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. I. INTRODUCTION Plaintiff' Response to Defendant' Motion for Summary Judgment (the s s " Opposition" fails to raise any material issue of fact concerning Plaintiff'employment ) s termination. Significantly, Plaintiff does not dispute that he oversaw the collection and shipment of 70 propane cylinders that were clearly marked " LEAKER" were seeping and propane into the atmosphere. Plaintiff also does not dispute the significant safety risk presented by the shipment of leaking cylinders over 800 miles in interstate transport. Furthermore, it remains undisputed that Plaintiff had been directed repeatedly by AmeriGas managers, including safety managers, to cease storing leaking cylinders at the
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No. CIV 04-00101-PHX-SMM DEFENDANT' REPLY TO S PLAINTIFF' RESPONSE TO S DEFENDANT' MOTION FOR S SUMMARY JUDGMENT (Oral Argument Requested)

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Glendale facility, and that Plaintiff' disregard of those instructions led to the unsafe s shipment. In other words, the circumstances that resulted in Plaintiff' employment s termination are undisputed. Unable to attack the basis for his termination, Plaintiff attempts to prove pretext by relying exclusively on self-serving, unsupported allegations and immaterial facts. For this reason alone, the Court should grant judgment in favor of AmeriGas. Plaintiff also attempts, at the eleventh hour, to concoct a complaint concerning a violation of Arizona law. However, given Plaintiff' admissions, and the express s

language of the complaint letter on which Plaintiff exclusively relies, Plaintiff cannot establish a prima facie case of retaliation. Accordingly, Defendant submits this Reply Memorandum to address Plaintiff' inaccurate representation of the record, and to s address the insufficiency of Plaintiff'claim. s II. PLAINTIFF HAS FAILED TO DEMONSTRATE THAT AMERIGAS' S ARTICULATED REASON FOR HIS EMPLOYMENT TERMINATION WAS A PRETEXT FOR RETALIATION. Plaintiff does not offer any evidence to dispute the facts that led to his employment termination. Thus, the following are uncontested facts:


Plaintiff' supervisors had specifically and repeatedly reprimanded him s about the storage of leaking cylinders at the Glendale yard and reminded him of the tremendous safety risks associated with failing to evacuate propane from leaking cylinders (Def. SOF ¶¶ 8, 9, 13, 14); Plaintiff promised to remedy the situation (Def. SOF ¶¶ 9-11, 15); Despite Plaintiff' assurances, Plaintiff allowed cylinders clearly marked s " LEAKER" sit in the Glendale yard for many months (Def. SOF ¶¶ 19to 21); Thereafter, Plaintiff oversaw the preparation and shipment of a load of propane cylinders that included 70 leaking propane cylinders for travel 800 miles in interstate transport (Def. SOF ¶¶ 17, 18); Plaintiff' failure to perform his duties created safety risks and created s unnecessary legal and reputational risks for AmeriGas ((Def. SOF ¶¶ 7, 25, 29; Mot. at 8-11).







Because Plaintiff cannot dispute any of the material facts that led to his employment termination, he relies exclusively upon self-serving assumptions and
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immaterial details in an effort to prove pretext. In a self-serving fashion, and without any evidentiary support, Plaintiff claims that AmeriGas " knowingly makes hundreds of shipments every day" with leaking cylinders, but " justifie[s this] as an acceptable risk of doing business"(Opp. at 10). Although Plaintiff cites to his deposition testimony, no support for this contention can be found therein. Plaintiff also attempts to create the impression that he was treated less favorably than other employees (Opp. at 11). In support thereof, Plaintiff relies on AmeriGas' s interrogatory response, in which it indicated that no other employee was disciplined for having shipped leaking propane cylinders (Opp. at 11-12). Plaintiff, however, has no evidence to support his contention that other similarly situated employees were treated more favorably. Indeed, Plaintiff' attempt to compare the circumstances of his s

employment termination to that of other employees who may have inadvertently shipped an occasional cylinder of propane is 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 (Def. SOF ¶¶ 29-32) . Thus, Plaintiff has failed to demonstrate pretext.1 Plaintiff also claims pretext because his subordinates allegedly acknowledged to management that they had sent the shipment to Yuba City, and informed Mr. Cornall that Plaintiff had trained them not to store leaking cylinders (Pl. SOF ¶ 15; Opp. at 9).2 Even if this hearsay evidence is accepted as true, it was Plaintiff, not his two subordinate

1

Incredibly, Plaintiff asks the Court to draw a negative inference from AmeriGas' s written objections to Plaintiff' overbroad document requests (Opp. at 12). Plaintiff' s s belated criticism of AmeriGas'discovery responses is untimely and immaterial. s
2

While AmeriGas moved to strike Pl. SOF ¶ 15 on the grounds that it relies only on Plaintiff' deposition testimony consisting of inadmissible hearsay, the subordinates' s statements are nonetheless immaterial since, even assuming they were made, Plaintiff cannot show pretext.
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employees, who was ultimately responsible for the safety of the facility (Def. SOF ¶¶ 2, 5). It was also Plaintiff, not his subordinate employees, who 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 (Def. SOF ¶¶ 8, 9, 13, 14). Moreover, Plaintiff admits that he was present for, and oversaw, the collection of cylinders for shipment to Yuba City (Def. SOF ¶ 17). Accordingly, Plaintiff cannot demonstrate pretext by suggesting that his subordinates were not disciplined, but that his employment was terminated. Left with nothing else to support his claim, Plaintiff falls back on a " conspiracy" theory. He argues that the Court should deny summary judgment because Plaintiff' s supervisor, Bo Cornall, requested an offsite meeting with Plaintiff on the day that the leaking cylinder shipment left Glendale, suggesting that Mr. Cornall set him up (Opp. at 9). There is no evidentiary support for such scandalous allegations. Indeed, there is no evidence that Mr. Cornall was even aware that leaking cylinders were in the yard (since Plaintiff admittedly led Mr. Cornwall to believe they had been removed), let alone that Plaintiff was including these cylinders in a shipment to Yuba City (See Mot. at 12). Accordingly, the Court should grant judgment in favor of AmeriGas because it terminated Plaintiff' employment for an egregious safety violation, and Plaintiff has s failed to prove that the decision was a pretext for retaliation. III. PLAINTIFF HAS FAILED TO PROVE THAT HE ENGAGED IN PROTECTED ACTIVITY UNDER THE STATUTE. Plaintiff has offered no evidence to support his contention that he complained of a violation of Arizona statutes or laws to support his retaliation claim. The evidence, and Plaintiff'own admissions, simply do not support his claim. s A. The Anonymous Letter Does Not Constitute Protected Activity.

In the face of AmeriGas' argument that Plaintiff' anonymous letter (the s s " Letter" did not constitute protected activity for purposes of the Arizona Employment ) Protection Act, (see Motion at 7-8), Plaintiff now tries to characterize the Letter as being
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" purposely vague," somehow " yet expressing concerns" constitute protected activity that (Opp. at 6). Plaintiff' current efforts to re-cast the Letter are unavailing, as the Letter s speaks for itself (Def. SOF ¶ 38, Ex. L). The three-page single-spaced Letter was the favoritism and

narrowly focused with painstaking detail on a single topic:

mismanagement allegedly perpetuated by Lisa Gerwitz, a manager in the other AmeriGas division housed at Glendale, for which Plaintiff had no responsibility (Id.). The Letter makes no reference to any of the topics about which Plaintiff now alleges he complained over a fourteen month period, such as the practice of " blowing bottles"or the lack of POL plugs (Id.). In fact, there is not even a vague reference to any concerns about state law violations, as would be required for the Letter to constitute protected activity under the statute. Galati v. Am. West Airlines, Inc., 205 Ariz. 290, 294 (Ct. App. 2003) (complaint must regard a violation of the Arizona Constitution or an Arizona State statute to comprise protected activity). In short, the Letter does not constitute protected activity. B. Plaintiff Cannot Rely On Other Alleged Complaints Since He Claims He Was Retaliated Against Only After He Authored the Anonymous Letter.

Recognizing that the Letter does not constitute protected activity under the statute, Plaintiff now tries to claim that the Letter was one in a string of internal complaints he lodged (Opp. at 6). While Plaintiff lacks any evidence other than his own self-serving accusations that he made such complaints, such complaints are irrelevant given Plaintiff' own admission.3 s Plaintiff testified that it was not until he wrote the

anonymous Letter and elevated a complaint beyond Mr. Cornall that he was retaliated against (Cox Dep. 273-74, Def. Mot. Ex. A). The Letter did not raise complaints of violations of Arizona state laws or statutes. Indeed, Plaintiff cannot dispute that he failed to mention any violations of Arizona law even when he met with Janelle Burns of
3

While AmeriGas moved to strike Pl. SOF ¶¶ 7-11 on the grounds that they rely only on Plaintiff'self-serving accusations and his Complaint, unsupported by deposition s testimony, his complaints, even assuming they were made, are nonetheless immaterial for the reasons stated below.
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Human Resources while she was interviewing Plaintiff in connection with her investigation of the Letter (Def. SOF ¶ 39). Accordingly, Plaintiff cannot now elect to rely on these other alleged complaints. 4 C. There Is No Evidence Whatsoever That Plaintiff Ever Complained About Leaking Cylinders.

Plaintiff also attempts to create the erroneous impression that he was terminated for having complained about leaking cylinders (Opp. at 10-11). The record does not support Plaintiff' contention. s Plaintiff' own deposition testimony, which he s

purportedly relies upon to support this contention (Pl. SOF ¶ 27), makes abundantly clear that Plaintiff submitted a written plan to confront Glendale' leaking cylinder problem s only after Mr. Artero had come to visit and after " Cornall had approached me saying Mr. that he had concerns in reference to leaking cylinders"(Pl. Dep. 98:10-13, 99:15-19). Thus, Plaintiff' memorandum was a response to his supervisors' s concerns and not a complaint about leaking cylinders. IV. EVEN IF THE ANONYMOUS LETTER CONSTITUTED PROTECTED ACTIVITY, PLAINTIFF HAS NO EVIDENCE OF A CAUSAL CONNECTION BETWEEN IT AND HIS EMPLOYMENT TERMINATION. Plaintiff contends that he can prove a causal connection between his termination and the anonymous Letter, because nine days after he wrote the Letter, Lisa Gerwitz, about whom the Letter complained, accused him of writing the Letter and stated that " had a plan to take care of that" they (Opp. at 7, 9). Plaintiff'accusation is unsupported s by any record evidence. Plaintiff' deposition testimony, on which he purports to rely, s established only that Ms. Gerwitz suggested that she thought Plaintiff authored the letter; it included no hint of any alleged threat (Pl. SOF ¶ 13; see Pl. Dep. 275:3-13) .

4

Plaintiff also attempts to highlight minor citations and state law violations found against AmeriGas years after Plaintiff'employment termination (Opp. at 7). Any alleged s violations Plaintiff brought to the attention of state or local agencies after his employment termination cannot possibly be considered protected activity for purposes of his employment termination and are entirely irrelevant to this lawsuit.
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Nonetheless, even if Plaintiff' evidence supported such a contention, it s nonetheless fails to create an issue of material fact. Plaintiff has offered no evidence to demonstrate that Ms. Gerwitz was involved in the decision to terminate his employment. Indeed, all record evidence is to the contrary. Dave Artero, AmeriGas Western Region Safety Manager, and Ed Ferguson, PPX Nationwide Safety and Engineering Manager, each recommended that the Company terminate Plaintiff'employment (Def. SOF ¶ 27). s Bo Cornall, in consultation with James Lahey and Human Resources, determined that Plaintiff' egregious disregard of AmeriGas' safety protocols, and past performance s s problems, warranted his termination of employment (Def. SOF ¶¶ 29-32). Thus, the statement that Plaintiff attributes to Ms. Gerwitz is, at most, a stray remark from a nondecisionmaker, and it is insufficient to withstand Defendant' Motion for summary s judgment. See Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir. 2005) (granting summary judgment because " [s]tray remarks not acted upon or communicated to a decision maker are insufficient to establish pretext" Nidds v. Schindler Elevator ); Corp., 113 F.3d 912, 919 (9th Cir. 1996) (holding that a supervisor' comment that he s intended to get rid of all the " timers" old was insufficient to defeat summary judgment because " comment was not tied directly to [the] layoff." the ). Plaintiff also points to a timeline of events leading to his termination as evidence of a causal connection to his alleged protected activity, inferring that the written disciplinary warnings he received are evidence of retaliation (Opp. at 8). These warnings should not prevent summary judgment, because Plaintiff has set forth no evidence to dispute the facts underlying these instances of poor performance. Rather than evidencing retaliation, Plaintiff' prior performance problems reinforce the Company' decision to s s terminate his employment, given his repeated and flagrant disregard for his supervisors' instructions. V. CONCLUSION Plaintiff is unable to dispute the facts that formed the basis of his employment termination. Moreover, he is unable to prove that he engaged in protected activity under
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Arizona Statute Section 23-1501(3)(c)(ii) that had a causal connection to his employment termination. Accordingly, for the forgoing reasons, and those set forth in AmeriGas' Memorandum of Law in Support of Summary Judgment, Defendant AmeriGas Propane, Inc. respectfully requests that this Court grant its Motion for Summary Judgment and enter judgment in its favor. RESPECTFULLY SUBMITTED this 16th day of August, 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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Case 2:04-cv-00101-SMM

CERTIFICATE OF SERVICE I hereby certify that on the 16th day of August, 2005, I caused the attached document to be electronically transmitted to the Clerk' Office using the CM/ECF s 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

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