ALJDEC decisions subject to certification as final

2017-001-RRFD · Rio Rico Fire District · 2017-07-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ernesto Archuleta,

Appellant,

vs.

Rio Rico Fire District, an Arizona Fire District,

Respondent Agency.

No. 2017-001-RRFD

ORDER GRANTING SUMMARY JUDGMENT TO RESPONDENT AGENCY RIO RICO FIRE DISTRICT

Background and Procedure

Ernesto Archuleta (“Appellant”) was employed by Rio Rico Fire District (“Respondent Agency”) since in or about June 2008.

In or about March 2017, Respondent Agency issued discipline at the level of termination based on Appellant’s conduct in responding to a call for service on or about January 6, 2017, and Appellant’s past history of discipline.

Appellant requested an appeal and, pursuant to an Intergovernment Agreement between Respondent Agency and the Office of Administrative Hearings (“OAH”), an independent state agency, Respondent Agency referred the matter to OAH for an evidentiary hearing.

OAH provided a hearing date of May 12, 2017, at 9:00 a.m.

On or about April 18, 2017, Respondent Agency filed a Pre-Hearing Statement with OAH identifying the witnesses whose testimony it intended to present, providing a summary of the witnesses’ anticipated testimony, and identifying the exhibits that it intended to submit, as required by its Corrective Action/Disciplinary Process Rule V(D)(2). Appellant never filed a Pre-Hearing Statement.

The Pre-Hearing Statement referenced the date of the scheduled hearing.

On or about April 24, 2017, Respondent Agency filed a motion for summary judgment, a statement of facts, and exhibits in support of the motion.

On April 27, 2017, the undersigned Administrative Law Judge (“ALJ”) assigned to the case issued an order requiring Appellant to respond to Respondent Agency’s motion for summary judgment on or before May 2, 2017. The order also set a prehearing conference/oral argument on the motion for summary judgment on May 3, 2017, at 3:00 p.m.

On or about May 2, 2017, Appellant filed a motion in response to Respondent Agency’s motion for summary judgment and a motion to continue the May 12, 2017 hearing, in relevant part as follows:

1) I do not wish the motion to dismiss/motion for summary judgment should be granted. I believe that I was unjustly terminated and can show that. I also believe that my being Union President at that time had an impact on my termination. I have lost my career due to this and my pension. I will fight this vindictive termination with all my resources and all my energy. 2) I am not prepared for a pre-trial hearing tomorrow, May 3rd, 2017, since I meet my attorney in person for the first time this Friday May the 5th. To have a hearing without legal counsel, [and] due to the severity of this case and its repercussions would not benefit justice. 3) Furthermore, I am requesting the May 12th date be changed. I am requesting 30 days for my legal counsel to have the time they need to defend me adequately. Thank you your Honor for your consideration in this matter. -- I am a career firefighter/paramedic who has lost everything through standing up for my fellow firefighters. This has been devastating to my family and to my retirement. I deserve my day in court to show exactly what has transpired so no one else should go through this again.

On May 2, 2017, the ALJ issued an order continuing the prehearing conference/oral argument on Respondent Agency’s motion for summary judgment until June 21, 2017, at 3:00 p.m. and allowing Appellant until June 19, 2017, at 5:00 p.m. to file a response to the motion for summary judgment. The May 2, 2017 order advised the parties that “[r]egardless of whether or not Appellant retains counsel, absent extraordinary circumstances, no further continuances will be granted.”

A prehearing conference/oral argument on Respondent Agency’s motion for summary judgment was held on June 21, 2017, at 3:00 p.m. Appellant and Respondent Agency’s attorney appeared telephonically. The ALJ asked Appellant whether he had any evidence to support his defense that he was treated differently from other employees of Respondent Agency due to his union activities and he indicated that he had emails from an unnamed battalion chief indicating that Appellant had been placed under a microscope and advised not to work unsupervised because of his union activities. The ALJ informed Appellant that she would set a third prehearing conference on July 5, 2017, and that if he retained an attorney whose calendar did not permit him or her to appear at the prehearing conference/oral argument on the motion for summary judgment, the attorney should file a notice of appearance and motion to continue.

On June 21, 2017, the ALJ issued an order setting a third prehearing conference/oral argument on Respondent Agency’s motion for summary judgment on July 5, 2017, at 3:00 p.m., and requiring Appellant to “file a response to Respondent Agency’s motion for summary judgment, stating which material fact(s) in the Statement of Facts that Respondent Agency submitted in support of the motion for summary judgment that he disputes and making an offer of proof of the evidence that he intends to submit to controvert the fact(s)” on or before 5:00 p.m. on July 3, 2017. The order also advised Appellant that if he failed to file a response to the motion for summary judgment, the ALJ would grant the motion.

Appellant did not file a response to the motion for summary judgment before 5:00 p.m. on July 3, 2017. No attorney filed a notice of appearance. Instead, on July 5, 2017, hours before the scheduled prehearing conference/oral argument, Appellant filed a motion to continue the prehearing conference/oral argument on the motion for summary judgment, in relevant part as follows:

When we last spoke telephonically, June 21st, 2017, with Donna Aversa there were several items mentioned. The first that was abundantly clear is that I needed an attorney. I did mention that I did get an attorney but we were still finalizing paperwork and going over the case. You graciously granted a two-week continuance. There are many things that transpired that I would like to inform your Honor.

I retained my lawyer, Mr. Dale Norris, on June 26th, 2017. He then communicated that he was able to communicate with Ms. Aversa. He stated that he would be out of the country as of June 28th, and would not be able to file a Motion on my behalf until July 17th, 2017. He asked Ms. Aversa if she would agree to a continuance until he was able to get back in the U.S. Ms. Aversa said no. That frankly surprised my legal counsel and is the reason that I am writing this rather than my attorney.

The other item mentioned was that I needed to submit some kind of evidence or documents that would support me and my case against RRFD. After talking to legal counsel this case isn’t like that. There is no smoking gun. I admitted that technically I did commit the infractions that I am accused of however, I did clearly state that there were extenuating circumstances that were never taken into account. Also, that this shotgun approach/litany of sins, listed by the District in the pre-hearing document does not show that these write ups I received were the norm at RRFD. There was a discriminatory application of policy infractions listed against me that were not applied to other employees. Ms. Aversa was incorrect that I was the Labor Union Vice President. I never held that position but for six years I served as President. During that time, I was involved in dozens of disciplinary hearings and my treatment was definitely the outlier. This can all be substantiated. There is clearly a pattern of retribution that has occurred.

Also, my position as President of Labor is germane to this case. My counsel states that my treatment is intertwined with every aspect of this case. He also states that he needs more information. Ms. Aversa stated that she sent me all the information related to this case. The pre-hearing document from RRFD did state all the charges against me. However, the disciplinary documents for each of the infractions listed against me were not included. My attorney needs those exhibits. After we receive those documents from Ms. Aversa we will be compiling a witness list and will have interviews with said witnesses that will show a pattern of inconsistent application of policy that will also show selective favoritism.

In conclusion, your Honor, I realize that you last stated to me that you were not willing to grant me any more continuances. However, that point would be moot if Ms. Aversa had agreed to work with my attorney. I understand that Ms. Aversa wants you to agree with her with regard to a Summary Judgment and my case. I would like that notion to be controverted since it is contrary to the policies of the OAH. It also doesn’t matter if it is the policy of RRFD. This case will show that there are serious shortcomings with RRFD policy. With the all the aforementioned listed in this document I respectfully request that the Motion that was do today, July 3rd, 2017, be delayed until at least July 17th, so my legal counsel can file. Mr. Norris will be available August 14, 15, 17, 18, 21, 22, 30 and September 1, 2017.

On July 5, 2017, Respondent Agency filed a reply to its motion for summary judgment. Respondent Agency’s attorney stated, “To the extent the ALJ may find it relevant, on June 26, 2017 (the Monday following the Wednesday, June 21 hearing), undersigned counsel did receive a phone call from Phoenix attorney Dale Norris and based on that conversation, undersigned counsel has reason, apart from the lack of appearance, to believe Mr. Norris has not undertaken representation of Appellant.”

The prehearing conference/oral argument was held on July 5, 2017. The ALJ denied Appellant’s motion to continue. Appellant stated that although as a union official, he was aware of discipline given to others in Respondent Agency’s employment for similar offenses that was much more lenient than termination of employment, he did not think that he could use such evidence due to HIPAA statutes. Appellant did not identify any other witnesses other than himself or any documentary evidence that he could use to establish at hearing that Respondent Agency terminated his employment due to his union activities.

Respondent Agency’s Motion for Summary Judgment

Respondent Agency’s motion for summary judgment was based on three facts that Appellant admitted: (1) On January 6, 2017, after transporting a patient to Tucson and while Appellant was still on duty, he had stopped to eat at Choice Greens restaurant and to check his mail at a UPS Store; (2) Both stops violated Respondent Agency’s policy that prohibited conduct of personal business and delays in returning to the station while on duty; and (3) Appellant had an extensive history of discipline dating back to January 2011, including verbal and written warnings, suspensions, and demotion from captain to firefighter/paramedic and a history of offenses that were similar to what occurred in January 2017.

Respondent appealed Respondent Agency’s termination of his employment because he argued that it was too harsh a sanction, especially in light of the discipline meted out to other employees for similar offenses. However, Appellant did not dispute that termination was permissible discipline under Respondent Agency’s Corrective Action/Disciplinary Process Rule IV(A) and V(F) that provide for progressive discipline.

Section VI(D)(12) of Respondent Agency’s Corrective Action/Disciplinary Process requires the ALJ to apply a deferential standard of review and the power to overturn a decision only the decision is determined to be arbitrary and capricious.

As noted above, although Appellant stated that he believed Respondent Agency’s termination of his employment was in retaliation for his union activities, he did not describe or submit any evidence to establish this defense. Even if Appellant had presented some evidence of improper motivation, Respondent Agency’s action was not arbitrary or capricious in light of Appellant’s admissions of violations of Respondent’s Agency’s policies on January 6, 2017, Appellant’s extensive disciplinary history, and Respondent Agency’s Progressive Discipline policy.

Order

Respondent Agency’s policy VI(D)(4)(d) provides that “Summary Judgement must be granted by the ALJ where the parties do not differ on any genuine issue of material fact and one of the parties can prevail by the ALJ merely applying the policies and applicable law.”

Based on the foregoing, IT IS ORDERED granting Respondent Agency’s motion for summary judgment, dismissing Appellant’s appeal, and remanding this matter to Respondent Agency to finalize the termination of Appellant’s employment.

Done this day, July 7, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Copy mailed/e-mailed/faxed July 7, 2017 to:

Les Caid, Fire Chief

Rio Rico Fire District

822 Pendleton Dr.

Rio Rico, AZ 85648

Ernesto Archuleta

3849 E. Broadway Blvd., #200

Tucson, AZ 85710

[email redacted]

Donna M. Aversa, Esq.

Leonard & Felker, PLC

7440 N. Oracle Rd., Bldg. 2

Tucson, AZ 85704

[email redacted]

By Felicia Del Sol