Alcozar-Murphy v. ASARCO Arizona Incorporated et al

Filing 85

ORDER granting 62 , 64 Motions for Summary Judgment in favor of both Defendants and against Plaintiff. The Clerk of the Court is directed to enter a Final Judgment reflecting this Order. The Complaint and Crossclaims are dismissed and the actio n is terminated. Further ordered that Defendants ASARCO Arizona Inc. and ASARCO Grupo Mexico were dismissed as parties by the state court prior to removal and the Clerks Office is directed to reflect this on the docket. The remaining ASARCO Defendant was ASARCO LLC and now this Defendant is also dismissed from this action. Signed by Senior Judge David C Bury on 2/23/2017.(BAR)

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WO

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Bernadette Alcozar-Murphy, a single woman, )
) CV-14-2390-TUC-DCB
)
Plaintiff,
)
)
vs.
)
ORDER
)
ASARCO Arizona Inc., et al.,
)
)
Defendants.
)

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Pending before the Court are Defendant United Steel Workers of
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America Kearney Local #5252’s (USWA #5252) Motion for Summary Judgment
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(Doc. 62, 63) and Defendant ASARCO LLC (ASARCO) Motion for Summary
15

Judgment

(Doc.

64,

65),

both

filed

in

July

2016.

Plaintiff,

16

Bernadette Alcozar-Murphy (Alcozar-Murphy), responded (Docs. 73, 74,
17

75) in August 2016.

Defendants replied (Docs. 78, 79) in September

18

2016. The Court heard oral argument on December 12, 2016 and granted
19

the USWA motion from the bench while taking the ASARCO motion under
20

advisement.

The Court now rules and elaborates on its ruling from the

21

bench.
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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

1

1

this federal court upon removal.

2

Court denied a Motion to Dismiss and Motion for Sanctions.

3

On July 31, 2015, USWA #5252 filed a Crossclaim against the ASARCO

4

Defendants

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against

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August 2015. Defendants ASARCO Arizona Inc. and ASARCO Grupo Mexico

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were dismissed as parties by the state court. The remaining ASARCO

8

defendant is ASARCO LLC. (Doc. 21.)

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HISTORICAL BACKGROUND

(Doc.

USWA

3)

and

#5252.

the

(Doc.

(Doc. 1-2.)

ASARCO

41.)

A

In March 2015, the

Defendants

Scheduling

filed

Order

a

was

(Doc. 29.)

Crossclaim
entered

in

10

Plaintiff started work with ASARCO in 2005 as a heavy equipment

11

operator. At the time she was terminated from employment, she was a

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commercial haul truck driver.
suffered

a

rare

temporarily

physical

blind.

She

In December of 2012, Alcozar-Murphy

condition

applied

for

that

and

was

caused

her

granted

to

leave

become
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

by

requesting

Human

Resources

additional,

(HR)

detailed

Rosa

Aguirre

(Aguirre),

who

documents.

19

was

return

return-to-work

This delay led to an HR meeting, where her Union Reps Mark

20

Gonzales and Phil Gomez and HR agreed that there was not a problem.
21

Not being happy with that result, Alcozar-Murphy met with Eric Duarte,
22

Union President. The purpose of the meeting was to allow Alcozar23

Murphy to file a grievance against Aguirre for blocking her return to
24

work.

The

meeting

took

place

for

two

hours.

After

the

meeting,

25

Alcozar-Murphy

reported

for

work.

2

Later

that

day,

the

Plaintiff

1

discovered that the two hours of time she spent in the meeting were

2

not listed on her time sheet. Alcozar-Murphy accessed her electronic

3

time record, without permission and against proper protocol, to add

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the non-working hours in which she met with the Union Representatives.

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When ASARCO discovered Alcozar-Murphy’s unauthorized alteration of her

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time record, it terminated Alcozar-Murphy’s employment for dishonesty

7

in

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member of the Union, initially elected to grieve the termination of

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her

violation

employment

10

Collective

11

CBA).

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of

company

through

Bargaining

After

a

delay

policy.

the

Union

Agreement
of

over

Alcozar-Murphy,

pursuant

between

eighteen

the

to

a

the

Union

months,

bargaining

terms

and

of

ASARCO

Plaintiff

filed

unit

the
(the
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
attorneys

compensation
fees,

costs,

for

back

wages,

emotional

front

distress,

pay,

pre-

lost

and

benefits,

post-judgment

interest, and any and all other remedies deemed proper by this Court.
STANDARD OF REVIEW

20

Summary judgment is proper where the pleadings, discovery and
21

affidavits demonstrate that there is “no genuine dispute as to any
22

material fact and [that] the movant is entitled to judgment as a
23

matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary
24

judgment bears the initial burden of identifying those portions of the
25

pleadings, discovery and affidavits that demonstrate the absence of a

3

1

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

2

317, 323 (1986). Material facts are those that may affect the outcome

3

of

4

(1986).

5

sufficient evidence for a reasonable jury to return a verdict for the

6

nonmoving party. Id. Where the moving party will have the burden of

7

proof on an issue at trial, it must affirmatively demonstrate that no

8

reasonable trier of fact could find other than for the moving party.

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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

10

On an issue where the nonmoving party will bear the burden of proof at

11

trial, the moving party can prevail merely by pointing out to the

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13
14
15
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18
19

the

case.
A

Anderson

dispute

as

v.
to

Liberty
a

Lobby,

material

fact

Inc.,
is

477

U.S.

genuine

if

242,

248

there

is

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

20

triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The
21

Court “rel[ies] on the nonmoving party to identify with reasonable
22

particularity the evidence that precludes summary judgment.” Id.; see
23

also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir.
24

2010). Thus, “[t]he district court need not examine the entire file
25

for evidence establishing a genuine issue of fact, where the evidence

4

1

is not set forth in the opposing papers with adequate references so

2

that it could conveniently be found.” Carmen v. S.F. Unified Sch.

3

Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party

4

fails

5

judgment. See Celotex, 477 U.S. at 323.

6

DISCUSSION

to

A.

7

make

this

showing,

1.

Family

Medical

Leave

11

ASARCO

granted

the

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19

is

entitled

to

a

FMLA

10

14

party

On December 14, 2012, Alcozar-Murphy requested leave under the

9

13

moving

Claims Against ASARCO

8

12

the

Act

(FMLA)

requested

related

leave.

to

(Doc.

an
65;

eye

condition,

DSOF

¶

5.)

and

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
resources

submitted

employee,

Rosa

return

to

Aguirre.

work
Due

paperwork
to

the

to

nature

ASARCO
of

human

Alcozar-

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Murphy’s eye condition (temporary blindness) and the nature of her
21

position (commercial haul truck driver), Aguirre requested return-to22

work documents with no restrictions listed. Alcozar-Murphy arranged
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for her physician to provide the correct paperwork, and Alcozar-Murphy
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returned to work on February 21, 2013 with no delay or loss of pay.
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DSOF ¶ 10. Further, Alcozar-Murphy returned to the same position and

5

1

received the same rate of pay when she returned to work on February

2

21,

3

returning to work to the same position, same rate of pay, and on the

4

precise day she was scheduled to return to work (i.e. did not lose any

5

pay due to any slight delay related to arranging a return to work

6

document

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intentionally delayed her return to work from FMLA leave, so Alcozar-

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Murphy requested a meeting with her Union representatives to discuss

9

filing a grievance or civil rights claim against ASARCO. 1

2013

from

with

FMLA

no

leave

related

restrictions),

to

her

eye

condition.

Alcozar-Murphy

believed

Despite

Aguirre

10

“The FMLA creates two interrelated, substantive employee rights:

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first, the employee has a right to use a certain amount of leave for

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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 FMLAcovered leave in making adverse employment decisions[.]” Bachelder,
259 F.3d at 1222.

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Congress recognized that, in an age when all the adults in many
21

families are in the work force, employers' leave policies often do not
22

permit employees reasonably to balance their family obligations and
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25

1

Plaintiff never filed this grievance, so the question of whether or
not HR mistreated Plaintiff because she took FMLA leave is not
properly before this Court. The issue was never exhausted. It can be
6

1

their work life. The result, Congress determined, is “a heavy burden

2

on families, employees, employers and the broader society.” S.Rep. No.

3

103–3 at 4, 103d Cong., 2d Sess. (1993). As for employees' own serious

4

health conditions, Congress found that employees' lack of job security

5

during

6

particularly

7

which need two incomes to make ends meet. Id. at 11–12. As Congress

8

concluded, “it is unfair for an employee to be terminated when he or

9

she is struck with a serious illness and is not capable of working.”

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Id. at 11. In response to these problems, the Act entitles covered

11

employees2 to up to twelve weeks of leave each year for their own

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13
14

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illnesses

devastating

to

that

required

single-parent

them

to

families

miss
and

work

to

is

families

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

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serious

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).

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Plaintiff’s claim in COUNT TWO of the Amended Complaint is based
21

on allegations that ASARCO terminated her, in part, for taking FMLA
22

leave. This allegation has no factual support. To prevail on such a
23

claim, Plaintiff must show “by a preponderance of the evidence that
24

her taking of FMLA-protected leave constituted a negative factor in
25

used

by

Plaintiff

as

evidence

of
7

retaliatory

discharge

based

on

1

the

decision

2

decision to terminate Plaintiff was made after she had returned to

3

work with all previous benefits and job position in place; after she

4

altered the Long Sheet 2 and before she filed a grievance against HR.

5

The grievance was discussed but never initiated.

6

prove this allegation by a preponderance of the evidence that her

7

termination was in any way tied to her taking FMLA leave.

8

motion for summary judgment will be granted on COUNT TWO.
2.

9

to

terminate

her.”

Bachelder,

259

F.3d

at

1225.

The

Plaintiff does not

ASARCO’s

Retaliatory discharge

10

Alcozar-Murphy returned to the same position and received the

11

same rate of pay when she returned to work on February 21, 2013 from

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13
14
15
16
17
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FMLA leave related to her eye condition. DSOF ¶ 11. Because AlcozarMurphy 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 AlcozarMurphy’s

return

from

FMLA

leave.

DSOF

¶¶

14-15.

Alcozar-Murphy

received compensation for that meeting because an ASARCO supervisor
20

sanctioned, scheduled, and attended the meeting. DSOF ¶ 16. After
21

meeting with Roy Smith, Alcozar-Murphy’s Union representatives advised
22

Alcozar-Murphy she had no basis for filing a grievance or civil rights
23
24
25

engaging in protected activity.
2 The Long Sheet is an official computerized ASARCO document created to
keep track of employee assignments, regularly scheduled work time, and
overtime.
8

1

complaint against ASARCO regarding her return from FMLA leave. DSOF ¶

2

17. Alcozar-Murphy was not happy with that assessment and requested a

3

follow-up meeting with the Union president at the time, Eric Duarte.

4

On February 26, 2013, Alcozar-Murphy was scheduled to work B

5

shift from 3:00 pm. to 11:00 p.m. DSOF ¶ 18. Alcozar-Murphy alleges

6

she

7

because ASARCO supervisor Roy Smith arranged a meeting with Alcozar-

8

Murphy, Mr. Smith, and Mr. Duarte, her Union representative. DSOF ¶

9

19. Both Roy Smith and Eric Duarte agree that Roy Smith did not set

arrived

to

hours

approximately

18
19

Alcozar-Murphy

p.m.,

and

Eric

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

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17

between

1:00

Duarte on February 26, 2013. Rather, Mr. Duarte spoke with Alcozar-

15

meeting

at

11

14

attend—the

early,

up—or

13

to

two

10

12

plan

work

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
20

the meeting and would be present for the meeting. However, Roy Smith
21

did not set up or attend the meeting. Mr. Smith did not even know
22

about

the

meeting

before

it

happened.

DSOF

¶

23.

No

ASARCO

23

representative

required

or

requested

24

Duarte on February 26, 2013. DSOF ¶ 24.
25

9

Alcozar-Murphy

meet

with

Eric

1

Alcozar-Murphy has not produced objective evidence, such as any

2

e-mail or written correspondence, demonstrating that her attendance at

3

the meeting with Eric Duarte on February 26, 2013 was mandatory or

4

that ASARCO, through Roy Smith, sanctioned, scheduled, or planned to

5

attend the meeting. DSOF ¶ 25-26. Alcozar-Murphy admits if you meet

6

solely with Union representatives outside of your scheduled shift, you

7

are not paid for that meeting time. DSOF ¶ 27. No provision of the

8

Basic Labor Agreement (BLA) between the Union and ASARCO states that

9

bargaining unit members receive payment for time they meet solely with

10

Union representatives. DSOF ¶ 28. No written ASARCO policy states that

11

Alcozar-Murphy

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13

16
17
18
19

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

14
15

was

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, AlcozarMurphy accessed the Long Sheet and added two hours of overtime next to

20

her name on the Long Sheet. DSOF ¶ 32. After altering the Long Sheet,
21

Alcozar-Murphy removed and discarded the original signed and approved
22

Long Sheet for February 26, 2013 and replaced it with the altered Long
23
24
3

25

A Day Pay Supervisor is a relief foreperson; hourly workers trained to
fill in for salaried positions on an on- call or as needed basis; only
ASARCO supervisors and employees who have Day Pay supervisor
responsibilities have computer access to the Long Sheet.
10

1

Sheet

2

Alcozar-Murphy to access the Long Sheet on February 26, 2013 and add

3

two hours of overtime to the column next to her name, and no ASARCO

4

supervisor signed or approved the modified Long Sheet. DSOF ¶¶ 34-35.

5

If Alcozar-Murphy actually received 5-5 supervisor 4 approval—as she

6

alleges—the 5-5 supervisor, not Alcozar-Murphy, should have accessed

7

the Long Sheet and/or signed off on a modified Long Sheet. ASARCO

8

supervisors Craig Moore and/or Oliver Johnson, both 5-5 supervisors

9

who Alcozar-Murphy admits were in the same building as her when she

10

accessed the Long Sheet (indeed, Alcozar-Murphy alleges they were as

11

close as “two feet away” from her), could have accessed and revised

12
13
14
15
16
17

modified.

DSOF

¶

33.

No

ASARCO

supervisor

authorized

the Long Sheet on February 26, 2013 to add two hours of allegedly
approved overtime from the same computer Alcozar-Murphy used to modify
the Long Sheet. DSOF ¶ 36. Alcozar-Murphy’s Union representative, Eric
Duarte, agreed that it is “absolutely” an inappropriate and terminable
offense if a Day Pay employee, without supervisor approval, accesses
the Long Sheet and adds two hours of overtime to their pay. DSOF ¶ 37.
On March 4, 2013, ASARCO terminated Alcozar-Murphy’s employment

18
19

she

after

an

investigation

unilaterally

accessed

in

the

which
Long

ASARCO

Sheet

discovered

herself

to

add

Alcozar-Murphy
two

hours

of

20

overtime, interviewed the 5-5 supervisors scheduled on February 26,
21

2013,

and

confirmed

that

no

5-5

supervisor

gave

Alcozar-Murphy

22
23
24
25

4

A 5-5 Supervisor is the highest supervisor on a shift; a 5-5
supervisor approves the Long Sheet by signing it and posting the
signed copy for public viewing; a 5-5 supervisor must approve
any overtime that a Day Pay supervisor inputs onto the Long
Sheet; a Day Pay employee cannot approve overtime.
11

1

approval to access the Long Sheet and add two hours of overtime to her

2

pay. ASARCO terminated Alcozar-Murphy’s employment for two reasons:

3

theft and falsification of company documents. DSOF ¶ 38. Had ASARCO

4

not discovered Alcozar-Murphy added two hours of overtime to the Long

5

Sheet on February 26, 2013, Alcozar-Murphy would have received payment

6

for said two hours of overtime. DSOF ¶ 39. Alcozar-Murphy falsified

7

ASARCO documents by accessing the signed and approved version of the

8

Long Sheet for February 26, 2013 and adding two hours of unapproved

9

overtime

10

13
14
15
16
17
18
19

to

her

name.

DSOF

¶

40.

ASARCO

terminated

Alcozar-

Murphy’s employment for legitimate reasons; namely, timecard fraud.
ASARCO

11
12

next

Agreement

followed

the

grievance

procedure

in

the

Basic

Labor

(BLA) with respect to the termination of Alcozar-Murphy’s

employment. DSOF ¶ 42. ASARCO provided Alcozar-Murphy, through her
Union representation, with fair hearings and opportunities to share
her version of events leading up to the termination of her employment
with

ASARCO.

DSOF

¶

43.

Despite

alleging

ASARCO

supervisors

Jack

Oldfather, Oliver Johnson, Craig Moore, and/or Day Pay supervisor Greg
Zaragosa were aware of and/or approved of Alcozar-Murphy adding two
hours of overtime to the Long Sheet, neither Alcozar-Murphy nor the
Union asked any of said supervisors to testify or provide evidence on

20

her behalf at any step of the grievance process. DSOF ¶ 44. Despite
21

alleging

ASARCO

supervisor

Roy

Smith

arranged

the

meeting

with

22

Alcozar-Murphy and Eric Duarte on February 26, 2013, neither Alcozar23

Murphy nor the Union asked Roy Smith to testify or provide evidence of
24

that fact at any step of the grievance process. DSOF ¶ 45. During the
25

grievance process (and in this litigation), neither Alcozar-Murphy nor

12

1

the Union ever alleged ASARCO violated any specific provision of the

2

Basic Labor Agreement (BLA) between ASARCO and the Union. DSOF ¶ 46.
ASARCO

3

terminated

Alcozar-Murphy’s

employment

for

unapproved

4

overtime entries, not because she rightfully demanded pay for two

5

hours of compensable time (as alleged in COUNT ONE) or because she

6

demanded payment for meeting with her Union Representative (as alleged

7

in COUNT TWO). Alcozar-Murphy admits there is no specific provision in

8

the BLA between ASARCO and USWA #5252 which provides payment (let

9

alone overtime) for non-working time in which she met solely with her

10

Union representative, so ASARCO did not violate the BLA (as alleged in

11

COUNT THREE).
Alcozar-Murphy alleges in her Response, in direct contravention

12
13
14
15
16
17
18

of his actual testimony, that Union President Eric Duarte testified
that

“the

BLA

required

Alcozar-Murphy

be

paid

for

attending

the

meeting [on February 26, 2013]…” (PResponse, p. 12.) The following
section of Eric Duarte’s deposition transcript (97:1-6), produced in
support of ASARCO’s DSOF ¶ 28, directly contradicts Alcozar-Murphy’s
allegations:

20

Q: Let me get back to my original question though, which was in the
contract [BLA] as you understand it, is there a written provision
saying that employees are entitled to be paid for meeting solely with
you, with no ASARCO representative?

21

A: No.

19

22

Alcozar-Murphy

alleges

she

was

scheduled

in

a

“Day

Pay”

23

supervisory role on February 26, 2013, ostensibly to argue she had
24

reason/authority to access the Long Sheet that day.

(“On February 26,

25

2013, Alcozar-Murphy was scheduled to work her regular Day Pay shift

13

1

from 3:00 pm to 11:00 pm.”). CSOF ¶ 18. The transcript section (46:9-

2

23) from Alcozar-Murphy’s deposition referenced in “support” for said

3

allegation is directly contradictory:

4

Q:
A:
Q:
A:
…
Q:
A:

5
6
7

Now, on – and so that meeting was set to occur February 26th?
That’s correct.
And do you remember your scheduled shift for that day?
Yes, B shift from 3:00 to 11:00.
Okay. Did you believe that you were on day pay status that day?
No, sir.

8

Alcozar-Murphy

quotes

sections

from

Eric

Duarte’s

deposition

9

testimony to give the appearance ASARCO violated Notice provisions of
10
11
12
13
14
15
16
17
18
19
20

the

BLA.

Specifically,

deposition

transcript

the

following

(106:14-24)

is

portion

expressly

of

Mr.

quoted

by

Duarte’s
Alcozar-

Murphy in her Response at p. 7 and in support of CSOF ¶ 31, but the
bold section (106:25-107:2) is left out:
Q: Okay. I’m a little confused as to the three-day notice issue with
regard to termination. Did ASARCO initially – my understanding is they
initially suspended Ms. Alcozar-Murphy, pending a hearing; is that
your is that your understanding?
A: My understanding, they told me they wanted to have a meeting to
discuss potential suspension. And when we showed up, it was a
termination hearing.
Q: Okay. And was it your understanding that ASARCO could terminate an
employee for dishonest acts without a three-day notice?
A: At that point in time, no.
Q: Is it your understanding now, that there’s a provision that allows
them to do that?
A: Yes.

21

A.R.S. § 23-1501 was enacted as part of the Arizona Employment
22

Protection Act (AEPA), which “was intended to narrow the availability
23

of

wrongful

termination

claims.”

Galati

v.

America

West

Airlines,

24

Inc., 205 Ariz. 290, 69 P.3d 1011, 1014 n. 4 (2003). Further, Arizona
25

courts appear to have an established practice of relying upon relevant

14

1

federal

2

claims brought under the Arizona Civil Rights Act. See Najar v. State,

3

198 Ariz. 345 (2000); see also Storey v. Chase Bankcard Services,

4

Inc., 970 F.Supp. 722, 724 (D.Ariz.1997) (“[D]ecisions interpreting

5

Title VII are regarded by Arizona's courts as persuasive authority in

6

interpreting ACRA, unless any particular part of Title VII affords

7

greater coverage.”). This again suggests that Arizona courts would

8

likewise rely upon federal case law when interpreting Arizona's newer

9

retaliation statutes, such as A.R.S. § 23-1501. Gerberry v. Maricopa

10

County,

13
14
15
16
17
18
19

ASARCO

for

guidance

when

interpreting

employment

retaliation

2006 WL 774929 (March 28, 2006).

To

11
12

law

prevail,

Plaintiff

terminated

her

bears

employment

the

burden

because

of

she

establishing

intended

to

that

file

a

grievance and engaged in protected activity while talking with HR and
Union Reps.
Complaint
entitled

Plaintiff is not and does not allege in her Amended

that
to

she

summary

is

a

whistleblower.

judgment

because

ASARCO

Plaintiff

argues
did

that

not

it

is

engage

in

activity protected by the AEPA and cannot establish a causal link
between the allegedly protected activity and her termination, ie, she
does not state a prima facie case.

Even so, ASARCO has put forth

substantial evidence that the reason for termination was not pretext
20

for

retaliation

for

engaging

in

protected

activity,

but

a

pure

21

violation of the BLA code of conduct; she intentionally and knowingly
22

altered formal records and attempted to give herself two extra hours
23

of pay when it was not authorized or promised.
24
25

15

a. Protected Activity

1

Alcozar-Murphy bears the burden of establishing the elements of

2
3

her claim.

The evidence put forth is meetings with HR and Union Reps

4

about

5

retaliation, this is protected activity.

6

terminated from employment. Based on the undisputed facts and legal

7

arguments, this Court may conclude that Plaintiff engaged in protected

8

activity, suffered an adverse employment action, and therefore has

9

established a prima facie case.

filing

a

14
15
16
17
18
19

the

federal

law

of

employment

Shortly thereafter, she was

Next, Plaintiff must establish a causal link between the alleged

11

13

Under

b. Causation

10

12

grievance.

protected activity and her termination. Some cases in this District
have

assumed

that

the

McDonnell-Douglas

burden-shifting

framework

utilized in Title VII cases applies. See Levine v. TERROS, Inc., No.
CV-08-1458-PHX-MHM, 2010 WL 864498, at *8-10 (D. Ariz. March 9, 2010);
Cox v. Amerigas Propane, Inc., No. CV-04-101-PHX-SMM, 2005 WL 2886022,
at

*12-14

(D.

Ariz.

March

26,

2009).

This

framework

determines

causation by asking whether “a retaliatory motive played a part in the
employment action.” Knox v. United States Rental Highway Techs, Inc.,
No. CIV 07-0297-PHX-DKD, 2009 WL 806625, at *5 (D. Ariz. March 26,

20

2009) (citing Cohen v. Fred Meyer, Inc., 686 F.2d 793, 798 (9th Cir.
21

1982)).

The

plaintiff

must

first

establish

a

prima

facie

case

by

22

offering evidence that she: (1) engaged in protected activity; (2)
23

suffered an adverse employment action; and (3) was terminated as a
24

result. See Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112-13
25

(9th Cir. 2003). If the plaintiff makes such a showing, the burden

16

1

shifts to the defendant to articulate a legitimate, non-retaliatory

2

reason

3

reason, the burden returns to the plaintiff to show that the reason is

4

pretextual.

5

whistleblower.)

6

for

its

Here,

Id.

it

actions.

(Again,

is

Id.

If

the

Plaintiff

undisputed

defendant

does

that

not

articulates

claim

ASARCO’s

that

stated

such

she

is

reason

a

a

for

7

terminating Plaintiff was because it believed that she had falsified

8

the Long Sheet, an internal record, and had improperly given herself

9

two hours of overtime. It is of no moment whether that belief was

10

correct,

11

terminate Plaintiff because she consulted with HR and was considering

12

so

long

17
18
19

was

not

substantially

motivated

to

c. Pretext
Plaintiff’s position is that the termination was in fact

14

16

ASARCO

filing a grievance and/or because she had taken FMLA leave.

13

15

as

pretext for taking the FMLA leave and then complaining about what she
perceived

as

a

deliberate

delay

in

return

to

work

resulted in her expressed desire to file a grievance.

by

HR,

which

Evidence of

pretext may be direct or circumstantial.
The Ninth Circuit has cautioned that “a specified time period
cannot be a mechanically applied criterion” in considering whether an

20

employment decision was retaliatory. Coszalter v. City of Salem, 320
21

F.3d 968, 977 (9th Cir.2003); Rowberry v. Wells Fargo Bank, 2015 WL
22

7273136 (November 18, 2015).

Here, the timing might circumstantially

23

suggest

retaliation,

but

the

HR

meeting

on

2/22/13

followed

by

24

Plaintiff’s termination from employment on 3/4/13 are interrupted in
25

17

1

time

by

the

falsification

of

records

on

2/26/13.

2

In

sum,

circumstantial evidence of timing is not helpful here.

3

The other factor to consider is whether or not ASARCO followed or

4

violated its own procedures for termination. A chronology of events is

5

helpful

6

returned to work after FMLA leave into the same position with the same

7

pay. On 2/22/13, Plaintiff and HR/Union Reps have a meeting about HR

8

delaying Plaintiff’s return to work and a possible grievance; Union

9

Reps disagree. On 2/26/13, Plaintiff has the meeting with the Union

to

answer

question:

16

start

of

her

work

officially

approximately 2 hours. On 2/26/13, Plaintiff alters the time sheet to

15

the

Plaintiff

11

14

her

2/21/13,

President

13

before

On

10

12

Duarte

this

shift

lasting

reflect 2 extra hours OT (overtime). (Doc. 75-1 Ex. 14, 15.)

On

2/27/13, the ASARCO Computer system detects Plaintiff’s entry into the
system to change the record; to enter the computer to increase her pay
included calling herself by the title “day pay” supervisor, which she
was not for 2/26/13. (Doc. 75-1, Ex. 16.)

17
18
19
20

245677
245711
246177
24ll353
246541
246596
246913
246931
246951
246984

Edmiston, Jim
SaHelberg. Dan coza
r, Bernadette
McPeak, erry
Myera, ason
Steinke, Frank
Martinez, Albert
Lolt, Da'lid Mills,
Fred Morgan,
Dean

ttT

420

DZF
DZf

524
525
516
552
426
458

DZI
SH
HT
HT
ORI

426
2HRSOT

426
400

240964
241266
241772
243300
244426

5

564
HT 405

227119 Garcia,

DZI

405

J.

Horta, Jesse
Avalos, Ed Gilliam,
Randy Scaggs,
Billy Archuleta,
Johnny

DZR

549

FL

7HR

OT

92
40 T

DZR

CABLE CREW

LEADMAN

CABL-E CREW

FL

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21

(246177: Doc. 75-18 at 2.)
22

At this time, Plaintiff: 1. entered the system when she did not have
23

authority to do so; 2.

misstated her status that day as “day pay”

24

supervisor in the computer; 3. attempted to add two hours of overtime
25

–

which

is

more

money

than

regular

18

pay,

without

313XI

permission

or

76422

y

1

authority to do so; and, 4.

entered a supervisor’s name who had not

2

been asked permission to do any of this; in fact, either the real day

3

pay supervisor or a 5-5 supervisor would have actually had to make the

4

entry because Plaintiff lacked authority that day to make entries into

5

the system.
The next day, the computer generated a document that reflected

6
7

Plaintiff’s

access

the

day

before.

(DSOF,

Ex.

17.)

On

2/27/13,

8

Plaintiff received a Notice of Disciplinary Action: she was suspended

9

and advised of a future hearing (Ex. 20).

On 3/1/2013, Plaintiff

10

received another Notice of Hearing, which involved fact finding for

11

the

12
13
14
15
16

19

log-in.

On

3/4/13,

a

hearing

was

conducted

and

Plaintiff was terminated for violation of BLA Rules of Conduct #5 and
#20 5 (DSOF, Ex. 23).

On 3/19/13, Plaintiff had her “third step”

hearing to grieve the termination. (DSOF, Ex. 24).
Union

representatives

requested

termination

On 3/26/13, her

arbitration

and

on

its

own

11/25/14, the Union scheduled her arbitration.
There

17
18

unauthorized

is

no

evidence

submitted

that

procedures when it terminated Plaintiff.

ASARCO

violated

The procedures are contained

in the BLA. (Doc. 65-2, ASARCO MSJ at Ex. 6.) BLA Art. 5, Sec. I,
9.b.(2)

suspends

the

routine

grievance

procedure

when

the

offense

20

involves dishonesty and/or theft such that immediate discharge without
21

benefit of progressive discipline is deemed warranted. 6

This is what

22
23
24
25

5

“5. Stealing or unauthorized possession of company property…20.
Falsifying company records or making false statements.” (Ex. 23.)

6

BLA I. 9 b.(2):“ … O ffenses which endanger the safety of
employees or the plant and its equipment…destruction of
Company property; gross insubordination… theft; activities
19

1

occurred

in

Plaintiff’s

2

conduct

3

supervisor is an honor and a reward for being a trusted, reliable

4

employee;

5

responsibilities.

6

inappropriately accessing and altering the computerized Long Sheet

ASARCO

a

case

utilized

means

to

of

Part

and

this

terminate

delegating
of

the

is

the

procedural

rule

of

Being

day

pay

Plaintiff.

management-type
honor

a

and

involves

system

duties

not

7

The burden is on the Plaintiff to produce evidence that the

8

reason for discharge was pretext and she does not meet that burden.

9

COUNT ONE of the Amended Complaint will be dismissed.

10

B. Claims Against the Union

11

While on the bench during oral argument, the Court granted the

12
13
14
15

USWA

18
19

motion

for

summary

judgment.

The

Union

timely

filed

a

grievance protesting the Plaintiff’s termination. The Union conducted
an

investigation

about

the

underlying

events

and

scheduled

an

arbitration.
Plaintiff asserts a "hybrid" claim under Section 301 of the Labor

16
17

#5252

Management Relations Act, 29 U.S.C. §158 et seq. See Vaca v. Sines,
386

U.S.

171

(1967).

Under

that

section,

the

Court

held

that

an

employee could sue his employer and union under section 301--either
separately

or

in

a

single

suit--and

that,

after

proving

that

the

20

employer violated the labor agreement and the union breached its duty
21

of fair representation, he may be entitled to recover damages from
22
23
24

prohibited by A… the Company has just cause to impose
immediate discharge without benefit of progressive
discipline.”

25

20

1

both the employer and the union. Since Vaca the Court has made it

2

clear that the claim alleging a breach of the labor agreement is a

3

statutory claim deriving from section 301, while the claim alleging a

4

breach of the Union's duty of fair representation is a judicially

5

implied claim necessitated by the special relationship that labor law

6

creates between union and employee. While formally two separate causes

7

of action, an employee's two claims in a hybrid section 301 suit are

8

also "inextricably interdependent" and comprise a departure from the

9

private settlement of disputes pursuant to a collective bargaining

10

agreement.

11

employer due to the union's failure to fairly and properly represent

12

15
16

Plaintiff

19

damages

from

both

the

union

and

the

claims

that

the

Union

breached

its

duty

of

fair

representation when it failed to “fairly and reasonably” represent
her. Yet, in her deposition, Plaintiff clarified that the only basis
for her claim is the delay in scheduling the Grievance for arbitration
A union only breaches the statutory duty of fair representation

17
18

seeks

her during the grievance process.

13
14

Plaintiff

when its “conduct toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190.
Both

the

Supreme

Court

and

the

Ninth

Circuit

have

“stressed

the

20

importance of preserving union discretion by narrowly construing the
21

unfair

representation

doctrine.”

Johnson

v.

United

States

Postal

22

Service,

756

F.2d

1461,

1465

(9th

Cir.

1985)

(internal

citations

23

omitted). This discretion is especially important when evaluating a
24

union’s handling of grievances: “[c]ourts may upset union decisions on
25

employee grievances only if the union shows reckless disregard for an

21

1

employee’s rights.” Id. at 1465 (emphasis added) (internal citations

2

omitted).
Far from showing “reckless disregard” for Plaintiff’s rights, the

3
4

Union

5

termination. When the parties were unable to resolve the Grievance,

6

the Union appealed it to arbitration. (Separate Statement of Facts ¶

7

19). The Union then made several attempts to schedule the arbitration

8

with the Company. In a very similar case, Dente v. Int’l Org. of

9

Masters, Mates and Pilots, Local 90, 492 F.2d 10 (9th Cir. 1973), the

10

plaintiff filed a grievance over his discharge. Because the local

11

union

12
13

immediately

was

involved

filed

in

the

contract

Grievance,

protesting

negotiations,

the

Plaintiff’s

parties

did

not

arbitrate the plaintiff’s grievance (along with many other grievances)
until almost a year later. Id. at 11. The Court found:
Examining the entire record, we find no evidence
that the union “unfairly represented” Dente in a
manner for which compensation is available under
Vaca v. Sipes supra. We can perceive no union
conduct that was performed in bad faith or that
could
be
characterized
as
arbitrary
or
discriminatory. The worst that can be said of the
union’s conduct is that it was negligent, and
this of course is not enough. For whatever can be
said of the union’s delay in processing the
grievance and moving to arbitration, it was not
that kind of “arbitrary abuse” giving rise to
damages under section 301.

14
15
16
17
18
19
20
21

Id.

22

Fed.Appx. 14 (9th Cir. 2005).

at

12

(internal

citations

omitted);

Aparicio

v.

Potter,

136

23

Plaintiff’s only basis for her claim that the Union breached its

24

duty of fair representation is the inadvertent delay in scheduling the

25

Grievance

for

arbitration.

Nothing

22

distinguishes

this

case

from

1

others, where courts have found no breach of the duty when the only

2

issue is a backlog delay in processing a grievance. In a hybrid claim,

3

Plaintiff

4

representation and a contract violation and she does neither. Vaca,

5

386 U.S. at 187.

6

RULING
There

7

must

are

establish

no

both

material

a

breach

questions

of

of

fact

the

duty

precluding

of

fair

entry

of

8

summary judgment in favor of Defendants on all claims in both motions

9

for summary judgment. This ruling renders the Crossclaims moot.
Accordingly,

10

IT IS ORDERED that both motions for summary judgment (Docs. 62,

11
12
13
14
15
16
17
18
19

64) are GRANTED in favor of both Defendants and against Plaintiff.
The

Clerk

of

the

Court

reflecting this Order.

is

directed

to

enter

a

Final

Judgment

The Complaint and Crossclaims are dismissed

and the action is terminated.
IT IS FURTHER ORDERED that Defendants ASARCO Arizona Inc. and
ASARCO Grupo Mexico were dismissed as parties by the state court prior
to removal and the Clerk’s Office is directed to reflect this on the
docket. (Doc. 21.) The remaining ASARCO Defendant was ASARCO LLC and
now this Defendant is also dismissed from this action.

20
21

Dated this 23rd day of February, 2017.

22
23
24

Honorable David C. Bury
United States District Judge

25

23