Arce v. Honeywell International Incorporated

• Court: District Court, D. Arizona
• Decided: February 2, 2024
• Docket: 2:21-cv-00768
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Linda Arce, No. CV-21-00768-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 Honeywell International Incorporated,

13 Defendant. 14 15 Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. 91). 16 For the reasons detailed below, Defendant’s Motion for Summary Judgment is granted. 17 BACKGROUND 18 Linda Arce (“Plaintiff”) was employed by Honeywell International Incorporated 19 (“Defendant”) from May 6, 1996, until February 6, 2021, in Phoenix, Arizona. (Doc. 89 20 at 2). Defendant terminated Plaintiff’s employment as a Product Development Quality 21 Engineer on February 6, 2021. (Id.) During her employment, Plaintiff’s manager was 22 Mark Hetelle. (Id. at 3). Plaintiff is a Hispanic female of Mexican national origin. (Id. at 23 2). 24 The following facts, as presented by Plaintiff, are contested. During Plaintiff’s 25 employment, she worked on a project for Boeing, which Plaintiff alleges was part of a 26 contract between Boeing and the United States Navy. (Doc. 95-1 at 152). Between June 27 15, 2017, and October 18, 2018, Plaintiff initiated four Corrective Action Reports (“CAR”) 28 regarding alleged noncompliance issues with Defendant’s products, including on the 1 Boeing project. (Doc. 95 at 4–5). During this time, Plaintiff alleges she told Mr. Hetelle 2 that he treated her unfairly, which she testified was because of her skin color and sex. (Doc. 3 95-1 at 175). 4 Plaintiff points to a series of negative events throughout her employment. First, Mr. 5 Hetelle identified Plaintiff as being “at the bottom” due to her communication style. (Id. 6 at 122). Second, Plaintiff was issued a Performance Improvement Plan (“PIP”) on March 7 13, 2019. (Id. at 106–08). Third, Plaintiff alleges she was “pressured by [Defendant] to 8 sign off on Boeing documents despite her relaying six separate compliance issues,” with 9 one engineer insisting she would call Plaintiff to walk her through her issues until she 10 signed off. (Doc. 95 at 6; Doc. 92-8 at 11). Fourth, Defendant prepared a termination 11 summary for Plaintiff in June or July of 2019. (Doc. 95-1 at 69). Fifth, Plaintiff was put 12 on unpaid medical leave on October 31, 2019, which, according to Defendant, was unpaid 13 because her FMLA leave ran out. (Doc. 92-2 at 37–38; Doc. 95-1 at 191). Finally, Plaintiff 14 cites her ultimate termination on February 6, 2021. (Doc. 89 at 2; Doc. 95 at 6). 15 According to Defendant, and not challenged by Plaintiff, Plaintiff injured her toe 16 and requested FMLA leave on July 12, 2019. (Doc. 91 at 3). This was while Plaintiff was 17 on her PIP. (Id.). Plaintiff then requested FMLA leave and short-term disability. (Doc. 18 91 at 4; Doc. 92 at 5). Plaintiff also requested intermittent FMLA leave to care for her son 19 from July 18, 2019, through January 17, 2020, and for herself from May 1, 2019, through 20 October 31, 2019. (Doc. 92 at 5). Her continuous FMLA leave and short-term disability 21 were approved; her requests for intermittent FMLA leave were denied, according to 22 Defendant, because “her failure to provide a completed medical certification.” (Doc. 91 at 23 4). While Plaintiff maintains that her requests for intermittent leave were improperly 24 denied, the parties agree that Plaintiff was given unpaid medical leave starting October 31, 25 2019. (Doc. 92-2 at 46; Doc. 95-1 at 191–92). On December 21, 2020, Plaintiff received 26 a termination letter indicating she had exceeded the time off allowed by Plaintiff’s policy— 27 18 months—and would be terminated after 30 days, unless she returned to work. (Doc. 28 95-1 at 166; Doc. 92-19 at 61–62). On February 8, 2021, Plaintiff’s employment was 1 terminated. (Doc. 92-2 at 135). 2 On April 30, 2021, Plaintiff filed this action based on claims under the False Claims 3 Act (“FCA”), the Family Medical Leave Act (“FMLA”), Title VII, and the Equal Pay Act 4 (“EPA”). (Doc. 1; Doc. 7). 5 DISCUSSION 6 I. Legal Standard 7 Summary judgment is appropriate if the evidence, viewed in the light most favorable 8 to the nonmoving party, shows “that there is no genuine dispute as to any material fact and 9 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only disputes 10 over facts that might affect the outcome of the suit will preclude the entry of summary 11 judgment, and the disputed evidence must be “such that a reasonable jury could return a 12 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 13 (1986). 14 “[A] party seeking summary judgment always bears the initial responsibility of 15 informing the district court of the basis for its motion, and identifying those portions of 16 [the record,] which it believes demonstrate the absence of a genuine issue of material fact.” 17 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Parties opposing summary judgment 18 are required to “cit[e] to particular parts of materials in the record” establishing a genuine 19 dispute or “show[ ] that the materials cited do not establish the absence . . . of a genuine 20 dispute.” Fed. R. Civ. P. 56(c)(1). A district court has no independent duty “to scour the 21 record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 22 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). 23 II. False Claims Act 24 “The FCA imposes liability on any individual that knowingly defrauds the federal 25 government.” Hamilton v. Yavapai Cmty. Coll. Dist., No. CV-15-08095-PCT-GMS, 2016 26 WL 7102973, at *3 (D. Ariz. Dec. 6, 2016) (quoting 31 U.S.C. § 3729). The FCA further 27 authorizes relief for employees who experience adverse job actions due to their lawful 28 participation in an FCA suit or to stop a violation under the FCA. 31 U.S.C. § 3730(h). 1 To succeed on an FCA relation action, plaintiffs must prove three elements: “1) the 2 employee must have been engaging in conduct protected under the Act; 2) the employer 3 must have known that the employee was engaging in such conduct; and 3) the employer 4 must have discriminated against the employee because of her protected conduct.” U.S. ex 5 rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996). “The plaintiff must be 6 investigating matters which are calculated, or reasonably could lead, to a viable FCA 7 action.” Id. Liability under the FCA attaches when a fraudulent claim for payment is 8 presented to the US government by an individual or entity. Id. at 1265–66. “Mere 9 regulatory violations do not give rise to a viable FCA action.” Id. at 1267. 10 In Hopper, a teacher complained to her superiors when she discovered the school 11 district failed to comply with certain state and federal laws. Id. at 1263. The Ninth Circuit 12 upheld the summary judgment against the teacher on her False Claims Act claims because 13 it found the teacher was not engaged in “furtherance of an action.” Id. at 1269. In other 14 words, the teacher was not herself initiating an FCA claim, whistleblowing, or investigating 15 fraud. Id. Rather, the teacher was merely trying to move her employer into federal and 16 state compliance. Id. (“Correcting regulatory problems may be a laudable goal, but one 17 not actionable under the FCA in the absence of actual fraudulent conduct.”). 18 Plaintiff’s FCA claims fall victim to the same deficiency: the record does not show 19 that Plaintiff was engaged in a protected activity. The record indicates part of Plaintiff’s 20 job was to ensure compliance with applicable regulations and industry standards. While 21 compliance is an important aspect of Defendant’s industry, Plaintiff’s quality-assurance 22 duties are not synonymous with preventing fraud. Plaintiff has not presented evidence that 23 she was investigating fraudulent activity. The flagging of potential compliance issues by 24 Plaintiff in the course of her work is not protected activity as contemplated by the FCA. 25 Because Plaintiff has not shown she was engaged in protected activities under the 26 FCA, Defendant is entitled to summary judgment on Plaintiff’s FCA claims. 27 III. Family Medical Leave Act 28 The FMLA provides employees with the “right to use a certain amount of leave for 1 protected reasons,” and makes “it unlawful for an employer to ‘interfere with, restrain, or 2 deny the exercise of or the attempt to exercise, any right provided’ by the Act.” Bachelder 3 v. America West Airlines, 259 F.3d 1112, 1122 (9th Cir. 2001) (quoting 29 U.S.C. § 4 2615(a)(1)). In interpreting the FMLA, the Ninth Circuit has held that “employer actions 5 that deter employees’ participation in protected activities constitute ‘interference’ or 6 ‘restraint’ with the employees’ exercise of their rights.” Id. at 1123. 7 A plaintiff must show five elements for a prima facie case of FMLA interference: 8 (1) she was eligible for FMLA protections, (2) her employer was covered by the FMLA, 9 (3) she was entitled to leave under the FMLA, (4) she provided sufficient notice for FMLA 10 leave, and (5) the employer denied FMLA benefits she was entitled to. Escriba v. Foster 11 Poultry Farms, Inc., 743 F.3d 1236, 43 (9th Cir. 2014). Claims under the FMLA must be 12 brought within two years of the alleged violation; three years for willful violations. 29 13 U.S.C. § 2617. 14 A. First FMLA Allegation 15 Plaintiff’s first FMLA claim is time barred. Plaintiff alleges interference during her 16 intermittent FMLA leave, which ended on December 17, 2018. (Doc. 7 at 6). Plaintiff 17 filed her first complaint over two years later, on April 30, 2021. (Doc. 1). Plaintiff has not 18 produced evidence showing that Defendant willfully violated her FMLA rights, nor does 19 she allege it. Plaintiff’s response, too, is silent on a charge of willfulness, even after 20 Defendant highlighted the time-barred nature of Plaintiff’s claims. 21 Because Plaintiff filed her claim over two years after the alleged conduct, Plaintiff’s 22 first claim of FMLA interference is time-barred. 23 B. Second FMLA Allegation 24 Plaintiff next alleges FMLA interference based on an FMLA request made July 17, 25 2019. (Doc. 7 at 6). The parties dispute the order in which Plaintiff’s requests for FMLA 26 leave were made and denied. However, even taking the facts as laid out by the Plaintiff, 27 Defendant is entitled to summary judgment. Plaintiff alleges she applied for FMLA leave 28 on July 17, 2019. (Doc. 7 at 6; Doc. 95 at 17–18). While Plaintiff alleges her request was 1 initially denied, she also submits that she was ultimately granted paid FMLA leave from 2 July 17, 2019, through October 31, 2019. (Doc. 95 at 18). Plaintiff does not present 3 evidence or argument in her briefing that claims her leave was not exhausted on October 4 31, 2019. (Doc. 95 at 17–18). In other words, even if Plaintiff’s facts regarding retroactive 5 approval are accurate, she still received the FMLA benefits she was entitled to. 6 Accordingly, Plaintiff has not shown a prima facie case of FMLA interference 7 because she has not shown she was ever denied leave she was entitled to under the FMLA. 8 IV. Title VII 9 For a plaintiff to sue under Title VII, she must first exhaust administrative remedies 10 by filing a charge with the Equal Employment Opportunity Commission (“EEOC”). 42 11 U.S.C. § 2000e-5(b), (e)(1). To establish federal jurisdiction, plaintiffs have 180 days to 12 file charges with the EEOC; they have 300 days to file if they first sought relief through a 13 state or local agency. Id. § 200e-5(e)(1). Failure to timely file bars federal subject matter 14 jurisdiction. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 99 (9th Cir. 2002). 15 Parties agree that Plaintiff filed one charge with the EEOC on January 8, 2020. 16 (Doc. 91 at 6; Doc. 95 at 15). The parties disagree regarding the date Plaintiff received her 17 PIP. (Doc. 96 at 27). The disagreement is immaterial because Plaintiff’s filing with the 18 EEOC was time barred under either party’s date. Even if Plaintiff’s later date of March 19 13, 2019, was correct and, further assuming, she had the extended 300 days to file, Plaintiff 20 had to file with the EEOC by January 7, 2020. The EEOC did not receive a charge from 21 Plaintiff until one day later—January 8, 2020. (Doc. 92-24 at 6). Using the facts most 22 favorable for the nonmovant, Plaintiff’s first filing remains untimely. 23 Plaintiff made a second amended EEOC filing on January 24, 2022, based on her 24 February 8, 2021, termination. (Doc. 92-24 at 10). Parties dispute whether this filing 25 should be treated as a separate filing or under Plaintiff’s initial EEOC filing. (Doc. 91 at 26 6–7; Doc. 96 at 28). The distinction is immaterial. If considered an amendment, Plaintiff’s 27 January 8, 2020, filing remains untimely. If considered a separate filing, Plaintiff only had 28 until December 3, 2021, to file a complaint based on the date of her termination. In either 1 case, both of Plaintiff’s filings with the EEOC were untimely. 2 Because Plaintiff did not timely file her complaints with the EEOC, her Title VII 3 claims are time-barred.1 4 V. Equal Pay Act 5 The EPA prohibits employers from discriminating “between employees on the basis 6 of sex” by paying a lower rate for equal work. 29 U.S.C. § 206(d)(1). “To make out a 7 prima facie case, the plaintiff bears the burden of showing that the jobs being compared 8 are ‘substantially equal.’” Stanley v. Univ. S. Cal., 178 F.3d 1069, 1074 (9th Cir. 1999). 9 “In assessing a plaintiff’s claim of substantial equality between jobs, a court should rely on 10 actual job performance and content rather than job descriptions, titles, or classifications.” 11 Forsberg v. Pacific Nw. Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir. 1988). “[T]he EPA 12 defines what constitutes equal work by specifying that jobs are equal if their performance 13 requires ‘equal skill, effort, and responsibility’ and they are performed under “‘similar 14 working conditions.’” Id. Even where there is pay disparity between two substantially 15 similar jobs, an EPA claim will not succeed where the difference in pay is based on “(i) a 16 seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or 17 quality of production; or (iv) a differential based on any other factor other than sex.” 29 18 U.S.C. § 206(d)(1). 19 Plaintiff has not made a prima facie case for an EPA violation. Plaintiff bases her 20 EPA claim on one employee: Robert Mote (also referred to as Mota). (Doc. 91 at 10; Doc. 21 95 at 19). Plaintiff’s only evidence to substantiate her claim is her own deposition, in which 22 she claims Mr. Mote told her he made twice as much as she did. (Doc. 92-2 at 63). In her 23 testimony, Plaintiff admitted she did not know which position Mr. Mote held when he 24 allegedly earned that amount. (Id.) Furthermore, Plaintiff admitted Mr. Mote did not work 25 in the same division as did she. (Id.). Federal Rule of Evidence 801 casts doubt on whether 26 Plaintiff’s testimony—the only evidence offered to support her EPA claim—would be 27 1 Had Plaintiff filed on time, summary judgment would still be warranted regarding her 28 Title VII claims. Plaintiff did not present evidence of discrimination based on race, sex, national origin, or disability, and did not present a comparator for a prima facie case. 1 admissible at trial. Putting that issue aside, however, Plaintiff’s testimony, even if 2 admissible, does not support a prima facie case for an EPA violation.2 While there was a 3 time that Plaintiff and Mr. Mote worked similar jobs, Plaintiff admits in her own testimony 4 that Mr. Mote had received a different position in a different department when he made the 5 comment. (Id.). It is Plaintiff’s burden to show that her work and Mr. Mote’s work were 6 substantially equal. Plaintiff’s testimony fails to establish any of Mr. Mote’s job duties. 7 Accordingly, Plaintiff does not carry her burden to establish a prima facie EPA 8 claim because she cannot show Mr. Mote engaged in substantially equal work. 9 VI. Rule 56(d) 10 Plaintiff requests a denial, or deferral, of Defendant’s Motion for Summary 11 Judgment under Rule 56(d). (Doc. 95 at 7–8). “When a summary judgment motion is filed 12 ‘before a party has had any realistic opportunity to pursue discovery relating to its theory 13 of the case, district courts should grant any Rule [56(d), formerly] 56(f) motion fairly 14 freely.’” Allen v. Country Mut. Ins. Co., Inc., No. CV-13-01015-PHX-GMS, 2013 WL 15 6903748, at *2 (D. Ariz. Dec. 31, 2013) (quoting Burlington N. Santa Fe R. Co. v. 16 Assiniboine & Sioux Tribes of Fort Peck Rsrv., 323 F.3d 767, 773 (9th Cir. 2003)). A 17 motion under Rule 56(d) must identify how the sought after information would preclude 18 summary judgment. Id. (citing Spear v. United States, No. CV-11-1742-PHX-PGR, 2012 19 WL 2029747, at *2 (D. Ariz. June 6, 2012)). 20 The Court need not consider whether Defendant improperly withheld discovery 21 because Plaintiff has not indicated how the requested document would preclude summary 22 judgment. Plaintiff alleges that Defendant improperly withheld a draft termination 23 summary made in June or July 2019. (Doc. 95 at 7-8). Yet, Plaintiff was terminated 18 24 months after its creation. (Id. at 6). Ultimately, Plaintiff’s firing occurred over a year later 25 because she did not return to work after 18 months. 26 Because Plaintiff has not shown that facts within the June/July 2019 draft

27 2 Plaintiff argues defense-witness’s testimony that the highest paid employees in Plaintiff’s division were women is inadmissible hearsay. (Doc. 96 at 30–31). The Court does not 28 reach the admissibility of either Defendant’s or Plaintiff’s inadmissible evidence because Plaintiff could not make a prima facie case even with favorable evidentiary rulings. 1 || termination summary would preclude summary judgment, her request under Rule 56(d) is 2|| denied.? 3 CONCLUSION 4 In sum, Defendant has shown that it is entitled to summary judgment on all of 5 || Plaintiff's claims. 6 Accordingly, 7 IT IS THEREFORE ORDERED Defendant Honeywell International Inc.’s 8 || Motion for Summary Judgment (Doc. 91) is GRANTED. The Clerk of Court is directed 9|| to enter judgment accordingly. 10 IT IS FURTHER ORDERED directing the Clerk of Court to vacate all pending 11 || deadlines, conferences and the February 13, 2024 trial date. 12 Dated this 2nd day of February, 2024. 13 Wi 14 A Whacrsay Sooo) 15 Chief United States District Judge 16 17 18 19 20 21 22 23 24! 3 Plaintiff also argues Defendant’s Motion for Summary Judgment should be denied as a sanction because Defendant included photos of Plaintiff in 1ts Statement of Undisputed || Material Facts. (Doc. 95 at 9). Plaintiff alleges Defendant’s filing of these photos violates A.R.S. § 13-1425, which prohibits the disclosure of images depicting people in states of 26 nudity with an intent to “harm, harass, intimidate, threaten or coerce the depicted person.” A.R.S. § 13-1425(A)(3). There is no evidence these photos were submitted with any 27 improper intent. More importantly, the photos appear in a heavily redacted form and do not depict Plaintiff in a “state of nudity” as defined by the statute. Jd. §§ 13-1425(A)(1), 28 (D)(7); see also A.R.S. § 11-811(0E)14). Accordingly, the Court will not impose a sanction.

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