Free Trial Brief - District Court of Arizona - Arizona

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Mary H. Beard Admitted Pro Hac Vice FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, TN 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, P.C. Lori A. Higuera (No. 017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendant Federal Express Corporation

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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SEAN L. HARGROW,
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No. 03-0642 PHX DGC

Plaintiff,
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v.
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FENNEMORE CRAIG, P.C.
P H O E N IX

DEFENDANT'S TRIAL BRIEF

FEDERAL EXPRESS CORPORATION, a Delaware corporation; JOHN and JANE DOES IX; BLACK CORPORATION I-X; WHITE LIMITED LIABILITY COMPANIES I-X, Defendants. Defendant Federal Express Corporation, by and through counsel, hereby submits its Trial Brief regarding the disputed issues of law:

Case 2:03-cv-00642-DGC

Document 147

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I. FACTS In October 1996, FedEx hired Plaintiff as a handler at its Scottsdale, Arizona station and later promoted him to the position of permanent part-time courier. A courier picks up and delivers packages and must have the ability to lift 75 pound, maneuver packages of any weight above 75 pounds with appropriate equipment and/or assistance from another person, to stand to load and unload aircraft, containers and company vehicles, and to operate equipment.

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On or about April 4, 2002, Plaintiff suffered an injury to his right ankle while working and was placed on workers' compensation leave. If an employee is entitled to leave under the Family Medical and Leave Act (FMLA), the FMLA leave will run concurrently with the workers' compensation leave. In 2002 and 2003, Cheryl

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Montgomery Wilson was the Human Capital Management Program (HCMP) manager who administered Plaintiff's leave of absence and benefits after his April 2002 injury. On April 10, 2002, Ms. Montgomery informed Plaintiff, by letter, about the Medical Leave of Absence policy and guidelines and informing Plaintiff, in part, that the

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company would hold a position open for him for a period of 90 days. Under FedEx's Medical Leave of Absence policy, Plaintiff was entitled to a medical leave of absence for up to 365 days, which would include any time spent in Temporary Return to Work (TRW) status.

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P H O E N IX

Shortly after his injury, FedEx placed Plaintiff on TRW status for 3 months, which was the maximum allowed under FedEx's policy. TRW status is not an assignment to a

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vacant permanent position, but is offered to an employee with temporary medical restrictions to work 20 hours per week. While on TRW status, Plaintiff's doctor restricted his activities to no heavy lifting, long periods of standing, or driving as a courier. In August 2002, Plaintiff had exhausted all of his TRW leave and FMLA leave, and was not able to return to work. As a result, his position could be eliminated or filled by Mr. McHugh, his former senior manager. Mr. McHugh filled the position. In a letter dated August 6, 2002, Ms. Montgomery notified Plaintiff of the expiration of his FMLA leave

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and informed him that he would report to her as his new manager and he was not terminated. According to the Leave of Absence Policy, Ms. Montgomery would send employees a letter 90 days prior to the expiration of leave in which she would explain to

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the employee that he/she had 90 days to search for jobs at FedEx within their medical restrictions (the "90-day letter"). Employees on medical leave must apply for positions

just like other internal employees. However, during the 90-days prior to the expiration of their leave, they are provided with certain preferences, including (1) the HCMP manager

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sends them a weekly list and description of job openings within FedEx (known as JCATs), (2) they have unlimited opportunities to test for a job and to submit job applications, whereas internal employees are limited to only two applications, (3) they are provided a referral to Life Works, which is a benefit by an organization that provides career

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P H O E N IX

counseling, and (4) they receive preferential placement over other employees.

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On January 13, 2003, Cheryl Montgomery mailed Plaintiff a 90-day letter, informing him that his leave of absence would expire on April 12, 2003, and that his employment would be terminated if he could not locate a position with FedEx prior to the expiration of his leave. The letter also described the assistance that was available to him in order to locate a job within FedEx. Each Friday, in order to assist Plaintiff in finding a job within FedEx, Ms. Montgomery would send Plaintiff the JCATs that were available throughout FedEx nationwide and looked for jobs within his medical restrictions. During

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the months prior to the expiration of his leave, Ms. Montgomery discussed possible positions that were available (i.e., service agent, call center, and dangerous goods position) with Plaintiff and sought guidance about his medical restrictions from Plaintiff and his workers' compensation case nurse. Plaintiff did not qualify for the positions that were

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available. Plaintiff could not perform all of the duties of the Service Agent position due to the standing and lifting requirements. When Plaintiff inquired about a position in the call center, Ms. Montgomery informed him that he would need to pass a typing test of 25 words

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per minute. However, at this time, there were no postings or openings for a call center position. Ms. Montgomery, however, instructed Plaintiff to take the typing test in case a position became open and informed Plaintiff that although the training class had not yet started, the class was full. FedEx had a training class for call center employees that began

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P H O E N IX

on March 31, 2003. At the time the training class began on March 31, 2003, Plaintiff had not completed the application process nor had he passed the required typing test.

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Plaintiff initially took the typing test on March 26, 2003 but did not pass the test until April 1, 2003 and then the posting was closed. As such, Plaintiff did not apply for any positions at all during his medical leave. Although his leave was set to expire on April 12, 2003, Ms. Montgomery requested a 30-day extension from FedEx because Plaintiff's doctor indicated that Plaintiff's condition might improve with an additional 30-days of therapy. Plaintiff's request was granted, although all other prior extension requests by Ms. Montgomery for other employees had been denied.

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During the 30-day extension, Ms. Montgomery continued looking for positions within Plaintiff's then-current medical restrictions; however, due to Plaintiff's restrictions involving long periods of standing or walking, Plaintiff was not qualified for the position. At the end of the 30-day extension, Plaintiff's doctor had not released him to full

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duty and Plaintiff was still under restrictions from standing for more than 2 hours at a time, driving, and heavy lifting restricted to 30-40 pounds. As such, he could not perform the duties of courier as of March 12, 2003. Thus, on May 12, 2003, pursuant to the application of FedEx's leave policy, Ms.

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Montgomery informed Plaintiff that his employment had been terminated because he had not been released to return to work as a courier and had not secured other employment with FedEx prior to the expiration of his leave. Ms. Montgomery made the decision to

terminate Plaintiff's employment pursuant to the company's leave policy and she received
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the concurrence of Ms. Roxanne Ruiz and Mr. Tim Kelly.

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II.

LAW AND ARGUMENT To establish a claim for retaliation under Title VII of the Civil Rights Act of 1964

("Title VII") 42 U.S.C. § 2000e et seq., as amended or 42 U.S.C. § 1981, a plaintiff must demonstrate that (1) he engaged in a protected activity, (2) that he was subjected to an adverse employment action, and (3) "'a causal link exists between the protected activity and the adverse action.'" Manatt v. Bank of America, NA, 339 F.3d 792, 800 (quoting Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). In order to establish causation, Plaintiff must show that engaging in the protected activity was one of the reasons for the adverse action and that, but for such activity, the action would not have been taken. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). If Plaintiff establishes a prima facie case, the burden of production shifts to Defendant to articulated a

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legitimate, nondiscriminatory reason for its allegedly discriminatory conduct. Manatt, 339 F.3d at 800. To show a casual link between the protected activity and retaliation, evidence that the employer knew Plaintiff had engaged in protected activity is essential. Foraker v. Apollo Group, Inc., 427 F. Supp. 2d 936, 944 (D. Ariz. 2006). Once

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Defendant articulates its reason, the burden of production shifts back to Plaintiff to demonstrate that Defendant's reason is pretext for retaliation; i.e., that retaliation more likely motivated the employer or that the employer's explanation is unworthy of credence. Vasquez v. County of Los Angeles, 349 F.3d at , 634, 641 and n. 13 (9th Cir 2004). In the instant case, Plaintiff engaged in protected activity of filing his federal lawsuit on April 4, 2003. The only adverse employment action at issue is Plaintiff's

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discharge on May 12, 2003. As for the third case of action, Plaintiff cannot establish a casual link or pretext by the fact that Defendant discharged Plaintiff about a month after he filed his first Complaint. There is no evidence of any retaliatory animus on the part of the decision maker, Ms. Montgomery Wilson, as she lacked knowledge of Plaintiff's filing of his federal lawsuit at the time she made the decision to discharge. Further, there is no evidence that Defendant had been served with the Complaint at the time of his discharge. See Clark County v. Breeden, 532 U.S.268, 273 (noting that the decision-

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maker's knowledge of protected activity is relevant as to retaliation claim); Cohen v. Fred Meyer, Inc., 686 F. 2d 793, 796-97 (9th Cir. 1982) (finding the employer's knowledge that plaintiff engaged in protected activity essential to establishing a causal link for retaliation).

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FedEx has offered a legitimate, nondiscriminatory reason for Plaintiff's discharge: at the time his medical leave had expired, Plaintiff had failed to obtain any open, available position for which he was qualified. Plaintiff's discharge resulted from the application of an universally-applied leave policy, and not because of any protected activity with respect

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to his federal lawsuit. See McAlindin v. County of San Diego, 192 F.3d 1226, 1239 (9th Cir. 1999) (finding no retaliation where County applied universal leave policy and employee was not specifically targeted for any protected activities). Defendant discharged Plaintiff because upon the expiration of his medical leave, including the 30-day extension

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of the leave provided by FedEx, he had failed to secure a position for which he was qualified.

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Moreover, this Court has recognized that the role of the Court in a retaliation case is not to question the wisdom of the employer's internal policies and judge whether the employer's actions were wise or well-considered. Green v. Mariopa County Comm. College Sch. Dist., 265 F. Supp. 2d 1128 (D. Ariz. 2003)(citations omitted). Rather, the focus is whether or not the employer had an honest belief in the reasons for its actions. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (citations omitted); Green, 265 F. Supp. 2d at 1128 (citations omitted). There is no evidence that

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FedEx did not honestly believe that Plaintiff could not return to his position as courier failed to find another position based on his medical restrictions at that time. Further, Plaintiff does not know of any other employees whose employment was not terminated even though they could not return to work and had not secured other employment with

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FedEx prior to the expiration of their leave. Similarly, Plaintiff was notified in January 2003 that his leave would expire in April 2003 and that his employment would be terminated if he did not obtain a position before the expiration of his leave. The letter informed Plaintiff that he could submit

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unlimited job applications, he could have unlimited testing, and would receive placement preference for any lateral or lower level position. Further, rather than Defendant's

conduct, Plaintiff's own conduct of not taking the typing test in a timely manner and failing to apply for any position contributed to his failure to receive a position before the

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expiration of his leave and thus resulted in any alleged damages that he may have suffered.

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Regarding Plaintiff's claim for punitive damages, he claims that Kevin McHugh, Bob Gammon, and Tim Christensen had ill-will for him. Plaintiff lacks any evidence whatsoever that any of these individuals had any involvement in his discharge. He also claims that Cheryl Montgomery, Roxanne Ruiz, and Tim Kelly had ill-will towards him, yet again he lacks evidence that any of them had knowledge that he had filed a lawsuit prior to his discharge. Additionally, Plaintiff was granted an extension of time during his medical leave of absence, an extension not previously granted to other employees. As

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such, he cannot show any malice or indifference on the part of Defendant and thus, he is not entitled to punitive damages. CONCLUSION WHEREFORE, based on the foregoing, FedEx is not liable to Plaintiff as to his

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FENNEMORE CRAIG, P.C.
P H O E N IX

claim of retaliation. DATED this 1st day of November, 2006. Respectfully submitted,

By /s/ Mary Beard /Mary Beard FEDERAL EXPRESS CORPORATION and Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation

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