Perez v. Qwest Corp.

Decision Date26 July 2012
Docket NumberNo. CIV 11–0852 JB/LFG.,CIV 11–0852 JB/LFG.
Citation883 F.Supp.2d 1095
PartiesLeonardo PEREZ, Plaintiff, v. QWEST CORPORATION and Rick Maggine, Defendants.
CourtU.S. District Court — District of New Mexico

OPINION TEXT STARTS HERE

Michael E. Mozes, Mozes Law Office, Albuquerque, NM, for Plaintiff.

Eric R. Burris, Adam E. Lyons, Brownstein Hyatt Farber Schreck, LLP, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants' Petition to Compel Arbitration and Award Attorneys' Fees or to Dismiss Jury Demand and Demand for Punitive Damages, filed January 31, 2012 (Doc. 18) (“Motion”). The Court held a hearing on April 5, 2012. The primary issues are: (i) whether the parties have agreed to have an arbitrator decide the issue whether the dispute is arbitrable; (ii) whether the parties' arbitration agreement covers the claims Plaintiff Leonardo Perez has asserted against Defendants Qwest Corporation and Rick Maggine; and (iii) whether the Court should award costs and attorney's fees to the Defendants for the expenses they have incurred in bringing the Motion. The Court will grant the Motion. Because there is not a clear and unmistakable agreement to have an arbitrator decide whether the dispute is arbitrable, the arbitration agreement does not provide for an arbitrator to decide whether the case is arbitrable. Because Perez' claims do not conflict with, or face complete preemption under, section 301 of the Labor Management Relations Act, 29 U.S.C. §§ 141–87 (LMRA), and are otherwise covered under the parties' arbitration agreement, the Court will compel Perez to arbitrate his claims against the Defendants. Because the parties contractually agreed to an award of costs and attorney's fees if either party successfully compels arbitration, the Court will award the Defendants their costs and attorney's fees incurred in bringing this Motion.

FACTUAL BACKGROUND

The Court recites the allegations in this section in the light most favorable to Perez. Perez initially began working for U.S. West, Inc., Qwest' predecessor. The arbitration agreement to which Perez agreed when he became employed with U.S. West in 2000 provides:

Any claim, controversy or dispute between you and U.S. WEST, unless otherwise covered by a collective bargaining agreement, whether sounding in contract, statute, tort, fraud, misrepresentation, discrimination or any other legal theory, including, but not limited to, disputes relating to the interpretation of this Attachment; claims under Title VII of the Civil Rights Act of 1964, as amended; claims under the Civil Rights Act of 1992; claims under the Age Discrimination in Employment Act of 1967, as amended; claims under 42 U.S.C. § 1981, § 1981a, § 1983, § 1985, or § 1988; claims under the Family Medical Leave Act of 1993; claims under the Americans with Disabilities Act of 1990, as amended; and, claims under the Fair Labor Standards Act of 1938, as amended, whenever brought shall be resolved by arbitration. The only legal claims between you and U S West which are not included within this Agreement for Arbitration are claims by you for workers' compensation or unemployment compensation benefits and/or claims for benefits under a U S WEST benefit plan if the plan does not provide for arbitration of such disputes. You hereby waive and release all rights to recover punitive or exemplary damages in connection with any common law claims, including claims arising in Tort or contract against U S WEST. By signing this Attachment, you voluntarily, knowingly and intelligently waive any right you may otherwise have to seek remedies in court or other forums, including the right to a jury trial and the right to seek punitive damages on common law claims. The Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”) shall govern the arbitrability of all claims, provided that they are enforceable under the Federal Arbitration Act, as it may be amended from time to time. In the event the FAA does not govern, the Colorado Uniform Arbitration Act shall apply. Additionally, the substantive law of Colorado, only to the extent it is consistent with the terms stated in this Agreement for Arbitration, shall apply to any common law claims.

Attachment A at 4 (dated June 22, 2000), filed January 31, 2012 (Doc. 18–1) (“Arbitration Agreement”) (emphasis in original).

Perez was also subject to a collective bargaining agreement as an employee in the Communications Workers of America (“CWA”) union, which signed a collective bargaining agreement with Qwest. Agreement Between Qwest Communications and Communications Workers of America at 2 (dated October 12, 2008), filed February 16, 2012 (Doc. 23–1) (“CBA”). Article 12 of the CBA provides that [a]n employee whose Term of Employment (TOE) is one (1) or more years shall receive wage replacement during the first seven (7) consecutive calendar days of absence due to sickness” according to a formula table that the CBA specifies. CBA at 8. Article 16.3 of the CBA provides: “Neither the Company or its representative, nor the Union, its local representative or members, will attempt, by means other than the grievance procedure, to bring about the settlement of any issue which is properly a subject for disposition through grievance or arbitration procedures.” CBA at 11. The relevant provisions of article 23 of the CBA are as follows:

An employee who is unable to perform the functions determined as essential by the Company of his or her regular job as a result of an on-the-job accidental injury (as defined in the West Disability Plan) or an illness, physical or mental limitation, or off-the-job injury, will be considered for a position of equal or lower status and pay.

....

... If Qwest Disability Services or its designee has determined the employee can return to work with a medical restriction of one hundred eighty (180) calendar days or less, the employees shall remain in the present job title and receive the present paid rate for up to ninety (90) calendar days. If after ninety (90) calendar days the employee is still unable to perform the essential functions of his or her regular job, the employee shall remain in the present job title and the remaining ninety (90) calendar days shall be treated as non-paid excused time. A maximum of one hundred eighty (180) calendar days (paid/unpaid) will be allowed in a rolling twelve (12) month period regardless of the number or nature of the employee's restrictions.

The Company or Union Bargaining Agents may initiate a review based on extenuating circumstances, to discuss any exceptions of the (180) calendar days prior to placement of an employee on an eighty (80) day job search as outlined in Section 23.6. Any such agreement between the parties' Bargaining Agents shall be considered non-precedential and non-referable.

CBA at 13. The remaining relevant portions of article 23 are as follows:

To assist in determining the abilities of an employee with medical restrictions, an assessment may be conducted at the request of the employee or the local union (if the employee concurs) or at the initiation of the Company. The employee must participate in this evaluation. The assessment tool, which may include but not be limited to, a Functional Capacity Evaluation, Independent Medical Evaluation, and/or Cognitive Testing, will be determined by Qwest Disability Services or its designee based on the employee's condition and diagnosis. This assessment will determine the employee's ability to remain in his/her current job or another job within the Company with or without accommodation. Utilization of the assessment tool will not alter the job search process as outlined in Article 23.6

....

... Following is the position to be taken regarding the option of obtaining an Independent Medical Evaluation (IME). A demotion or termination handled under the provisions of Article 16 which results from the imposition of a medical restriction, shall not be subject to arbitration. If a dispute arises concerning either the length or the scope of the medical restriction, and the employee so requests or the local union requests (if the employee concurs), Qwest Disability Services or its designee will consult with the employee's personal physician concerning the length and scope of the restriction. If they are unable to agree, the matter will be referred to a mutually acceptable physician (in accordance with the administrative guidelines in place regarding this process) who is knowledgeable in occupational safety and health matters who shall be afforded the opportunity to review the pertinent medical data, to review the requirements of the work place, and to examine the employee. An agreement with the independent physician will ensure that the results of the examinations will be received by the Company and the Union within fifteen (15) calendar days of the examination. Both the Company and the Union will comply with the decision of this physicianas to the proper length and scope of the restriction.

CBA at 13.

“Qwest first hired Perez in 1999.” Complaint for Damages from Violations of Title VII of the Civil Rights Act and Assault and Battery ¶ 11, at 2, filed September 23, 2011 (Doc. 1) (“Complaint”). “In 2002, Qwest transferred Perez to Las Cruces, New Mexico.” Complaint ¶ 11, at 2. “Following the transfer, Perez worked as a splicer network technician.” Complaint ¶ 11, at 2. “Perez has remained in this position until the present date.” Complaint ¶ 11, at 2. “Perez has fulfilled his job duties in at least a satisfactory manner throughout the period of the Las Cruces employment and became known as one of the most capable Qwest employees in Las Cruces in his position.” Complaint ¶ 11, at 2. “Qwest consistently emphasizes with its employees the need to work in a safe and secure manner.” Complaint ¶ 12, at 2.

“In 2007, Maggine became Perez' supervisor.” Complaint ¶ 13, at 2. “At some point in 2008, Perez learned that Maggine was altering and...

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