Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Abbott Laboratories, Division, Defendant. Ross vs. Carmon E. Rudolph, Plaintiff, ) ) ) ) ) ) ) Product) ) ) ) ) ) No. CV 03-1419-PHX-JAT ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Pending before the Court is Defendant's Motion for Summary Judgment (Doc. # 34). Plaintiff responded and Defendant replied. Defendant moves for summary judgment on the basis that Plaintiff has failed to make a prima facie case of race discrimination and that any claim under the Americans With Disabilities Act ("ADA") is barred because Plaintiff failed to exhaust her administrative remedies in filing a claim with the Equal Employment Opportunity Commission. Additionally, to the extent Plaintiff seeks damages for a back injury she allegedly suffered on the job, Defendant moves for summary judgment on the basis that such claim should have been submitted to Arizona's worker's compensation system. For the following reasons, Defendant's motion is granted. Defendant terminated Plaintiff on October 1, 2002 after nearly three years of reprimands for tardiness, excess absenteeism, sleeping during her shift, leaving her assigned work area and operator errors. Defendant submits as evidence a multitude of write-ups, work improvement plans and other warnings given to Plaintiff over the years. Plaintiff claims she
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was terminated because of her race, African-American, and because she suffered a back injury that made it difficult for her to complete her work tasks. Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, summary judgment is mandated, "...against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmovant to establish the existence of material fact. Id. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. Plaintiff brings a claim under Title VII of the Civil Rights Act of 1964, which prohibits employer discrimination on the basis of race. 42 U.S.C. § 2000e-2(a)(1).1 Under McDonnell Douglas, a complainant alleging disparate treatment under Title VII must first establish a prima facie case of discrimination. Chuang v. University of California Davis, Board of Trustees, 225 F.3d 1115 (9th Cir. 2000)(citing McDonnell Douglas Corp. v. Green, To the extent Plaintiff is claiming discrimination under 42 U.S.C. § 1981, such analysis is the same under Title VII. Fonseca v. Sysco Food Services of Arizona, 374 F.3d 840, 850 (9th Cir. 2004). -2Case 2:03-cv-01419-JAT Document 43 Filed 08/02/2005 Page 2 of 4
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411 U.S. 792, 802 (1973)). Specifically, Plaintiff must show that: (1) she belongs to a protected class; (2) she was subject to an adverse employment action; and (3) similarly situated individuals outside her protected call were treated more favorably. Id. The Court finds that Plaintiff has failed to establish a prima facie case of discrimination because she has failed to set forth any evidence, outside of her general vague allegations, that similarly situated employees outside her protected class were treated differently. Plaintiff's response to Defendant's motion for summary judgment deals almost exclusively with the alleged back injury she suffered. She sets forth no facts to support a finding that other employees were treated differently. The Defendant points to a vague reference Plaintiff made to another employee in deposition who also allegedly slept during breaks and was not disciplined. Defendant has presented evidence, however, that that employee was reprimanded on several occasions for poor attendance and deficient performance and ultimately terminated. Alternatively, the Court finds that Defendant has submitted sufficient evidence of a legitimate, nondiscriminatory reason for terminating Plaintiff and that Plaintiff has failed to provide any evidence that such reason is a pretext for discrimination. Chuang, 225 F.3d at 1123; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Plaintiff received numerous verbal and at least nine written warnings that her tardiness, excessive absenteeism, sleeping during her shift, and leaving her assigned work area were putting her job in jeopardy. The warnings are from different managers as Defendant transferred Plaintiff on several different occasions to accommodate Plaintiff's work skills, complaints about her back and schedule requests. Considering the entire record, the Court finds Plaintiff offers no evidence of pretext. As to Plaintiff's claim under the ADA, the Court finds that this claim exceeds the scope of the charge she brought before the EEOC. "The scope of a civil action alleging [employment] discrimination is limited by the charge filed with the EEOC." Albano v. Schering-Plough Corp., 912 F.2d 384, 386 (9th Cir. 1990) This Court may consider, "any charges of discrimination that are like or reasonably related to the allegations made in the -3Case 2:03-cv-01419-JAT Document 43 Filed 08/02/2005 Page 3 of 4

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EEOC charge, or that fall within the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Deppe v. United Airlines, 217 F.3d 1262, 1267 (9th Cir. 2000) (internal quotations and citations omitted). Plaintiff's charge with the EEOC is only for discrimination based on race. Plaintiff makes no mention of any failure to accommodate her back injury. Accordingly, summary judgment on this issue is appropriate.2 Plaintiff also makes a claim for emotional distress. To the extent Plaintiff is seeking recovery for intentional infliction of emotional distress, the Court finds dismissal appropriate. Plaintiff has failed to show that Defendant's conduct "was so extreme in degree, as to go beyond all possible bounds of decency, and be regarded as atrocious and utterly intolerable in a civilized community." Mintz v. Bell Sys., Inc., 905 P.2d 563 (Ariz.App. 1995). Finally, it appears that Plaintiff is seeking compensation for a back injury she allegedly suffered on the job. In her opposition, she states that "because of my injury, I am unable to hold a job. Abbott Should be responsable (sic) for that." The Court agrees with Defendant that any claim Plaintiff has for an injury suffered on the job is pre-empted by Worker's Compensation. Ariz. Rev. Stat. § 23-1022(A). Accordingly, IT IS ORDERED that Defendant's Motion for Summary Judgment (Doc. # 34) is GRANTED; IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in favor of Defendant and against Plaintiff. DATED this 1st day of August, 2005.

To the extent any of Plaintiff's claims can be construed as being brought under the Arizona Civil Rights Act, the Court finds that Plaintiff failed to exhaust her administrative remedies as required by Ariz. Rev. Stat. § 41-1481. -4Case 2:03-cv-01419-JAT Document 43 Filed 08/02/2005 Page 4 of 4

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