United States District Court, D. Arizona
Amie M. Gressett,  Plaintiff,
Central Arizona Water Conservation District as the operating agency for the Central Arizona Project, Defendant.
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court are Defendant's Motion for Summary Judgment (Doc. 96), Plaintiff Amie Gressett's Motion for Partial Summary Judgment (Doc. 94), and Plaintiff's Motion to Strike 111 Extraneous and Unnecessary Statements of Fact and Request for Expedited Consideration (Doc. 98). The Court now rules on the motions.
I. Motion to Strike
Plaintiff moves to strike 111 paragraphs contained within Defendant's Statement of Facts in Support of Defendant's Motion for Summary Judgment (Doc. 97) because that they were not cited in Defendant's motion and thus are unnecessary for deciding the motion. (Doc. 98 at 1). Plaintiff claims this inclusion of unnecessary statements of fact violates Local Rule of Civil Procedure ("Local Rule") 56.1(a). ( Id. ) Defendant admits that its statement of facts in support of its motion for summary judgment included "paragraphs that were not specifically cited in its [m]otion" but argues that because a moving party may not supplement its statement of facts, it included paragraphs in its statement of facts that it "believes might reasonably be necessary to reply to Plaintiff's anticipated arguments." (Doc. 101 at 2).
A. Legal Standard
Local Rule 7.2 provides that "a motion to strike may be filed only if it is authorized by statute or rule... or if it seeks to strike any part of a filing or submission on the ground that it is prohibited (or not authorized) by a statute, rule, or court order." LRCiv 7.2(m)(1). The applicable rule for statements of facts in support of a motion for summary judgment is Local Rule 56.1, which provides:
Any party filing a motion for summary judgment must file a statement, separate from the motion and memorandum of law, setting forth each material fact on which the party relies in support of the motion. The separate statement should include only those facts that the Court needs to decide the motion. Other undisputed facts (such as those providing background about the action or the parties) may be included in the memorandum of law, but should not be included in the separate statement of facts.
Plaintiff's impetus for filing a motion to strike was to avoid having to address the allegedly extraneous facts in her controverting statement of facts. See (Doc. 98 at 3). Accordingly, Plaintiff asked for expedited consideration of her motion before March 3, 2014, the date on which her responsive memorandum was due. ( Id. ) Plaintiff has since filed her responsive memorandum and controverting statement of facts in which she objects to each of the 111 paragraphs on the basis that they were improperly included in the statement of facts.
Although at first glance Plaintiff's motion appears to be moot, Federal Rule of Civil Procedure ("Rule") 56(c)(3) permits the Court in ruling on a motion for summary judgment to consider materials in the record but not cited in the motion. Consequently, striking facts offered in support of Defendant's motion for summary judgment could affect the Court's ruling on the motion, and the Court will consider Plaintiff's motion.
The essence of Plaintiff's argument is that because Local Rule 56.1 limits the inclusion of facts in the statement of facts to "only those facts that the Court needs to decide the motion" and Defendant does not cite the facts at issue in its motion, those facts are not needed to decide the motion and their inclusion thus violates Local Rule 56.1. Plaintiff urges that the appropriate venue for Defendant to use these extraneous facts was to "discuss them in the reply memorandum and attach supporting evidence to that brief." ( Id. ) Plaintiff cites Kinnally v. Rogers Corp., 2008 WL 5272870 (D. Ariz. Dec. 12, 2008) and Marceau v. International Brotherhood of Electrical Workers, 618 F.Supp.2d 1127 (D. Ariz. 2009) for this proposition. These cases do not support the urged proposition.
In Kinnally, a party filed a reply in support of its motion for summary judgment in which it attached additional exhibits and it also separately filed objections to the non-movant's controverting statement of facts. 2008 WL 5272870, at *1. The Court noted that "[t]he Local Rules do not contemplate attaching additional exhibits to replies in support of summary judgments or filing a separate response to the non-moving party's statement of facts, " and struck the reply and objections. Id. at *2. Similarly, in Marceau, the Court held that Local Rule 56.1(d) "does not permit the moving party to file a separate responsive memorandum to any additional facts in the non-moving party's separate statement of facts." 618 F.Supp.2d at 1141. Rather, the Court noted that Local Rule 7.2(m)(2) requires that "[a]ny response to the objection must be included in the responding party's reply memorandum for the underlying motion and may not be presented in a separate responsive memorandum" and held that the movant's separately-filed objections to the non-movant's separate statement of facts was improper. Id. (quoting LRCiv 7.2(m)(2)).
Thus, the movant may neither attach new evidence to its reply memorandum nor file separate objections to the non-movant's controverting and additional statements of facts. Instead, the movant may use its reply memorandum to respond to the non-movant's objections to the movant's supporting statement of facts. See LRCiv 7.2(m)(2). Plaintiff's contention that Defendant can introduce its extraneous facts for the first time in its reply if needed is simply incorrect.
The Court agrees with Defendant that its decision in Dowling v. Arpaio, 2012 WL 300547 (D. Ariz. Feb. 1, 2012) is apposite here. In Dowling, a portion of the movant's statement of facts were not cited in its motion for summary judgment but were cited (for the first time) in the movant's reply. 2012 WL 300547, at *1. The Court noted that this was a violation of Local Rule 56 but found that the movant's noncompliance as well as related noncompliance by the non-movant were excusable and the "goals of the litigation" would not be furthered by strictly enforcing the Local Rules. Id. The situation in the present case is similar. Plaintiff has availed herself of her opportunity to make objections to the extraneous facts, and therefore denying the motion to strike does not prejudice Plaintiff. The Court will deny the motion.
II. Motions for Summary Judgment
Defendant moves for summary judgment on Plaintiff's claims for interference and retaliation under the Family and Medical Leave Act ("FMLA"). (Doc. 96 at 1). Plaintiff moves for partial summary judgment on the issue of liability. (Doc. 94 at 5).
Defendant hired Plaintiff on October 16, 2006 as a "Safety VPP Specialist." (Doc. 105 ¶ 1). Her duties included coordinating medical safety programs, scheduling and monitoring the medical testing of employees as required for "safety sensitive positions, " coordinating medical exams for employees, and working on safety inspection reports. ( Id. ¶¶ 3-4).
Upon starting employment, Plaintiff received a copy of Defendant's employment handbook and acknowledged that she received and reviewed it. ( Id. ¶ 5). Defendant's Attendance Policy requires an employee who is unable to report to work because of illness or injury to notify her manager "each day they are absent." (Doc. 97-1 at 254). "This notification must be made in accordance with the call-in procedure for the employee's work team or department, " and the employee's immediate supervisor is responsible for establishing the notification requirements. ( Id. ) Employees are required to give notice "whenever possible before the beginning of the normal workday." ( Id. ) An employee who is out is expected to "maintain daily contact with his/her supervisor and keep him/her informed as to the anticipated return to work unless instructed otherwise." ( Id. ) The Attendance Policy also states that an employee's "performance evaluation will be impacted if their absences become so frequent that the value of the employee's services are diminished." ( Id. at 255). Excessive absences result in a "progressive counseling process" and employees are subject to "corrective action up to and including termination." ( Id. ) The Attendance Policy specifies that "[p]rogressive discipline may be followed as dictated in the Corrective Action policy." ( Id. )
Plaintiff was aware of Defendant's Corrective Action Policy, (Doc. 105 ¶ 21), which provides for progressive discipline based on the particular circumstances of each employee's infraction. (Doc. 97-1 at 241, 243). Consistent with the Attendance Policy, the Corrective Action Policy specifies progressive corrective actions including a verbal warning, written warning, suspension, and termination. ( Id. at 243-44).
Defendant's position required her to work from 6:00 a.m. to 4:30 p.m. Monday through Thursday. (Doc. 105 ¶ 49). Plaintiff's immediate supervisor was Mike Cook. ( Id. ¶ 2). Cook required his work team, including Plaintiff, to ...