence of any "disability" for ADA purposes, could have explained the lack of symptoms as of December 1994. In short, this is not a case in which the "affidavit contradicts [the affiant's] deposition testimony which clearly states" facts that are diametrically different from those set forth in the affidavit. Wright, 161 Ariz. at 588, 780 P.2d at 421. And, unlike the plaintiff in Patterson v. Chicago Association for Retarded Citizens, 150 F.3d 719 (7th Cir. 1998), on which the state relies, MacLean did not exhibit a "near-total inability to recall even the most basic facts or to prov
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