Principles Of Fair Representation Assignment

Diana L. Garcia, Plaintiff, vs. Salt River Project Agricultural Improvement and Power District; International Brotherhood of Electrical Workers Local Union 266,

John Does I-V and Jane Does I-V; Black Corporations I-III and White Partnerships I-III, Defendants.

No. CV-05-1279-PHX-ROS


618 F. Supp. 2d 1092; 2007 U.S. Dist. LEXIS 98440

September 30, 2007, Decided

PRIOR HISTORY: Garcia v. Salt River Project Agric. Improvement & Power Dist., 2006 U.S. Dist. LEXIS 54871 (D. Ariz., Aug. 4, 2006)

COUNSEL: [**1] For Diana L Garcia, a single woman, Plaintiff: Angela Marie Wilson-Goodman, LEAD ATTORNEY, Wilson-Goodman & Fong PC, Gilbert, AZ.


For Salt River Project Agricultural Improvement and Power District, a political subdivision of the State of Arizona, Defendant: John James Egbert, LEAD ATTORNEY, Jennings Strouss & Salmon PLC, Collier Ctr, Phoenix, AZ.

For Local 266 International Brotherhood of Electrical Workers, Defendant. Stanley Lubin, LEAD ATTORNEY, Lubin & Enoch PC, Phoenix, AZ

JUDGES: Roslyn O. Silver, United States District Judge.

OPINION BY: Roslyn O. Silver


[*1094] ORDER

Pending are various defense motions. The Court will

deny SRP’s motions to strike, will grant in part and deny in part SRP’s Motion for Summary Judgment, and will grant the Union’s Motion for Summary Judgment.


The following facts are not disputed. In 1987, the Plaintiff, Diana L. Garcia (a hispanic woman), was hired by Salt River Project Agricultural Improvement and Power District (“SRP”) (SRP SOF P 1). Plaintiff held various positions with SRP until she became a Tradeshelper in 1994 (SRP SOF P 2). Later, in 1999, she was promoted to the position of Equipment Operator II, a position in which Plaintiff operated mobile cranes (SRP SOF P 3). On April 27, 2004, while Plaintiff was operating a crane to replace a transformer in a mobile park, the crane tipped over and [*1095] crashed [**2] into two mobile homes (SRP SOF P 5).

An SRP investigation determined that the crane accident was preventable. The mobile crane had four stabilizing legs called “outriggers” on the corners of the bed of the truck that can be extended out six feet from the truck (SRP SOF P 16). Plaintiff was trained that by fully extending the outriggers the stability of the crane is maximized and to use larger pads on the outriggers whenever the ground was questionable in any way (SRP SOF P 16, 18). 1 Plaintiff also understood that, as the Equipment Operator, she had full authority not to go

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forward with a lift that she felt was unsafe or improper and that she had full authority to tell her supervisor that the lift was unsafe and should not proceed (SRP SOF P 24-25).

1 The operator’s manual for the crane, which Plaintiff was expected to read and follow, also instructs that “[t]he outriggers shall be fully extended . . . before operating the boom” and that “[i]t may be necessary to provide additional support under the outrigger floats to spread the load over a larger bearing surface” (SRP SOF P 22, 26).

When Mike Kirby (a white male), foreman of the crew on which Plaintiff was working on April 27th, directed [**3] the set up of the crane in preparation to replace the transformer the two front outriggers were not fully extended (PSOF P 1-2; SRP SOF P 38). Plaintiff was in agreement with the way the crane was set up (SRP SOF P 40).

SRP investigation

Further, while three of the outriggers were placed on asphalt or concrete, the right rear outrigger was placed on dirt (SRP SOF P 39). The larger pad was not used to increase the stability of the right rear outrigger placed on the dirt (SRP SOF P 57). When Plaintiff began lowering the transformer to its destination, the right rear outrigger sunk into the ground and the crane crashed into the mobile homes (PSOF P 20). An SRP investigation revealed that the cause of the accident was failure to properly extend the outriggers and set them on solid footing (PSOF P 25).

Representatives from the International Brotherhood of Electrical Workers Local Union 266 (“Union”) were present during much of the investigatory process. Following the accident, SRP interviewed all the employees who witnesses the accident, including Plaintiff (Union’s SOF P 4). A Union representative was present during these interviews (Union’s SOF P 4). A Union representative also talked with Plaintiff and [**4] took photos of the crane after the accident (Union’s SOF P 6). At an SRP interview at which a Union representative was present, Plaintiff stated:

“I take full responsibility for the operation of that vehicle” (Union’s SOF P 8). However, Plaintiff later clarified that she accepted responsibility for the operation of the crane, not the entire accident (SRP SOF P 74). A Union representative also consulted other crane operators who advised the Union that the crane was not set up properly (Union’s SOF P 9).

After SRP reviewed the causes of the crane accident

and Plaintiff’s history of prior accidents, it initially decided to terminate Plaintiff’s employment as a result of the crane accident (SRP SOF P 71). SRP considered in making its decision that, prior to this accident, Plaintiff was involved in three other accidents which SRP had previously determined to be preventable: she backed an SRP truck into a building at a car dealership in 1998 and she ran into a card reader for a gated entrance to an SRP facility in both 2000 and 2001 (SRP SOF P 7, 66).

After the 2001 accident, Plaintiff was formally disciplined and warned that any further accidents could result in further discipline, including [**5] discharge (SRP SOF P 66). Plaintiff presented evidence that fourteen [*1096] other males with a total of 64 SRP Safety Code violations were never discharged for their behavior (PSOF P 31).

Union’s consent

At the urging of the Union on Plaintiff’s behalf and with the Union’s consent, SRP agreed to allow Plaintiff to choose demotion to her prior position of Tradeshelper in lieu of termination (SRP SOF P 72). Under the terms of the demotion option, Plaintiff could have later become eligible to bid back up to higher-rated positions, including that of an Equipment Operator, as long as she did not operate a crane (Union’s SOF P 14). The Union determined that the demotion offer was the best that it could do to minimize the disciplinary action (Union’s SOF P 12). The foreman, Mr. Kirby, received a written reminder as discipline for his part in the accident, in which he was placed on probation for 18 months (PSOF P 30).

Plaintiff rejected the demotion option and her employment with SRP was terminated on May 3, 2004 (SRP SOF P 9-10). After Plaintiff was discharged, the Union filed a formal grievance on May 4, 2004, but later withdrew it because the Union did not feel the grievance had merit (Union’s SOF P 17). Plaintiff [**6] filed her charge of discrimination with the EEOC on August 9, 2004 (SRP SOF P 84). Subsequently, on December 13, 2004, Plaintiff filed suit against SRP alleging discrimination and hostile work environment.

Plaintiff alleges that she was subject to a hostile work environment because of her gender, race, and national origin from the time she began working with SRP in 1987 until October 2003. (See PSOF P 34-45; SRP SOF P 76-77). Plaintiff also brought suit against the Union alleging breach of the duty of fair representation and breach of contract.


Page 2 618 F. Supp. 2d 1092, *1095; 2007 U.S. Dist. LEXIS 98440, **2



I. Jurisdiction

Plaintiff has brought this suit pursuant to Title VII of the Civil Rights Act of 1964. The Court has federal question jurisdiction. 28 U.S.C. § 1331. And the Court has jurisdiction over Plaintiff’s state law claims pursuant to the supplemental jurisdiction statute. 28 U.S.C. § 1367.

II. Motions to Strike

SRP moves to strike “evidence that 14 males with 64 total violations of Defendant SRP’s Safety Code were never discharged for their behavior,” which was included in Plaintiff’s Statement of Facts. SRP also moves to strike Plaintiff’s thirteenth supplemental disclosure statement which discloses this information. 2 SRP seeks [**7] to strike this evidence because these 14 males were not identified before the discovery deadline in response to an SRP interrogatory which requested Plaintiff to “[i]dentify all SRP employees whom you claim were similarly situated to you, but were treated more favorably by SRP.” (Doc. 162, Ex. A.)

2 SRP’s motions to strike are more properly characterized as an objection to the use of evidence. See Fed. R. Civ. P. 37(c)(1).

However, in Plaintiff’s Response to SRP’s Motion for Summary Judgment, she does not argue that these 14 males are similarly situated. Rather, Plaintiff uses this evidence to argue that her firing was a pretext for discrimination. (See P’s Resp. to MSJ at 12-13.) The Court will not consider the evidence of the 14 males when deciding whether similarly situated persons outside the protected class were treated more favorably than Plaintiff. 3 [*1097] Consequently, the Court will deny SRP’s motions to strike.

3 Likewise, if Plaintiff was trying to introduce the evidence of the 14 males to show that similarly situated persons outside the protected class were treated more favorably than herself, the Court will not consider the evidence because this information was not supplemented before [**8] the end of the discovery deadline. See Fed. R. Civ. P. 37(c)(1). Plaintiff’s failure to supplement her interrogatory response would not be harmless.

III. Summary Judgment Standard

A court must grant summary judgment if the

pleadings and supporting documents, viewed in the light most favorable to the non-moving party, “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Substantive law determines which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In addition, the dispute must be genuine, that is, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

opposing summary judgment

Furthermore, the party opposing summary judgment “may not rest upon the mere allegations or denials of [the party’s] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); [**9] see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

” Anderson, 477 U.S. at 249-50 (citations omitted). However, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. at 255. Therefore, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor” at the summary judgment stage. Id. Finally, Rule 56(e) contemplates the result of a party’s failure to respond adequately to a motion for summary judgment. If the non-moving party does not respond by setting forth specific facts showing there is a genuine issue for trial, “summary judgment, if appropriate, shall be entered against the [non-moving] party.” Fed. R. Civ. P. 56(e).

III. Disparate Treatment Claim Against SRP

Plaintiff alleges that SRP targeted Plaintiff for more severe punishment due to her gender, race, and national origin. Specifically, [**10] Plaintiff argues that she received disparate treatment because she was subjected to greater punishment than Mr. Kirby.

The proper legal framework for determining whether Plaintiff’s disparate treatment claim should survive

Page 3 618 F. Supp. 2d 1092, *1096; 2007 U.S. Dist. LEXIS 98440, **6


shifting scheme

summary judgment is the burden shifting scheme: Plaintiff must establish a prima facie case of discrimination; if Plaintiff succeeds in establishing a prima facie case, the burden of production shifts to SRP to articulate a legitimate, nondiscriminatory reason for terminating Plaintiff’s employment; and if SRP does so, Plaintiff must demonstrate that SRP’s articulated reason is a pretext for unlawful discrimination by “either directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the [*1098] employer’s proffered explanation is unworthy of credence.” Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 658-659 (9th Cir. 2002) (citations and internal quotations omitted).

To establish a prima facie case for her claim, Plaintiff must show that (1) she belongs to a protected class, (2) she was qualified for the position, (3) she was subject to an adverse employment action, and (4) similarly situated persons [**11] outside the protected class were treated more favorably. Aragon, 292 F.3d at 658. Here, the first three elements are clearly met. However, Plaintiff cannot establish a prima facie claim of disparate treatment because Mr. Kirby was not similarly situated.

Major League Baseball

“In order to show that the ’employees’ allegedly receiving more favorable treatment are similarly situated . . ., the individuals seeking relief must demonstrate, at the least, that they are similarly situated to those employees in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). For example, in Moran, the plaintiffs, Major League Baseball (“MLB”)

players who had played less than the number of years required to vest certain benefits, argued that they were similarly situated to former Negro League players who had also played less than the required number of years, but who received the benefits. Id. Although the court noted that there were some similarities, it found that the plaintiffs were not similarly situated in all material respects because they were “never prevented from playing for a MLB team, and thus unable to acquire the necessary longevity.” Id. Moreover, the plaintiffs never played in the Negro Leagues, [**12] a primary requirement for eligibility under the Negro League Plans. Id.

Plaintiff’s employment

Like the plaintiffs in Moran, Plaintiff is not similarly situated in all material respects to Mr. Kirby. A major consideration in SRP’s decision to terminate Plaintiff’s employment was her history of preventable accidents.

Prior to the crane accident, Plaintiff was formally disciplined and expressly warned that any further accidents could result in termination. Plaintiff has presented no evidence of prior safety violations or preventable accidents for Mr. Kirby. Further, Plaintiff and Mr. Kirby had different responsibilities. Mr. Kirby as foreman had overall responsibility for the safe completion of the job and to oversee the work of all the members of the crew. Plaintiff’s responsibility was limited to the operation of the crane.

While the parties contest whether Plaintiff was more responsible for the accident than Mr. Kirby, Plaintiff has presented no evidence about whether SRP has ever disciplined a foreman with general responsibility more or less than an employee with specific responsibility. Accordingly, the Court will grant summary judgment in favor of SRP on the Plaintiff’s disparate treatment claim.

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