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Alcozar-Murphy v. ASARCO Arizona Inc.

United States District Court, D. Arizona

February 23, 2017

Bernadette Alcozar-Murphy, a single woman, Plaintiff,
v.
ASARCO Arizona Inc., et al., Defendants.

          ORDER

          Honorable David C. Bury United States District Judge

         Pending before the Court are Defendant United Steel Workers of America Kearney Local #5252's (USWA #5252) Motion for Summary Judgment (Doc. 62, 63) and Defendant ASARCO LLC (ASARCO) Motion for Summary Judgment (Doc. 64, 65), both filed in July 2016. Plaintiff, Bernadette Alcozar-Murphy (Alcozar-Murphy), responded (Docs. 73, 74, 75) in August 2016. Defendants replied (Docs. 78, 79) in September 2016. The Court heard oral argument on December 12, 2016 and granted the USWA motion from the bench while taking the ASARCO motion under advisement. The Court now rules and elaborates on its ruling from the bench.

         PROCEDURAL BACKGROUND

         This action was originally filed in an Arizona state court and removed to federal court in September 2014. (Doc. 1.) The First Amended Complaint is contained in the state court records lodged with this federal court upon removal. (Doc. 1-2.) In March 2015, the Court denied a Motion to Dismiss and Motion for Sanctions. (Doc. 29.) On July 31, 2015, USWA #5252 filed a Crossclaim against the ASARCO Defendants (Doc. 3) and the ASARCO Defendants filed a Crossclaim against USWA #5252. (Doc. 41.) A Scheduling Order was entered in August 2015. Defendants ASARCO Arizona Inc. and ASARCO Grupo Mexico were dismissed as parties by the state court. The remaining ASARCO defendant is ASARCO LLC. (Doc. 21.)

         HISTORICAL BACKGROUND

         Plaintiff started work with ASARCO in 2005 as a heavy equipment operator. At the time she was terminated from employment, she was a commercial haul truck driver. In December of 2012, Alcozar-Murphy suffered a rare physical condition that caused her to become temporarily blind. She applied for and was granted leave time to obtain medical treatment under the Family Medical Leave Act (FMLA). After missing extended time from work under the FMLA, Alcozar-Murphy was released to return to her duties on February 21, 2013. Plaintiff was delayed in her return by Human Resources (HR) Rosa Aguirre (Aguirre), who was requesting additional, detailed return-to-work documents. This delay led to an HR meeting, where her Union Reps Mark Gonzales and Phil Gomez and HR agreed that there was not a problem. Not being happy with that result, Alcozar-Murphy met with Eric Duarte, Union President. The purpose of the meeting was to allow Alcozar-Murphy to file a grievance against Aguirre for blocking her return to work. The meeting took place for two hours. After the meeting, Alcozar-Murphy reported for work. Later that day, the Plaintiff discovered that the two hours of time she spent in the meeting were not listed on her time sheet. Alcozar-Murphy accessed her electronic time record, without permission and against proper protocol, to add the non-working hours in which she met with the Union Representatives. When ASARCO discovered Alcozar-Murphy's unauthorized alteration of her time record, it terminated Alcozar-Murphy's employment for dishonesty in violation of company policy. Alcozar-Murphy, a bargaining unit member of the Union, initially elected to grieve the termination of her employment through the Union pursuant to the terms of the Collective Bargaining Agreement between the Union and ASARCO (the CBA). After a delay of over eighteen months, Plaintiff filed her action in state court, which was then removed to federal court.

         Plaintiff's Amended Complaint (Doc. 1-2) charged the following: COUNT ONE (ASARCO) - Retaliation for Making a Wage Claim; COUNT TWO (ASARCO) - Family Medical Leave Act Retaliation; and, COUNT THREE (USWA #5252) - Failure to Fairly and Reasonably Represent. Plaintiff requests compensation for back wages, front pay, lost benefits, attorneys fees, costs, emotional distress, pre- and post-judgment interest, and any and all other remedies deemed proper by this Court.

         STANDARD OF REVIEW

         Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25.

         If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 250. All reasonable inferences must be drawn in the light most favorable to the nonmoving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the task of the Court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court “rel[ies] on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Id.; see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). Thus, “[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to make this showing, the moving party is entitled to a judgment. See Celotex, 477 U.S. at 323.

         DISCUSSION

         A. Claims Against ASARCO

         1. FMLA

         On December 14, 2012, Alcozar-Murphy requested leave under the Family Medical Leave Act (FMLA) related to an eye condition, and ASARCO granted the requested leave. (Doc. 65; DSOF ¶ 5.) ASARCO complied with all provisions of the FMLA when Alcozar-Murphy requested leave for her eye condition, and Alcozar-Murphy received all payments from ASARCO related to her FMLA leave while she was on leave. DSOF ¶¶ 6-7. ASARCO also complied with all provisions of the FMLA when Alcozar-Murphy sought a return to work after she recovered from her eye condition. DSOF ¶ 8. Alcozar-Murphy's agreed upon return to work date from FMLA leave was February 21, 2013. DSOF ¶ 9. On that date, Alcozar-Murphy submitted return to work paperwork to ASARCO human resources employee, Rosa Aguirre. Due to the nature of Alcozar-Murphy's eye condition (temporary blindness) and the nature of her position (commercial haul truck driver), Aguirre requested return-to-work documents with no restrictions listed. Alcozar-Murphy arranged for her physician to provide the correct paperwork, and Alcozar-Murphy returned to work on February 21, 2013 with no delay or loss of pay. DSOF ¶ 10. Further, Alcozar-Murphy returned to the same position and received the same rate of pay when she returned to work on February 21, 2013 from FMLA leave related to her eye condition. Despite returning to work to the same position, same rate of pay, and on the precise day she was scheduled to return to work (i.e. did not lose any pay due to any slight delay related to arranging a return to work document with no restrictions), Alcozar-Murphy believed Aguirre intentionally delayed her return to work from FMLA leave, so Alcozar-Murphy requested a meeting with her Union representatives to discuss filing a grievance or civil rights claim against ASARCO.[1]

         “The FMLA creates two interrelated, substantive employee rights: first, the employee has a right to use a certain amount of leave for protected reasons, and second, the employee has a right to return to his or her job or an equivalent job after using protected leave.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1222 (9th Cir. 2001). It is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the act. 29 U.S.C. § 2615(a)(1). “[T]his prohibition encompasses an employer's consideration of an employee's use of FMLA-covered leave in making adverse employment decisions[.]” Bachelder, 259 F.3d at 1222.

         Congress recognized that, in an age when all the adults in many families are in the work force, employers' leave policies often do not permit employees reasonably to balance their family obligations and their work life. The result, Congress determined, is “a heavy burden on families, employees, employers and the broader society.” S.Rep. No. 103-3 at 4, 103d Cong., 2d Sess. (1993). As for employees' own serious health conditions, Congress found that employees' lack of job security during serious illnesses that required them to miss work is particularly devastating to single-parent families and to families which need two incomes to make ends meet. Id. at 11-12. As Congress concluded, “it is unfair for an employee to be terminated when he or she is struck with a serious illness and is not capable of working.” Id. at 11. In response to these problems, the Act entitles covered employees2 to up to twelve weeks of leave each year for their own serious illnesses or to care for family members, and guarantees them reinstatement after exercising their leave rights. 29 U.S.C. §§ 2612(a)(1), 2614(a)(1).

         ASARCO granted Plaintiff's FMLA leave request. Plaintiff also officially returned to work with no changes in her status at all. Plaintiff submits no evidence that ASARCO used the taking of FMLA leave as a negative factor in her termination, which occurred after she had already taken the leave and after she had returned to work with no change in her status. 29 C.F.R. § 825.220(c).

         Plaintiff's claim in COUNT TWO of the Amended Complaint is based on allegations that ASARCO terminated her, in part, for taking FMLA leave. This allegation has no factual support. To prevail on such a claim, Plaintiff must show “by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her.” Bachelder, 259 F.3d at 1225. The decision to terminate Plaintiff was made after she had returned to work with all previous benefits and job position in place; after she altered the Long Sheet[2] and before she filed a grievance against HR. The grievance was discussed but never initiated. Plaintiff does not prove this allegation by a preponderance of the evidence that her termination was in any way tied to her taking FMLA leave. ASARCO's motion for summary judgment will be granted on COUNT TWO.

         2. Retaliatory discharge

         Alcozar-Murphy returned to the same position and received the same rate of pay when she returned to work on February 21, 2013 from FMLA leave related to her eye condition. DSOF ¶ 11. Because Alcozar-Murphy believed Aguirre intentionally delayed her return to work from FMLA leave, Alcozar-Murphy requested the meeting with her Union representatives to discuss filing a grievance or civil rights claim against ASARCO. DSOF ¶ 12.

         ASARCO did not prevent or attempt to discourage Alcozar-Murphy from filing a grievance or civil rights complaint regarding Alcozar-Murphy's return from FMLA leave. DSOF ¶¶ 14-15. Alcozar-Murphy received compensation for that meeting because an ASARCO supervisor sanctioned, scheduled, and attended the meeting. DSOF ¶ 16. After meeting with Roy Smith, Alcozar-Murphy's Union representatives advised Alcozar-Murphy she had no basis for filing a grievance or civil rights complaint against ASARCO regarding her return from FMLA leave. DSOF ¶ 17. Alcozar-Murphy was not happy with that assessment and requested a follow-up meeting with the Union president at the time, Eric Duarte.

         On February 26, 2013, Alcozar-Murphy was scheduled to work B shift from 3:00 pm. to 11:00 p.m. DSOF ¶ 18. Alcozar-Murphy alleges she arrived to work two hours early, at approximately 1:00 p.m., because ASARCO supervisor Roy Smith arranged a meeting with Alcozar-Murphy, Mr. Smith, and Mr. Duarte, her Union representative. DSOF ¶ 19. Both Roy Smith and Eric Duarte agree that Roy Smith did not set up-or plan to attend-the meeting between Alcozar-Murphy and Eric Duarte on February 26, 2013. Rather, Mr. Duarte spoke with Alcozar-Murphy the day before and told her that if she wanted to, she could meet with him before her shift started. DSOF ¶ 20. In fact, Mr. Duarte did not expect any ASARCO supervisor to attend the meeting; rather, he expected to meet with her one-on-one. DSOF ¶ 21.

         There is no evidence in the record to support Plaintiff's version of the preliminary facts. No person at ASARCO or the Union told Alcozar-Murphy she would be paid for the time she met solely with Mr. Duarte. DSOF ¶ 22. Alcozar-Murphy alleges she should be paid for attending the meeting on February 26, 2013 because Roy Smith set up the meeting and would be present for the meeting. However, Roy Smith did not set up or attend the meeting. Mr. Smith did not even know about the meeting before it happened. DSOF ¶ 23. No ASARCO representative required or requested Alcozar-Murphy meet with Eric Duarte on February 26, 2013. DSOF ¶ 24.

         Alcozar-Murphy has not produced objective evidence, such as any e-mail or written correspondence, demonstrating that her attendance at the meeting with Eric Duarte on February 26, 2013 was mandatory or that ASARCO, through Roy Smith, sanctioned, scheduled, or planned to attend the meeting. DSOF ¶ 25-26. Alcozar-Murphy admits if you meet solely with Union representatives outside of your scheduled shift, you are not paid for that meeting time. DSOF ¶ 27. No provision of the Basic Labor Agreement (BLA) between the Union and ASARCO states that bargaining unit members receive payment for time they meet solely with Union representatives. DSOF ¶ 28. No written ASARCO policy states that Alcozar-Murphy was entitled to payment of wages for time she met solely with Union representatives to discuss filing a grievance or civil rights complaint against ASARCO. DSOF ¶29.

         On February 26, 2013, Alcozar-Murphy was not scheduled as a Day Pay supervisor.[3] DSOF ¶ 30. When not scheduled or working as a Day Pay supervisor, Alcozar-Murphy had no reason to access or modify the Long Sheet, and there is no circumstance where a non-supervisor is unilaterally allowed to add overtime without supervisor approval. DSOF ¶ 31. Despite not being scheduled as a Day Pay supervisor, Alcozar-Murphy accessed the Long Sheet and added two hours of overtime next to her name on the Long Sheet. DSOF ¶ 32. After altering the Long Sheet, Alcozar-Murphy removed and discarded the original signed and approved Long Sheet for February 26, 2013 and replaced it with the altered Long Sheet she modified. DSOF ¶ 33. No ASARCO supervisor authorized Alcozar-Murphy to access the Long Sheet on February 26, 2013 and add two hours of overtime to the column next to her name, and no ASARCO supervisor signed or approved the modified Long Sheet. DSOF ¶¶ 34-35. If Alcozar-Murphy actually received 5-5 supervisor[4] approval-as she alleges-the 5-5 supervisor, not Alcozar-Murphy, should have accessed the Long Sheet and/or signed off on a modified Long Sheet. ASARCO supervisors Craig Moore and/or Oliver Johnson, both 5-5 supervisors who Alcozar-Murphy admits were in the same building as her when she accessed the Long Sheet (indeed, Alcozar-Murphy alleges they were as close as “two feet away” from her), could have accessed and revised the Long Sheet on February 26, 2013 to add two hours ...


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