Negrete v. Maloof Distrib. L.L.C.

762 F.Supp.2d 1254

Jose NEGRETE, Plaintiff,

v.MALOOF DISTRIBUTING L.L.C., A New Mexico Limited Liability Company, Defendant.

No. CIV 06–0338 JB/LFG.

United States District Court, D. New Mexico.

Nov. 28, 2007.

Eric D. Dixon, Attorney and Counselor at Law, P.A., Portales, NM, for Plaintiff.Frederick M. Mower, Sanchez, Mowrer & Desiderio, P.C., Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Maloof Distributing, L.L.C.'s Motion for Summary Judgment, filed August 16, 2007 (Doc. 44). The Court held a hearing on the motion on October 9, 2007. The Court will grant in part and deny in part Maloof Distributing's motion. Maloof Distributing is not entitled to summary judgment on Negrete's discrimination claims, because there is a genuine issue of material fact regarding his discharge. Negrete makes a prima facie showing of discriminatory discharge and disparate treatment. Maloof Distributing has presented genuine non-discriminatory reason for its discharge of Negrete, but Negrete was terminated under circumstances giving rise to an inference of discrimination because there is a genuine issue of fact regarding Maloof Distributing's company policy regarding “hot shot” delivery. Maloof Distributing is not entitled to summary judgment on Negrete's implied contract claim because there is an issue of material fact whether the employment relationship between Negrete and Maloof Distributing was altered by representations made by Maloof Distributing supervisors. Maloof Distributing is entitled to summary judgment on Negrete's prima-facie tort claim, because either Velarde's actions were not legal, or Negrete is unable to demonstrate that Maloof Distributing and/or Velarde intended to injure him.

FACTUAL BACKGROUND

While the parties agree on the basic outline of what occurred, many details remain in dispute. For example, the record is not clear on what Negrete's job at Maloof Distributing was and what other employees' jobs and supervisors were. Ultimately, the many issues in dispute combined leave the reason why Maloof Distributing terminated Negrete for the determination by the jury.

A. NEGRETE'S GENERAL WORK HISTORY.

Maloof Distributing employed Negrete from July 15, 2002 through December 17, 2004. See Defendant Maloof Distributing L.L.C.'s Motion for Summary Judgment (“Maloof Distributing's summary judgment motion”) ¶ 1, at 3, filed Aug. 16, 2007 (Doc. 44). Bill James, Maloof Distributing's area manager at the time of his retirement, hired Negrete. See Plaintiff Jose Negrete's Response to “Defendant Maloof Distributing, L.L.C.'s Motion for Summary Judgment (“Negrete's Response”), filed Sept. 17, 2007 (Doc. 52), Exhibit 6, Affidavit of Jose Negrete ¶ 4, at 1 (taken Aug. 26, 2007) (“Negrete Aff.”); Negrete's Response, Exhibit 13, Deposition of Billy John James (taken Aug. 31, 2007) (“James Depo.”) at 7:6–10. Negrete contends that he was a driver for Maloof Distributing. See Negrete Aff. ¶ 8, at 2. Robert Bolin, supervisor of Maloof Distributing's Clovis office, testified that Negrete was a driver/helper merchandiser. See Negrete's Response, Exhibit 2, Deposition of Robert Bolin at 64:10–11(taken June 5, 2007) (“Bolin Depo.”). Robert Leyva, Maloof Distributing's branch manager, testified that Negrete was a merchandiser driver assistant. See Maloof Distributing's summary judgment motion, Exhibit B, Deposition of Robert Leyva at 27:5–19 (taken June 5, 2007) (“Leyva Depo.”).

Leyva testified that the merchandiser driver assistant job involved assisting the driver and, on occasion, delivering beer. See Leyva Depo. at 23:16–17. Leyva testified that Negrete's job duties were different from the job duties of Joe Samuels, another Maloof Distributing employee. See Leyva Depo. at 23:18–20. Joe Samuels worked for Maloof Distributing for approximately two years. See Negrete's Response, Exhibit 9, Affidavit of Joe Samuels ¶ 2, at 1(taken Aug. 31, 2007) (“Samuels Aff.”).

Negrete represents that James placed him on three months probation and told him that, after that period, he would become a permanent non-probationary employee. See Negrete Aff. ¶ 4, at 2. Negrete represents that James told him most Maloof Distributing employees were long term and had worked there for years. See Negrete Aff. ¶ 4, at 2. Negrete represents that James told him that Maloof Distributing fired non-probationary employees only for good cause or good reason. See Negrete Aff. ¶ 4, at 2; James Depo. at 14:11–15 (stating that it is general knowledge that non-probationary employees were fired only for good reason or good cause, but that he did not recall telling Negrete that information).

Negrete signed and dated an acknowledgment on July 15, 2002, stating that he had received the Maloof Distributing Employee Handbook and agreed to read the handbook fully and completely. See Maloof Distributing's summary judgment motion, Exhibit I, Acknowledgment (Doc. 44–11). That Acknowledgment provides:

I have this date received a copy of The Maloof Companies Employee Handbook. I agree to fully and completely read the Employee Handbook, to request explanations of any area(s) which I do not understand so that I can reach a full and complete understanding of my conditions of employment, and to abide by the rules, regulations and policies contained therein.

* * * *

I further understand that as a matter of Company policy, all employment is offered to me at an “employment at will” basis, meaning that I may choose to terminate my employment at any time and for any reason without notice; and the Company is free to do the same as well.

Id. Negrete also signed a document on July 15, 2002 entitled “Acknowledgment, Consent to Drug and Alcohol Screening Tests.” Maloof Distributing's summary judgment motion, Exhibit J, Acknowledgment, Consent to Drug and Alcohol Screening Tests (Doc. 44–12). That document provides that, “as a condition of continued employment and in consideration of my continued employment, I hereby consent to cooperate in The Maloof Companies' Drug and Alcohol Screening Program by providing urine and/or blood samples when requested to do so at anytime while on the job.” Id. That document also provided that Negrete would consent to “to release all medical test results to the management of The Maloof Companies to the extent necessary to establish a claim or defense in any controversy between me and the Maloof Companies.” Id. The Maloof Distributing Companies Employee Handbook further provided: “[I]f you refuse to provide a urine and/or blood sample within three (3) hours of a request, it will be considered as a voluntary resignation of your employment.” Maloof Distributing's summary judgment motion, Exhibit E, Maloof Companies Employee Handbook (“Handbook”) at 22 (Doc. 44–7).

Negrete contends that Maloof Distributing's company policy requiring drug and alcohol screening did not include the taking of hair samples. See Handbook at 22. Negrete contends that he was forced to give a hair sample on June 26, 2003. See Negrete Aff. ¶ 17, at 4, Exhibit 1, Drug Testing Custody and Control Form (dated June 26, 2003) (indicating that head hair was taken from Negrete); James Depo. at 40:5–8. Leyva testified that he requested Negrete give a hair sample, because Negrete failed to get a urine test. See Leyva Depo. at 17:17–25. Leyva testified he grew suspicious, so when Negrete came to Roswell to the drug screening facility, Leyva instructed the drug screening facility to make Negrete provide a hair sample. See id. at 18:1–6. The test came back negative. See id. at 18:24–19:1.

On July 13, 2002, Negrete signed a document dated June 1, 1993 entitled “Loss Control Policy Statement.” Maloof Distributing's summary judgment motion, Exhibit K, “Loss Control Policy Statement” (Doc. 44–13). That Statement indicates that “[t]he objective of our loss control program has been to see that your work is performed without accidents or losses of any nature.” Id. It also asks Negrete to demonstrate his commitment to Maloof Distributing's loss control program by signing the document. See id.

Bolin took over as supervisor of the Maloof Distributing Clovis office in 2003. See Maloof Distributing's summary judgment motion, Exhibit H, Deposition of Sergio Lopez (taken June 7, 2007) (“Lopez Depo.”) at 67:13–16. Bolin reports to Mauro Martinez and Leyva. See Maloof Distributing's summary judgment motion, Exhibit F, Deposition of Robert Bolin at 13:8–9, 30:12–15 (taken June 5, 2007) (“Bolin Depo.”). Greg Brown and Jim Russell are the co-vice presidents of Maloof New Mexico. See Maloof Distributing's summary judgment motion, Exhibit L, Deposition of Mike Faul at 42:13–14 (“Faul Depo.”). Leyva is the branch manager and reports to Martinez. See Leyva Depo. at 3:18–24. Martinez is the area/district supervisor overseeing Leyva. See id. Leyva testified that Negrete would see him about once a week, and that if Negrete had any issues, he could report them to Leyva. See id. at 24:2–4. Leyva was Negrete's ultimate supervisor. See id. at 24:2–7. Mike Faul was Assistant Manager at the Maloof Distributing Clovis office. See Negrete Aff. ¶ 16, at 4.

Faul testified that he never had any problems with Negrete's work performance, and classified him as a “good,” “honest,” and “hardworking” employee. Faul Depo. at 16:21–17:4. Eddie Montoya, a Maloof Distributing employee, represents that Negrete “conducted himself with the highest work ethic and was an honest hard working employee loyal to Maloof.” Negrete's Response, Exhibit 7, Affidavit of Eddie Montoya (executed Aug. 29, 2007) (“Montoya Aff.”) ¶ 3, at 1. Montoya worked for Maloof Distributing between 2002 and 2004. See Montoya Aff. ¶ 2, at 1. Sergio Lopez, a Maloof Distributing employee, agreed that Negrete was a good employee, had a good attitude, was a hard worker and honest. See Lopez Depo. at 61:5–13. Before December 17, 2004, Negrete did not receive any oral or written...