Free Reply to Response to Motion - District Court of Arizona - Arizona

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STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Telephone: (602) 257-5200 Facsimile: (602) 257-5299 Mark G. Kisicki (016593) Sandra K. Sanders (017472) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 William J. Delany (admitted pro hac vice) Attorneys for Defendant AmeriGas Propane, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Gregory Cox, Plaintiff, vs. AmeriGas Propane, Inc., a Pennsylvania corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 04-00101-PHX-SMM DEFENDANT' REPLY TO S PLAINTIFF' RESPONSE TO S DEFENDANT' PARTIAL S MOTION TO STRIKE PLAINTIFF' SEPARATE S STATEMENT OF FACTS Oral Argument: September 19, 2005 10:00 a.m. Courtroom 605

I.

INTRODUCTION Plaintiff' Response to Defendant' Partial Motion to Strike Plaintiff' Separate s s s

Statement of Facts in Support of his Response to Defendant' Motion for Summary s Judgment (the " Response" falls far short of rebutting Defendant' arguments for ) s striking certain SOF paragraphs. Plaintiff argues that the Court should consider

assertions from his Complaint as evidence because they allegedly fall under a hearsay exception. However, Defendant did not argue that the Complaint allegations constitute

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inadmissible hearsay, but rather that they simply do not constitute admissible evidence on summary judgment. Likewise, Plaintiff fails to specifically address Defendant' s arguments that certain SOF paragraphs are supported only by conclusory statements that are unsupported by the deposition citations referenced. Plaintiff also misrepresents the record and attempts to raise a belated discovery dispute in order to deflect attention from the deficiencies of his factual assertions. While none of Plaintiff'unsubstantiated s statements concern material facts, Plaintiff' Response reinforces that the Court should s refrain from relying on such paragraphs in its consideration of Defendant' Motion for s Summary Judgment. II. ARGUMENT Defendant moved to strike the following paragraphs, and its response to Plaintiff'opposition is listed below: s SOF No. 4: On or about February 1, 2002, Plaintiff received training at Defendant' training facilities in Yuba City, California and Gardena, California s (the " Training Facilities" where he discovered that propane gas cylinders being ), returned to the Training Facilities and to the PPX Facilities in Arizona and California did not have a protective device known as POL plug (the " Plugs" ) (Plaintiff' First Amended Complaint [" s Complaint" ¶ 12; Cox Depo at 109:15-18 ] and 253:5-14). First, Plaintiff fails entirely to respond to Defendant' argument that the s allegations of SOF No. 4 are unsupported by record evidence. Second, both Plaintiff' deposition testimony that a truck driver expressed s concern about being pulled over for the lack of POL plugs, and the allegation of Plaintiff' Complaint that transported gas cylinders did not have POL plugs constitute s inadmissible hearsay. Moreover, Plaintiff is incorrect that they are present sense

impressions that are excepted from the hearsay rule pursuant to Federal Rule of Evidence 803(1) (Resp. at 3-4). A present sense impression is " statement describing [a] or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."Fed.R.Evid. 803(1). To qualify under the present sense impression exception to the hearsay rule, an out-of-court statement must be nearly contemporaneous with the incident described and made with little chance for
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reflection. Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir.1995). Plaintiff fails to present any evidence that the truck driver' statement described an actual event or s condition of which the driver had personal knowledge, or that the statement was made contemporaneous with or immediately after the driver perceived such an event or condition. The allegation in paragraph 12 of Plaintiff' Complaint, made several s

months after Plaintiff'employment with Amerigas was terminated, may not have been s based upon his own observation of any particular event, and certainly could not have been contemporaneous with his observation of the condition of any Amerigas shipment. Accordingly, the statements are not eligible for exception from the rule prohibiting hearsay, and are inadmissible. Third, regardless of whether the statement contained in Plaintiff' Complaint s might qualify as a hearsay exception were it in the form of testimony, the bare unverified allegations of a Complaint are not admissible evidence on summary judgment. A party opposing summary judgment " may not rest upon the mere

allegations or denials of [the party' pleadings, but . . . must set forth specific facts s] showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); see Fed. R. Civ. P. 56(e) (requiring supporting affidavits that " forth such facts as would be admissible in evidence, and set that show the affiant is competent to testify to the matters stated therein" ). SOF No. 5: The Plugs prevented the escape of propane gas from storage cylinders into the atmosphere during the shipment and storage processes and provided for the safe transport of propane gas cylinders (Complaint ¶ 12). Just as with respect to SOF No. 4, Plaintiff claims that his Complaint allegation cited by SOF No. 5 is a present sense impression. For the reasons stated above, Complaint allegations do not constitute admissible evidence and SOF No. 5 should be stricken.

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SOF No. 6: While at the Training Facilities, Plaintiff also observed a process for removing excess propane gas from propane gas cylinders (the " Removal Process" which consisted of forcing propane gas into a 55-gallon drum ), filled with water, allowing the escape of large amounts of propane into the atmosphere (Complaint ¶ 13; Cox Depo at 119:10-19). Plaintiff fails entirely to respond to Defendant' argument that the allegations of s SOF No. 6 are unsupported by record evidence since Plaintiff'deposition citation does s not establish that large amounts of propane were released into the atmosphere. Just as with respect to SOF No. 4, Plaintiff claims that his Complaint allegation cited by SOF No. 6 is a present sense impression. For the reasons stated above, Complaint allegations do not constitute admissible evidence and SOF No. 6 should be stricken. Plaintiff also argues that Defendant' alleged " s admissions"in its questions during deposition and its Memorandum of Law in Support of Motion for Summary judgment support SOF No. 6 and " incriminate"Defendant (Resp. at 4). incorrect. This is

Defendant made no admissions in either its deposition questioning or The deposition testimony Plaintiff relies upon is not

Summary Judgment brief.

evidence that supports SOF No. 6. Moreover, Defendant'Memorandum, quoted by the s Response at page 4, establishes only Plaintiff' violation of Amerigas safety protocol s regarding leaking cylinders: It is undisputed that Plaintiff was responsible for storing cylinders leaking propane, a hazardous material under federal Department of Transportation regulations, at the Glendale facility in violation of Company policy and then shipping leaking cylinders in interstate commerce for 800 miles over the highway. It does not even address, let alone come close to establishing, the factual allegations contained in SOF No. 6 concerning the " Removal Process."

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SOF No. 7: On or about March 1, 2002, Plaintiff reported to his immediate supervisor, Bo Cornall, that the Plugs were not being used properly at any of the Arizona or California PPX facilities and that the Training Facilities were using the Removal Process, which Plaintiff knew were violations of state and federal law as a result of the training he had received at the Training Facilities (Complaint ¶ 14; Cox Depo at 247:8-12). Plaintiff fails entirely to respond to Defendant' argument that the allegations of s SOF No. 7 are unsupported by Plaintiff'deposition testimony cited in support thereof. s Just as with respect to SOF No. 4, Plaintiff claims that his Complaint allegation cited by SOF No. 7 is a present sense impression. For the reasons stated above, Complaint allegations do not constitute admissible evidence and SOF No. 7 should be stricken. SOF No. 8: Plaintiff was told by his supervisor that Amerigas had never had a problem with state or federal agencies concerning the non-use of Plugs and the Removal Process, and told Plaintiff not to pursue the matter (Complaint ¶ 15). Just as with respect to SOF No. 4, Plaintiff claims that his Complaint allegation cited by SOF No. 8 is a present sense impression. For the reasons stated above, Complaint allegations do not constitute admissible evidence and SOF No. 8 should be stricken. SOF No. 9: On or about July 15, 2002, Plaintiff informed his supervisor that he did not feel comfortable using a process known as " blowing bottles" which , process consisted of venting propane gas out of cylinders into the atmosphere. Plaintiff was instructed to continue blowing bottles as was customary practice at the PPX Facilities (Complaint ¶ 16; Cox Depo at 107:14 - 112:6). Plaintiff fails entirely to respond to Defendant' argument that the allegations of s SOF No. 9 are unsupported by record evidence since Plaintiff cites no evidence to support his allegation that he informed his supervisor that he did not feel comfortable using the process of blowing bottles or that " Plaintiff was instructed to continue blowing bottles as was customary practice at the PPX Facilities." Just as with respect to SOF No. 4, Plaintiff claims that his Complaint allegation cited by SOF No. 9 is a present sense impression. For the reasons stated above, Complaint allegations do not constitute admissible evidence and SOF No. 9 should be stricken.

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SOF No. 10: On or about August 1, 2002, Plaintiff informed his supervisor that a large amount of polluted and untreated run-off water at the PPX Facility in Glendale, Arizona was accumulating in a ground basin, and that the run-off water was then pumped to the fence line separating the Amerigas property from an adjacent railway spur. Plaintiff asked his supervisor if they could chemically treat the run-off water before pumping it onto the adjacent property; however, Plaintiff was told the cost of doing so was prohibitive (Complaint ¶ 17; Cox Depo at 261:24 264:1). Plaintiff fails entirely to respond to Defendant' argument that Plaintiff' record s s citations do not establish the facts set forth in SOF No. 10, and specifically, that Plaintiff has no evidence to support the following allegations: (1) that the run-off water was polluted; (2) that he ever informed his supervisor about it; or (3) that he " asked his supervisor if they could chemically treat the run-off water before pumping it onto the adjacent property; however, Plaintiff was told the cost of doing so was prohibitive." Just as with respect to SOF No. 4, Plaintiff claims that his Complaint allegation cited by SOF No. 10 is a present sense impression. For the reasons stated above, Complaint allegations do not constitute admissible evidence and SOF No. 10 should be stricken. SOF No. 13: On or about July 1, 2003, a supervisor, Lisa Gerwitz, approached Plaintiff and accused him of having written the Letter, and stated that " they had a plan to take care of that" (Complaint ¶ 25; Cox Depo at 275:3-13). Plaintiff fails entirely to respond to Defendant' argument that Plaintiff' record s s citations do not establish the facts set forth in SOF No. 13. Just as with respect to SOF No. 4, Plaintiff claims that his Complaint allegation cited by SOF No. 13 is a present sense impression. For the reasons stated above, Complaint allegations do not constitute admissible evidence and SOF No. 13 should be stricken. SOF No. 15: Two employees had informed Plaintiff' supervisor, Bo s Cornall, that they had been responsible, and not Plaintiff, for the shipping of the leaking cylinders (Cox Depo at 229:25 - 230:15). Plaintiff argues that the allegations of SOF No. 15 were statements made in Plaintiff' presence and are non-hearsay admissions under 801(d)(2) and hearsay s exceptions under 803(1). Plaintiff presents no evidence that it was within the scope of employment of the two subordinate employees to determine who is responsible for
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prevention of severe safety hazards in Amerigas operations, or that they were otherwise authorized to make admissions regarding that issue. Oki America, Inc. v. Microtech Intern., Inc., 872 F.2d 312, 314 (9th Cir. 1989) (Rule 801(d)(2) requires that the

statement at issue concern a matter within the speaker' scope of employment). s Accordingly, Federal Rule of Evidence 801(d)(2) is inapplicable, and the alleged statements remain hearsay. In addition, for the reasons set forth with regard to SOF No. 4, Plaintiff fails to establish that the statements are eligible for exception from the prohibition against hearsay pursuant to Federal Rule of Evidence 803(1) as a present sense impression. Even if such statements could be admitted under a hearsay exception, they are immaterial. It was Plaintiff ­not his two subordinate employees ­ who was ultimately responsible for the safety of the Glendale facility (Def. SOF ¶¶ 2, 5). Moreover, Plaintiff admits that he was present for, and oversaw, the collection of cylinders for shipment to Yuba City (Def. SOF ¶ 17). Plaintiff also had disregarded previous

instructions by multiple members of management to ensure that leaking propane cylinders were immediately evacuated and were not stored in the Glendale yard. Thus, regardless of what statements his subordinates made, Plaintiff cannot demonstrate pretext by suggesting that his subordinates were not disciplined. SOF No. 17: In an effort to corroborate the complaints that Plaintiff had brought to Defendant' attention during his employment, Plaintiff contacted state s and federal agencies and governments, including Arizona Department of Public Safety, Arizona Industrial Commission, Arizona Department of Transportation, Maricopa County Department of Environmental Services, and Environmental Protection Agency (Cox Depo at 302:1 - 304:4). Plaintiff argues that the public records attached to SOF No. 17 fall within Rule 803(8)' hearsay exception (Resp. at 3). It is important to note that the documents are s not certified or sworn records, as required by Federal Rule of Civil Procedure 56(e). In addition, Plaintiff failed to respond to Defendant'other arguments for striking SOF No. s 17, namely that Plaintiff' deposition testimony establishes only that he complained to s certain agencies after the termination of his employment, and there is no evidence that
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Plaintiff brought these same complaints to Defendant' attention during his s employment. The reports are irrelevant since they involve investigations and violations that occurred after Plaintiff'termination of employment. s SOF No. 18: As a result of Plaintiff' inquiries to various state and federal s agencies, he learned that Defendant had, in fact, numerous violations of state and federal laws in Arizona and California (Cox Depo at 307:1-6; see Arizona Department of Public Safety Report, attached hereto as Exhibit D; Industrial Commission of Arizona Citation and Notification of Penalty, attached hereto as Exhibits E and F). Plaintiff argues that the public records attached to SOF No. 18 fall within Rule 803(8)' hearsay exception (Resp. at 3). Again, the documents are not certified or s sworn records, as required by Federal Rule of Civil Procedure 56(e). In addition, Plaintiff failed to respond to Defendant' other arguments for striking SOF No. 18, s namely that the reports Plaintiff attaches are irrelevant since they involve investigations and violations that occurred after Plaintiff' termination of employment, and are s unauthenticated. SOF No. 24: Defendant knowingly makes hundreds of shipments of leaking cylinders every day, from facilities in Arizona and throughout the United States, which shipments are in violation of state and federal laws (Cox Depo at 90:9 100:24). Plaintiff' Response did not address Defendant' argument that the record s s citations do not establish the allegations set forth in SOF No. 24. SOF No. 25: Leaking cylinders occur as a result of numerous factors, including aging cylinders, pin-point leaks in the cylinders, faulty valves, and improper handling and/or shipment (Cox Depo at 100:11-18). Plaintiff' Response did not address Defendant' argument that the record s s citations do not establish the allegations set forth in SOF No. 24. SOF No. 27: Plaintiff had complained to Defendant about the existence of leaking cylinders and had proposed plans and procedures for addressing the problem and for training employees on proper handling (Cox Depo at 98:10 99:25). Plaintiff asserts that Defendant'Motion to Strike SOF No. 27 misrepresents the s record because Plaintiff created the plan before Mr. Artero' visit (Resp. at 5). This is s blatantly incorrect. As Defendant'SOF explained, in March 2003, Dave Artero visited s
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the Glendale facility and observed cylinders that were marked " LEAKER" them and on called Mr. Cornall, Plaintiff' supervisor about the leaking cylinders (Def. SOF ¶ 8). s Next, on March 24, Plaintiff sent an email, which Plaintiff' Response now calls s Plaintiff' " s plan"(Id. ¶ 9). This " plan"makes abundantly clear that Plaintiff was

responding to instructions from his supervisors, as it begins: As a result of Dave' call to Bo on the subject of leaking s cylinders in the Glendale service area, I have done some research and formed some preventative plans. (Id. Ex. C). Thereafter, Mr. Artero visited the Glendale facility again in April 2003 and reprimanded Plaintiff when he again observed leaking cylinders containing propane which needed to be evacuated (Id. ¶ 13). Thus, Plaintiff may have drafted his " plan" before Mr. Artero' April visit, but the record is undisputed that Plaintiff did so after s Mr. Artero' March visit. s Accordingly, it is Plaintiff ­not Defendant ­who has

misrepresented the record in this case. The record is undisputed that at no time did Plaintiff " complain" Defendant about the existence of leaking cylinder. to SOF No. 32: Defendant acknowledged that leaking cylinders were, in fact, shipped from other facilities by employees of Defendant other than Plaintiff (Cox Depo at 99:13-25). Admitting that he lacks factual support for the allegations of SOF No. 32, Plaintiff contends that " evidence that would have more clearly established allegations in the SOF was requested by Plaintiff through discovery documents" (Resp. at 5). However, AmeriGas interposed legitimate written objections to Plaintiff' overbroad s document requests, and Plaintiff never raised an issue regarding Defendant'objections. s Plaintiff' belated criticism of AmeriGas' discovery responses is untimely and s s immaterial. Nonetheless, the evidence in this case fails to raise an inference of discrimination. Plaintiff has no evidence to support his contention that other similarly situated employees were treated more favorably (See Resp. at 6). Indeed, Plaintiff' s attempt to compare the circumstances of his employment termination to that of other employees who may have inadvertently shipped an occasional cylinder of propane is
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disingenuous at best. Plaintiff was terminated for, among other things, disregarding the instructions of managers regarding an important safety issue, misrepresenting that he had addressed that safety issue, and then shipping 70 cylinders clearly marked LEAKER over 800 miles, in what Plaintiff admits was a severe safety violation. III. CONCLUSION Plaintiff'Response fails to justify the unsupported assertions of Plaintiff'SOF. s s While these do not create a material fact that would prevent summary judgment, the Court should nonetheless strike them because they are not properly before the Court on a Rule 56 motion. Accordingly, for the reasons stated above, as well as those in Defendant' Partial Motion to Strike, Defendant AmeriGas Propane, Inc. respectfully s requests that this Court strike the above-referenced paragraphs from Plaintiff'Separate s Statement of Facts in support of its Response to Defendant' Motion for Summary s Judgment.

RESPECTFULLY SUBMITTED this 2nd day of September, 2005. STEPTOE & JOHNSON LLP

By s/ Sandra K. Sanders Mark G. Kisicki Sandra K. Sanders Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 MORGAN, LEWIS & BOCKIUS LLP William J. Delany (admitted pro hac vice) 1701 Market Street Philadelphia, Pennsylvania 19103 Attorneys for Defendant AmeriGas Propane, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of September, 2005, I caused the attached document to be electronically transmitted to the Clerk' Office using the s CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrant: Robert Gregory Law Office of Robert M. Gregory, P.C. 1930 S. Alma School Road, Ste. A-115 Mesa, Arizona 85210 Attorney for Plaintiff

s/ Sandra K. Sanders