524 F.3d 1149 (10th Cir. 2008), 06-8074, Trujillo v. PacifiCorp

Docket Nº:06-8074.
Citation:524 F.3d 1149
Party Name:William TRUJILLO; Debra Trujillo, Plaintiffs-Appellants, v. PACIFICORP, an Oregon corporation, Defendant-Appellee.
Case Date:May 07, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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524 F.3d 1149 (10th Cir. 2008)

William TRUJILLO; Debra Trujillo, Plaintiffs-Appellants,

v.

PACIFICORP, an Oregon corporation, Defendant-Appellee.

No. 06-8074.

United States Court of Appeals, Tenth Circuit.

May 7, 2008

Appeal from the United States District Court for the District of Wyoming (D.C. No. 05-CV-321-CAB)

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[Copyrighted Material Omitted]

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Sharon M. Rose of Lavery & Rose, P.C., Evanston, WY, for Plaintiffs-Appellants.

Richard D. Bush (Paul J. Hickey with him on the brief) of Hickey & Evans, LLP, Cheyenne, WY, for Defendant-Appellee.

Before TACHA, SEYMOUR, and HOLMES, Circuit Judges.

SEYMOUR, Circuit Judge.

William and Debra Trujillo brought this action against PacifiCorp claiming their employment with PacifiCorp was terminated in violation of the association clause of the Americans with Disabilities Act (ADA), 42 U.S.C. §12112(b)(4), and the Employee Retirement Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq. The district court granted PacifiCorp summary judgment on both claims. We reverse.

I

William and Debra Trujillo were employed by PacifiCorp at the Jim Bridger Power Plant in Sweetwater County, Wyoming. 1 Mr. Trujillo's tenure with PacifiCorp lasted over twenty-five years while Mrs. Trujillo was employed by the company for eight years. As employees, the Trujillos participated in the employer provided health insurance plan. The Trujillos' son, Charlie, was also covered by the plan. Charlie suffered from a brain tumor which later metastasized to his spine. The Trujillos used their available health insurance benefits to cover the treatment of their son. It is unclear from the record when it was first discovered Charlie had a brain tumor, but he suffered a relapse on May 30, 2003, and was deemed to be in the final stages of cancer. Charlie's medical care providers recommended aggressive experimental treatments to reverse the progression of the disease. Treatment began immediately. In six weeks, Charlie's medical bills exceeded $62,000. Charlie died in 2004.

PacifiCorp employees at both the local and corporate level were aware of Charlie's condition, his relapse, and his need for experimental treatment. Being a self insured company, insurance claims for Charlie's healthcare were paid directly by PacifiCorp. As with most modern businesses, healthcare costs were a concern at the local and corporate level. It was understood at the plant that a small percentage of employees with catastrophic injuries drive health care costs up. One executive commented that 90% of all healthcare costs were incurred as result of only 10% of the employees. Charlie was one of only two people with a terminal illness during the relevant time period.

Demonstrating the company's keen eye on costs, healthcare costs for each employee were factored into the plant's budget line item for labor costs. Bob Arambel, the plant manager, testified that employees were being asked to foot more of the bill for health insurance. As a result, the labor union and the company would meet

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annually to review the past year's health care claims and claims experiences, and to discuss cost sharing by increasing employee premiums. In fact, healthcare costs were of such concern that, just before Charlie's relapse, the company asked the state of Wyoming for a utility rate increase. In part, the company justified its request on significantly increased healthcare costs.

PacifiCorp designated claims of over $50,000 as high-dollar ones. Charlie's medical expenses during his relapse exceeded that figure by at least $12,000. On June 10, 2003, just eleven days after Charlie's relapse, the company began an investigation into suspected time theft by the Trujillos. The investigation resulted in the termination of the couple. The plant manager, Bob Arambel, as well as two other managers from the labor relations group, participated in the decision to terminate them.

The investigation of the Trujillos focused on time allegedly falsely reported during a planned outage. During an outage, one of the plant's turbines would undergo regularly needed maintenance. When this additional activity occurred, the normal routine of the plant changed and the employees' hours and supervisors changed. Employees worked on specialized crews and often worked overtime to complete the turbine maintenance quickly.

To record their time at the plant, the Trujillos kept time sheets, as did other employees. Because there was not a time clock requiring employees to punch in and out during a shift, supervisors verified and approved time kept based on their observations of employees during the workday. Although time sheets were supposed to be turned in and reviewed at the end of each day, supervisors did not always follow this procedure. Sometimes, employees filled out time sheets well after the dates worked. Similarly, so that time could be determined for a certain pay period, sometimes employees were asked to fill out time sheets in advance. In addition, supervisors and foremen sometimes permitted employees to leave early but record a full shift. Each supervisor had his own method of managing time sheets and the time he permitted employees to record.

Traffic and pedestrian gates are located at the perimeters of the plant. The gates were not intended as a method of keeping track of hours worked, but rather as a security measure. To access the gates, employees were required to use a personal identification card to open the gates or to sign in and out as they went through the gates. Employees often entered and exited the security gates with another employee, however, in which case only one employee would swipe their card to open the gates. This practice was known as piggybacking. Despite the gates' security purpose, their use by every employee during each entry and exit was not strictly enforced.

The investigation of the Trujillos was conducted by Larry Cundick, one of Mr. Trujillo's regular supervisors, Paul Fahlsing, Mr. Cundick's supervisor, and Rick Jones, a labor relations consultant at the plant. Mr. Cundick began the investigation after he was asked to sign Mr. Trujillo's timesheets on behalf of one of his supervisors during the outage. Although the security gates had not previously been used to verify time sheets, Mr. Cundick decided to compare Mr. Trujillo's time sheets with the security gate log's list of entries and exits. He found that for the period of May 27 through June 10, 2003, the time cards and gate logs showed discrepancies. Because Mr. and Mrs. Trujillo often carpooled to work, PacifiCorp assumed the couple would be at work at the same times. On that assumption, PacifiCorp

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also compared Mrs. Trujillo's time sheets and gate records with her husband's time sheets and gate records. Time and gate records of spouses had not been previously used to verify individual employee work hours. The comparison revealed there were times when one spouse was there and the other was not. Further discrepancies were found between Mrs. Trujillo's individual time sheets and gate logs. Thus began the investigation of both Trujillos.

Mr. Trujillo was contacted on June 10 regarding the time discrepancies revealed by the comparison of his time sheets to the security gate logs and to his wife's time sheets and gate logs. While Mr. Trujillo could explain some of the problems with his time sheets, he generally could not recall whether he was working or not during times for which he was asked to account. He informed management employees that due to his son's condition and his own mental health, he was under a severe amount of stress. Three days after the initial meeting, PacifiCorp contacted him again. During this meeting, Mr. Trujillo's mental health was discussed. 2 Mr. Trujillo disclosed that he was taking anti-depressant medications and was attempting to get additional mental healthcare but that his doctor was not available for another two weeks. No specific discussion of alleged time theft incidences is evidenced in the record.

On June 19, 2003, PacifiCorp sent Mr. Trujillo a termination letter citing a total of ten incidents of time theft. As reason for Mr. Trujillo's termination, PacifiCorp alleged Mr. Trujillo intentionally falsified time records to show that he worked 21.1 hours of regular time and six hours of overtime for the time period of April 23 through May 29, 2003.

Bob Arambel testified that the decision to terminate Mrs. Trujillo was made at approximately the same time as the decision to terminate Mr. Trujillo. Prior to the decision to terminate Mrs. Trujillo, the company had spoken with her only once regarding time sheet discrepancies. In that telephone call, while Mrs. Trujillo was attending to her son in a Denver hospital, she was asked to explain time discrepancies as far back as April 2003. She advised that she could not recall specifics, but that the gate logs did not necessarily reveal her presence or absence at the plant. 3 She explained that she often went to her vehicle during the work day to get groceries or other things, and while she used her identification card to exit the gates, she did not always use it to reenter because the gates were open or she piggybacked into the plant. On days when Mr. Trujillo left early, she occasionally would exit the gates with him to obtain something from their vehicle and then return to the plant, sometimes piggybacking then as well. When Mr. Trujillo left early, a co-worker would give her a ride home.

PacifiCorp made a follow-up call to Mrs. Trujillo on June 22. At that time, she gave the same explanation for the discrepancies: the gate logs were not necessarily reflective of the times she worked. She also recalled that she had previously turned in revised time cards to one of her supervisors. A final discussion regarding Mrs. Trujillo's time theft was held in August after she returned to work from caring

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