Alcozar-Murphy v. Asarco Ariz. Inc.

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

CV-14-2390-TUC-DCB

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

February 23, 2017

ORDER

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 Plaintiffdiscovered 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 agenuine 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 evidenceis 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 andreceived 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 andtheir 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...