Martin v. Ariz. Pub. Serv. Co.
| Decision Date | 28 January 2022 |
| Docket Number | CIV 20-0749 JB/JHR |
| Parties | THOMAS MARTIN, Plaintiff, v. ARIZONA PUBLIC SERVICE COMPANY, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Donald G. Gilpin Christopher P. Machin The Gilpin Law Firm, L.L.C. Albuquerque, New Mexico Attorneys for the Plaintiff
Douglas Lynn Ogletree, Deakins, Nash, Smoak & Stewart P.C. Phoenix, Arizona Attorneys for the Defendant
THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment, filed March 15, 2021 (Doc 22)(“MSJ”). The Court held a hearing on May 24 2021. See Clerk's Minutes at 1, filed May 24, 2021 (Doc. 38). The primary issues are: (i) whether Defendant Arizona Public Service Company (“APS”) fired Plaintiff Thomas Martin because of Martin's age; (ii) whether APS retaliated against Martin, because Martin complained that APS employees were discriminating against him on the basis of his age; (iii) whether APS fired Martin, because Martin reported workplace safety concerns; and (iv) whether Martin is entitled to back pay and front pay, because he attempted to find alternate employment. The Court concludes: (i) APS did not fire Martin because of Martin's age; (ii) APS did not retaliate against Martin for making an age-discrimination complaint; (iii) APS did not retaliate against Martin for reporting safety concerns; and (iv) Martin failed to mitigate his damages. The Court, therefore, will grant the MSJ.
This case arises from APS terminating Martin's employment on September 20, 2018. See Memorandum in Support of Defendant's Motion for Summary Judgment ¶ 53, at 9 filed March 15, 2021 (Doc. 23)(“MSJ Memo”). The Court takes it facts from the MSJ Memo; the Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment, filed April 12, 2021 (Doc. 26)(“Response”); and the Defendant's Reply to its Motion for Summary Judgment, filed May 10, 2021 (Doc. 32)(“Reply”). Most of the facts are undisputed. The Court states the undisputed material facts in the text. See Fed.R.Civ.P. 56. Facts that are disputed are specifically noted in the footnotes.
1.Background.
APS “generates, sells, and delivers electricity and energy-related products and services to customers in the southwestern United States.” MSJ Memo ¶ 1, at 1 (asserting this fact). See Declaration of Stacey Micatrotto ¶ 3, at 1, filed March 15, 2021 (Doc. 23-1)(“Micatrotto Decl.”); Response at 1 (admitting this fact). APS is one of five co-owners, but the sole operator, of the Four Corners Power Plant (“Four Corners”), a 2-unit, 1, 540 megawatt powerplant in Fruitland, New Mexico. MSJ Memo ¶ 1, at 1 (asserting this fact). See Micatrotto Declaration ¶ 3, at 1; Response at 1 (admitting this fact). APS' Performance Management Procedure sets out APS' expectations for its employees and the roles that its employees play in employee performance reviews. See MSJ Memo ¶ 3, at 1 (asserting this fact); APS Procedure: Performance Management at 11-14, filed March 15, 2021 (Doc. 23-1)(“APS Perf. Proc.”); Response at 1 (admitting this fact). Under APS' Performance Management Procedure, APS employees undergo yearly performance evaluations, where “employees' leaders rate employee performance on a scale of ‘1' to ‘5,' with ‘5' being the highest rating possible and ‘1' being the lowest.” MSJ Memo ¶ 3, at 1-2 (asserting this fact). See APS Perf. Proc. at 11-14; Response at 1 (admitting this fact). APS employees who do not meet job expectations or do not meet APS' required performance standards are subject to coaching, discipline, a Performance Improvement Plan (“PIP”), “or a combination of all three.” MSJ Memo ¶ 4, at 2 (asserting this fact). See APS Coaching, Performance Improvement Plans and Discipline Procedure at 16-20, filed March 15, 2021 (Doc. 23-1)(“APS Coaching Proc.”); Response at 1 (admitting this fact). APS may terminate employees who do not improve their behavior or job performance. See MSJ Memo ¶ 4, at 2 (asserting this fact); APS Coaching Proc. at 16-20; Response at 1 (admitting this fact).
Martin began to work at APS on January 2, 2007, as a Maintenance Technician at Four Corners. See MSJ Memo ¶ 5, at 2 (asserting this fact). See APS Dates of Hire/Termination Form for Thomas W. Martin at 22, filed March 15, 2021 (Doc. 23-1)(“Martin Hire Form”); Response at 1 (admitting this fact). APS promoted Martin to an “Instructor II position” on August 8, 2014. MSJ Memo ¶ 6, at 2 (asserting this fact). See Transcript of Deposition of Thomas Martin, taken February 10, 2021, at 27:7-25, filed March 15, 2021 (Doc. 23-1)(“Martin Depo.”); Response at 1 (admitting this fact). After Martin was promoted, Alejandro Ortiz was his supervisor, and Thomas Fore was his manager. See MSJ Memo ¶ 6, at 2 (asserting this fact); Martin Depo. at 27:7-25; Response at 1 (admitting this fact). In his new position as an Instructor II, Martin helped to train the mechanical maintenance staff at Four Corners, created training plans, worked alongside “front line employees on skills they needed for their jobs, ” and “trained operations staff.” MSJ Memo ¶ 7, at 2 (asserting this fact). See Martin Depo. at 28:21-29:25; id. at 31:3-32:1; Job Description, dated January 14, 2019, at 64-66, filed March 15, 2021 (Doc. 23-1); Response at 1 (admitting this fact).
2.The Lathe Incident.
In May, 2015, Martin instructed APS employees how to use a lathe.[1] See MSJ Memo ¶ 8, at 2 (asserting this fact); Martin Depo. at 12:11-16:22; id. at 20:19-21:7.[2] Martin knew that APS policy was that lathes could not be used without safety guards. See MSJ Memo ¶ 8, at 2 (asserting this fact); Martin Depo. at 12:11-16:22; id. at 20:19-21:7.[3] Some of the parts would not fit on the lathe, however, unless the guards were removed. See Response at 2 (asserting this fact); Martin Depo. at 11:7-25; id. at 12:1-25; id. at 13:1-25; id. at 14:1-13.[4] Martin, therefore, told his trainees that they could use the lathe without a shield if they first asked their supervisor. See MSJ Memo ¶ 9, at 2 (asserting this fact); Martin Depo. at 39:21-42:17.[5] Before Martin instructed John Gravlin on the procedures to follow before attempting to use a lathe without a guard, Gravlin used a lathe without a guard, “got caught up in the machine, ” and “almost died.” MSJ Memo ¶ 10, at 3 (asserting this fact). See Martin Depo. at 12:11-14:13 (asserting this fact).[6] APS investigated Gravlin's lathe incident immediately. See MSJ Memo ¶ 11, at 3 (asserting this fact); Martin Depo. at 37:21-39:2; id. at 39:21-42:17; Response at 2 (admitting this fact). During the investigation, Kevin Crosby, the production manager, and Kevin Keene, the maintenance manager interviewed Martin about the incident, and Martin told them that “he had instructed the trainees that lathes could be operated without a guard if they discussed it with their supervisor first.” MSJ Memo ¶ 11, at 3 (asserting this fact). See Martin Depo. at 37:21-39:2; id. at 39:21-42:17; Response at 2 (admitting this fact).
After the investigation, APS fired Gravlin and his supervisor, Scott Brady. See MSJ Memo ¶ 12, at 3 (asserting this fact); Martin Depo. at 36:16-37:6; Response at 2 (admitting this fact). Several APS leaders involved in investigating the lathe incident, including Thomas Livingston, the Plant Manager, and Crosby, wanted Martin to be fired for his “erroneous instruction.” MSJ Memo ¶ 13, at 3 (asserting this fact). See Martin Depo. at 11:3-12:10; id. at 37:21-39:2; id. At 117:20-119:25; Response at 2 (admitting this fact). Instead of firing Martin, APS placed Martin on a five-day leave and demoted him to the position of Instructor I. See MSJ Memo ¶ 14, at 3 (asserting this fact); Martin Depo. at 11:3-12:10; id. at 37:21-39:2; id. at 117:20-119:25; Response at 2 (admitting this fact).
On May 19, 2015, Alejandro Ortiz, Martin's supervisor, gave Martin an Employee Action Document, which states that Martin had not followed APS' safety standards when he told employees that they could use lathes without guards, because it created “‘the conduct of unsafe work practices by the machinist [Martin] trained.'” MSJ Memo ¶ 15, at 3 (asserting this fact)(emphasis in original)(quoting Non-Union Employee Action Document at 68, filed March 15, 2021 (Doc. 23-1)(“EAD”)). See Response at 2 (admitting this fact). The EAD also noted that APS was suspending Martin for five days, demoting him to the Instructor I position, and requiring Martin to have another APS employee review all his trainings. See MSJ Memo ¶ 16, at 3 (asserting this fact); EAD at 68; Response at 2 (admitting this fact). In 2015, Martin's overall performance score was a “‘2,' reflecting unsatisfactory performance.” MSJ Memo ¶ 17, at 4 (asserting this fact). See 2015 Annual Evaluation for Thomas Martin at 83, filed March 15, 2021 (Doc. 23-1)(“2015 Performance Rev.”); Response at 2 (admitting this fact).
3.Martin's Performance After the Lathe Incident.
Later in 2015, Christopher Susag became Martin's supervisor and Clay Goodman became Martin's manager. See MSJ Memo ¶ 18, at 4 (asserting this fact). See Declaration of Clay Goodman ¶¶ 2-3, at 86 (executed March 5, 2021), filed March 15, 2021 (Doc 23-1)(“Goodman Decl.”); Response at 2 (admitting this fact). In 2016, Martin received a “3” on his performance review, because his performance improved under Susag's supervision, so he was promoted back to Instructor II. MSJ Memo ¶ 19, at 4 (asserting this fact). See 2016 Annual Evaluation for Thomas Martin at 90, filed March 15, 2021 (Doc. 23-1)(“2016 Performance Rev.”); Response at 2 (admitting this fact). In 2017, however, Martin received more complaints about his performance. See MSJ Memo ¶ 20, at 4 (asserting this fact). See Martin Depo. at 61:1-3; 2017 Annual Evaluation for Thomas Martin at 114, filed March 15, 2021 (Doc....
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