Free Response in Opposition to Motion - District Court of Arizona - Arizona

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LAW OFFICE OF ROBERT M. GREGORY, P.C. Robert Gregory, Bar No. 021805 1930 S. Alma School Road, Suite A-115 Mesa, Arizona 85210 Telephone: (480) 839-4711 Facsimile: (480) 452-1753 Attorney for Plaintiff Gregory Cox

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
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GREGORY COX, an individual, Plaintiff, vs. AMERIGAS PROPANE, INC., a Pennsylvania corporation, Defendant.

Case No. CV-04-00101-PHX-SMM PLAINTIFF'S RESPONSE TO DEFENDANT'S PARTIAL MOTION TO STRIKE PLAINTIFF'S SEPARATE STATEMENT OF FACTS IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Hon. Stephen M. McNamee)

COMES NOW the Plaintiff, Gregory Cox, by and through his undersigned counsel, and submits this Response to Defendant's Partial Motion to Strike Plaintiff's Separate Statement of Facts in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment. Plaintiff's Response is supported by the accompanying (1) Memorandum of Points and Authorities, included herewith, (2) Plaintiff's Response to Defendant's Motion for Summary Judgment, together with all exhibits attached thereto, and (3) the record developed in this matter, all of which are incorporated herein by this reference.

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MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND Plaintiff filed his Response to Defendant's Motion for Summary Judgment, and concurrently filed his Separate Statement of Facts in support of his Response ("SOF"). Plaintiff's SOF cites to various admissible sources, including: (1) public records and reports received by Plaintiff during discovery showing the existence of violations of state and federal law at Defendant's facility where Plaintiff worked, as well as other facilities of which Plaintiff had personal knowledge; (2) Plaintiff's deposition at which he testified, under oath, of his knowledge of the existence of such violations; and (3) Defendant's responses to discovery requests by Plaintiff in which Plaintiff sought disclosures by Defendant's regarding the existence of any such violations, which violations Defendant's emphatically denied, notwithstanding the documents produced evidencing the existence of such violations. II. ARGUMENT Defendant's motion to strike SOF Nos. 4-10, 13, 15, 17, 18, 24, 25, 27 and 32 is based on Defendant's contention that the allegations contained therein are unsupported by record evidence. Defendant's motion alleges that the allegations in the cited statements in Plaintiff's SOF are, alternatively, inadmissible hearsay under Federal Rule of Evidence 802, not relevant under Federal Rule of Evidence 401-402, or reliant on Plaintiff's Complaint, and therefore inadmissible. Federal Rule of Evidence 803(8) provides a hearsay exception for public records and reports, as follows: Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the
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office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Fed. R. Evid. 803(8). Plaintiff offered in his SOF several exhibits comprising public records and reports that reveal that investigations were conducted at Defendant's facility where Plaintiff worked and citations resulting from these investigations. These exhibits included a report by the Arizona Department of Public Safety, attached in Plaintiff's SOF No. 17 as Exhibit D, and notifications of penalties by the Industrial Commission of Arizona, attached in Plaintiff's SOF No. 18 as Exhibits E and F. These records and reports fall within the hearsay exception codified in Rule 803(8), and are therefore admissible documents. Moreover, these documents establish and corroborate allegations contained in Plaintiff's Complaint. Plaintiff's allegations in his SOF wherein Plaintiff cites to the Complaint also are protected under Rule 803's hearsay exceptions. For example, SOF No. 4, in which Plaintiff alleges that "On or about February 1, 2002, Plaintiff received training at Defendant's training facilities in Yuba City, California and Gardena, California (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 a POL plug (the "Plugs") (Plaintiff's First Amended
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Complaint ["Complaint"] ¶ 12; Cox Depo at 109:15-18 and 253:5-14)," is not offered by Plaintiff to establish the truth of the matter asserted but rather as a present sense impression in which Plaintiff was describing or explaining an event or condition made while Plaintiff was perceiving the event or condition. Fed R. Evid. 803(1). The same hearsay exception applies to SOF Nos. 5-10, and 13. Defendant alleges repeatedly in its Motion that Plaintiff has no evidence upon which to base Plaintiff's allegations in his SOF. Yet, Defendant, through its own admissions introduced at Plaintiff's deposition and in Defendant's Memorandum in Support of Defendant's Motion for Summary Judgment ("Memorandum"), provides sufficient evidentiary basis for the admission of the questioned Statements of Fact. For example, Defendant acknowledged the existence of the apparatus alleged in Plaintiff's SOF No. 6 through questions it posed at Plaintiff's deposition. See Deposition of Gregory Cox at 172-176. In addition, Defendant notes in its Memorandum that "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." When Defendant makes such a statement, it also incriminates itself, as Plaintiff was merely an employee and in the service of his master. Simply, Defendant's assertion is, itself, an admission by a party opponent that is not hearsay under Rule 801(d)(2). Likewise, Defendant's motion to strike SOF No. 15 is defeated by the admissions by co-employees, Mr. Richter and Mr. Ortiz, that they were responsible for the leaking cylinders and not Plaintiff, which statements were made in Plaintiff's presence, thus comprising non-hearsay admissions

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by a party opponent under Rule 801(d)(2), as well as hearsay exceptions under Rule 803(1). Defendant's motion to strike SOF No. 27 simply misrepresents the record. Defendant alleges that "Plaintiff submitted a written plan to address Glendale's leaking cylinder problem only after Mr. Artero had come to visit and after "Mr. Cornall had approached [Plaintiff] saying that he had concerns in reference to leaking cylinders."" (Deposition of Gregory Cox at 98:10-13, 99:15-19). However, the date on the written plan clearly establishes that the plan was created before Mr. Artero's visit. (Deposition of Gregory Cox at 99:9-12). Finally, evidence that would have more clearly established allegations in the SOF was requested by Plaintiff through discovery documents. In order to ascertain the verity of Defendant's contention that Plaintiff is the only employee ever disciplined by Defendant for the shipment of leaking cylinders, Plaintiff propounded in his First Request for Documents, Request No. 21, the following: "Please produce

documentation of calls to the Emergency Call Center (ECC) in reference to leaking cylinders or other safety concerns from January 1, 2002, through December 31, 2003 (SOF ¶ 30). In Defendant's Objections and Responses to Plaintiff's First Request for Production of Documents, Defendant objected on the grounds that Request No. 21 was "overbroad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence" (SOF ¶ 31). Defendant's evasion of Plaintiff's legitimate discovery requests for information, the responses to which would have at least established if any complaints had been filed for leaking cylinders over a two-year period, leaves unanswered the issue of whether Plaintiff was Defendant's first employee to ever ship leaking cylinders, and was
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therefore legitimately and non-discriminatorily disciplined by Defendant, or whether other employees of Defendant have shipped leaking cylinders but were not disciplined, and Plaintiff was therefore treated discriminatorily. Defendant has, however, through its own admission of evidence, acknowledged that leaking cylinders were, in fact, shipped from other facilities by employees of Defendant other than Plaintiff (Exhibit C of Defendants SOF; SOF ¶ 32). Assuming arguendo that Plaintiff was responsible for

the shipment of leaking cylinders, the information contained in Exhibit C of Defendant's Statement of Facts ­ that leaking cylinders were in fact shipped from other facilities ­ coupled with Defendant's contention that they are not aware of any employee other than Plaintiff being disciplined for shipping leaking cylinders, at a minimum raises the inference that Defendant discriminated against Plaintiff when he received the ultimate discipline, termination, when other offending employees apparently received no discipline at all. III. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court deny in entirety Defendant's Partial Motion to Strike Plaintiff's Separate Statement of Facts in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment. RESPECTFULLY SUBMITTED this _28th_ day of August, 2005. LAW OFFICE OF ROBERT M. GREGORY, P.C.

By: __s/ Robert M. Gregory__________________ Robert M. Gregory Attorney for Plaintiff

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ORIGINAL of the foregoing filed this _28th_ day of August 2005, with: Clerk of the Court Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street Phoenix, AZ

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing PLAINTIFF'S RESPONSE TO DEFENDANT'S PARTIAL MOTION TO STRIKE PLAINTIFF'S RESPONSES TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT was mailed this 28th day of August, 2005, to: Sandra K. Sanders STEPTOE & JOHNSON LLP 201 E. Washington, Suite 1600 Phoenix, AZ 85004-2382 Attorneys for Defendant William J. Delany MORGAN, LEWIS & BOCKIUS, LLP 1701 Market Street Philadelphia, PA 19103 Attorneys for Defendant

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___s/ Robert Gregory_________

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