Ortega v. San Juan Coal Co.

Decision Date03 October 2013
Docket NumberCiv. No. 12-CV-0501 MV/RHS
PartiesNINO NATHANIEL ORTEGA, Plaintiff, v. SAN JUAN COAL COMPANY, a Delaware Corporation, Defendant.
CourtU.S. District Court — District of New Mexico

THIS MATTER comes before the Court on the Defendant San Juan Coal Company's ("Defendant") Motion for Summary Judgment and Supporting Brief, filed February 21, 2013 (Doc. 27) ("Motion for Summary Judgment"). The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the Motion for Summary Judgment is not well taken and will be denied.

I. Procedural Background.

On May 10, 2012, the plaintiff Nino Nathaniel Ortega ("Plaintiff") filed a Complaint for Violations of the Family and Medical Leave Act of 1993 ("FMLA") (Doc. 1), 29 U.S.C. § 2601 et seq., alleging that the Court exercises federal question jurisdiction over the Complaint pursuant to 28 U.S.C. Section 1331, and asserting that the Defendant violated the FMLA when it failed to approve his request for leave and terminated his employment. On July 18, 2012, the Plaintiff filed his First Amended Complaint for Violations of the Family and Medical Leave Act of 1993 (Doc. 9) ("Amended Complaint"). The Defendant filed its Motion for Summary Judgment onFebruary 21, 2013, seeking judgment as a matter of law in its favor on the FMLA claims.

II. Factual Background.1

The Plaintiff was employed by the Defendant for a period of nine years. See Am. Compl. ¶ 7. On March 7, 2009, the Plaintiff suffered a workplace back injury, for which he underwent surgery on September 28, 2009. See id. ¶¶ 8, 9; Resp. to Mot. for Summ. J. ("Resp."), Exh. 1, Arbitration Transcript ("Tr.") at 303:4 (Ortega). The surgery prevented the Plaintiff from working until June 20, 2010. See id.; Am. Comp. ¶¶ 8, 9. When the Plaintiff returned to work on June 21, 2010, he was suffering from "severe migraines and numbness down [his] arms into [his] hands and pain in [his] neck area." Tr. at 304:10-11 (Ortega).

On June 15, 2010, the Plaintiff and the Defendant entered into the Transitional Duty Agreement ("TDA"), to become effective June 21, 2010, which assigned the Plaintiff to work in the Safety Department, see Mot. for Summ. J., Exh. 4, performing routine clerical work in Dawn Villallobos's office, see Tr. at 304:1-5 (Ortega). The TDA provided that the Plaintiff's work schedule would be "flexible, 4 hrs per day" and that "[s]chedule changes are to be discussed with Robin Irwin." Id. The TDA identified Robin Irwin as "Supervisor." Mot. for Summ. J. Exh. 4. On June 30, 2010, the parties modified the TDA ("Modified TDA") to increase the number of hours the Plaintiff could work each day to four to six hours per day. See Mot. for Summ. J., Exh. 5. Both the TDA and Modified TDA provide that the "[e]mployee is limited to [the prescribed] hrs per day as tolerated." Mot. for Summ. J., Exhs. 4, 5. These limitations were determined based upon recommendations provided by the Plaintiff's physician. See Tr. at 88:21-25, 89:1-16 (Jones); Resp., Exh. 4. The TDA and Modified TDA did not release the Plaintiff from therequirements set forth in the Defendant's policy regarding attendance ("Attendance Policy"). See Mot. for Summ. J., Exhs. 4, 5.

The Collective Bargaining Agreement between the Defendant and the International Union of Operating Engineers, Local 953 ("Union") incorporates the Defendant's Attendance Policy. See Mot. for Summ. J., Exh. 3, Agr. Between San Juan Coal Co. and Int'l Union of Operating Engineers, Local 953, dated May 1, 2006 to Apr. 30, 2011, San Juan Underground Mine ("CBA"), at 4. The Attendance Policy provides in relevant part that "[a]bsences or tardies should be arranged with the employees' immediate supervisor as soon as possible," and that "[a]n employee is considered to have an unexcused absence if they fail to prearrange their absence." Mot. for Summ. J., Exh. 3, Attendance Policy §§ I.C, D. The Attendance Policy defines "prearranged" "as a minimum of ten (10) hours before the beginning of an employee's scheduled shift." Id. § I. The policy further provides that "[u]nexcused absences can be changed to excused absences upon presentation of adequate evidence by the employee . . . to justify the claim. This evidence should include the reason for the absence and the reason for not prearranging it. The supervisor will make the decision on whether the absence is excused or unexcused. This provision is subject to the Grievance Procedure." Id. § I.F.

The Attendance Policy also instructs employees how to report an absence or tardy. The policy provides that the employee "should contact the Company utilizing the Call-In Procedure." Id. § II.A. The policy further indicates, "If you are unable to reach your supervisor call the 24-hour message service to report off. You should state that you are calling to report off work and then answer the questions asked of you. After the information has been taken you will be given a confirmation number, which you should keep . . . . Your supervisor will later determine whether your absence is excused." Id. § II.B.

In addition, the policy informs employees of the disciplinary action for unexcused absences, and provides, "Employees who do not report off work and/or are absent three (3) consecutive unexcused days will be presumed to have terminated their employment with the Company." Id. § III.A.1. Furthermore, "Employees who fail to report off work and/or accumulate a total of three (3) days of unexcused absences during a six (6) month period shall be presumed to have terminated their employment with the Company." Id. § III.A.2. The policy provides: "First day unexcused absence—Verbal Warning"; "Second unexcused day absence—Written Warning"; and "Third day unexcused absence—Termination." Id. With respect to the aforementioned discipline, the policy provides, "It is also recognized that in certain instances it may be impossible for an employee to report off. The employee will have the right to request reinstatement to their job through the grievance procedure as set forth in the labor agreement, and upon proof of the causes which prevented their calling in." Id. § III.A.3.

The Plaintiff's migraine headaches caused the Plaintiff to miss work on June 23, 2010, June 28, 2010, June 30, 2010, July 2, 2010, July 15, 2010, July 16, 2010, and July 20, 2010. See Resp., Exh. 1, at 309:1-7 (Ortega). With respect to the three absences in June 2010, and the absences on July 2 and 15, 2010, the Plaintiff either notified Irwin on the day of the absence or on the following day that the Plaintiff would not be at work, and the Defendant considered the absences "excused." See id. at 310:5, 311:12-13, 312:10, 14-20 (Ortega).

On July 13, 2010, the Plaintiff's physicians changed his migraine medications, and the Plaintiff's neurologist indicated that the new medications "had potentially severe side effects, including weight loss, diarrhea, an increase in the migraines, or inability to walk because the medications could cause the patient to become unbalanced." Mot. for Summ. J., Exh. 1, Arbitration Op. & Award ("Arbitration Op.") at 15. The Plaintiff started the new medications onJuly 14, 2010, and late in the evening on the 14th or early in the morning on 15th, the Plaintiff developed what he described as "a severe, debilitating migraine." Id. The Plaintiff testified, "I was unable to basically do anything. At that point in time, I—I was unaware of my surroundings and I was very debilitated." Tr. at 320:13-23 (Ortega).2

It is undisputed that the Plaintiff did not report for work on July 15 or 16, 2010, and did not notify the Defendant or call the 24-hour message service before or on the day of either absence. See Resp. at 5. It also is undisputed that the Plaintiff reported to work on July 19, 2010, that he stayed at work two hours, and that Irwin was not on site that day. See Tr. at 304:1-5 (Ortega). During that two-hour period on July 19, 2010, the Plaintiff informed Dawn Villallobos and Jim Grant of his need to take FMLA leave on July 15 and 16, 2010. See Tr. at 323:11-21, 324:7-13 (Ortega) ("I explained to [Dawn Villallobos, the person's office in which he had been assigned to work, and Jim Grant, a management employee,] that I had my medication changed the week prior, and that I was physically unable to come to work"). The Plaintiff left work on July 19, 2010, after two hours because of a migraine headache. See Arbitration Op. at 17. Prior to leaving, the Plaintiff informed Villallobos and Grant that he would be leaving. See id. Villallobos thereafter notified Irwin of the Plaintiff's condition, and Irwin excused the Plaintiff's absence for the remainder of July 19, 2010. See id.

It also is undisputed that the Plaintiff did not report for work on July 20, 2010. Although the Defendant contends that the Plaintiff did not contact his supervisor—whom the Defendantidentifies as Robin Irwin—or call the 24-hour message service, see Mot. for Summ. J., Exh. 9, Documentation of Unplanned Absence or Tardy, dated July 20, 2010; Tr. at 324:14-17 (Ortega), the Plaintiff maintains that on July 20, 2010, he sent a text message to the Defendant's management employee Jim Grant, stating that the Plaintiff would not be reporting for work that day. See id. The Plaintiff testified that he sent a text message to Grant because Irwin was out of town and the Plaintiff "knew Jim was at the office." Id. at 325:3-6 (Ortega). The Plaintiff further testified, "[Grant] told me okay. I hope you feel better, buddy. Do not drive while you—you know, under this condition." Id. When asked, "It's important in the workplace for the person who is supervising the workplace at the workplace to know if an employee is not going to be working on a given day, isn't it," id. at 88:11-14 (Youtz), the Defendant's General Manager James Scott Jones answered, "Correct." Id. at 88:11-15 (Jones). Jones also answered, "Correct," id. at 88:20 (Jones), to...

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