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Manna v. Phillips 66 Co.

United States District Court, N.D. Oklahoma

January 17, 2018

(1) WILLIAM MANNA, Plaintiff,


          TERENCE KERN United States District Judge.

         Before the Court are (1) Defendant Phillips 66 Company's Motion for Summary Judgment and Brief in Support (“Motion for Summary Judgment”) (Doc. 49) and (2) the parties' briefs regarding Plaintiff's claim for benefits under the Employment Retirement Income Security Act (“ERISA”), pursuant to the Court's July 26, 2017 ERISA Scheduling Order (Doc. 35): (a) Plaintiff's Opening Brief (Doc. 48), (b) Defendant Phillips 66 Severance Pay Plan's Response Brief (Doc. 53), and (c) Plaintiff's Reply Brief (Doc. 58).

         I. Factual Background[1]

         A. Employment Background

         In 1997, Plaintiff was hired by a predecessor company of Defendant Phillips 66 Company (“Phillips”) as an engineer. In 2008, Plaintiff was transferred from New Jersey and began working in the procurement group in Bartlesville, Oklahoma. Plaintiff's job responsibilities included assisting various company employees, business units, and refineries with negotiating contracts for supplies and services. In December of 2013, Plaintiff was promoted to Lead of the Strategic Sourcing Group. In 2014, Plaintiff became the direct supervisor of Michelle Tarter (“Tarter”), then a Strategic Sourcing Analyst.

         In September of 2014, Plaintiff was removed from a supervisory role over Tarter; however, throughout the remainder of his employment he continued to work with Tarter and another employee, Mike Siegfried (‘Siegfried”), in the Bartlesville office.[2] Also in September of 2014, Rebeca Ginyovszky (“Ginyovszky”) became Plaintiff's supervisor. When Plaintiff was reporting to Ginyovszky, Ginyovsky's job title was Strategic Sourcing Director in procurement and her office was located in Houston, Texas. Ginyovszky also supervised Tarter and other employees working in Houston in the procurement group.

         Plaintiff was a salaried employee and had no published work shift or timekeeping requirement. (Manna Aff., Pl.'s Ex. 1, at ¶ 8.) Plaintiff was able to perform work duties remotely from his laptop computer. Plaintiff's position required approximately 30 percent to 40 percent travel. (Manna Aff. at ¶ 9.) When Plaintiff was not traveling, his weekday work hours at the office began around 8:30 or 9:00 a.m. and ended around 5:30 p.m. Plaintiff periodically worked after-hours or on weekends at home, depending upon his workload. (Id. at ¶ 10; see also Ginyovszky Dep., Pl.'s Ex. 4, at 80-81.) Tarter stated in deposition testimony that she had received communications concerning business from Plaintiff, including phone calls, text messages, and emails, on weekends and on weekdays after 5:00 p.m. (Tarter Dep., Pl.'s Ex. 3, at 18-19.)

         B. Plaintiff's 2014 Performance Review and Discipline[3]

         Before 2015, Plaintiff's overall performance ratings were at or above the “Met Standards” level, including “Exceptional” ratings in 2005 and in 2008 through 2011. (Pl.'s Ex. 5.) In 2010 and 2013, Plaintiff received salary grade promotions as the “corporate winner” for the procurement department. (Manna Aff. at ¶ 5.) Ginyovszky stated in deposition testimony that Plaintiff was “very knowledgeable in terms of the technical aspect, ” “was a valuable asset, ” “took a lot of pride in his work, ” and “had done a good job.” (Ginyovszky Dep. at 75-76.) On March 3, 2015, Ginyovszky completed a 2014 Performance Agreement on Plaintiff. Ginyovszky rated Plaintiff's overall job performance for 2014 as 3.6 out of 5, which was rounded up to 4, or “Below Expectations.”[4]

         On May 21, 2015 Ginyovszky issued to Plaintiff a written warning for “routine late arrival to the office” (the “May Warning”). (Pl.'s Ex. 7.) She instructed Plaintiff to be “at the office no later than 9:00 a.m.” and “communicating with [Ginyovsky] when [Plaintiff] would not be in the office or not able to make the designated time frame.” (Id.) Prior to the May Warning, Plaintiff had never been disciplined for attendance or tardiness. (Manna Aff. at ¶ 7.) Ginyovszky testified she became aware that Plaintiff was coming into work late in Bartlesville from an anonymous letter which she has never seen. (Ginyovszky Dep. at 44:9-21.)[5] Ginyovszky did not instruct anyone to keep a log of Plaintiff's arrival to work in Bartlesville. (Id. at 71:2-72:2.) In mid-June of 2015, Plaintiff met with Ginyovszky and Turner regarding Plaintiff's performance. In this meeting, Plaintiff did not receive performance criticism and was not issued further corrective discipline. (Manna Aff. at ¶ 30.)

         C. July 2015 Trip to Houston

         On July 14, 2015 Plaintiff worked part of the day and then traveled to Houston to meet with members of the procurement group, including Ginyovszky. Plaintiff's mid-year review with Ginyovszky was scheduled for 2:00 p.m. on July 15. The morning of July 15, Plaintiff worked on his computer at his hotel room in Houston and arrived at Phillips headquarters around noon. (Id. at ¶ 21.) While Plaintiff was meeting with a colleague named Erin Powers, Rupert Turner (“Turner”) arrived and escorted Plaintiff to an office. Plaintiff had not previously seen or spoken to Ginyovszky or Turner that day. (Id. at ¶ 22.) Plaintiff was then escorted to the office of Dr. William Parsons (“Parsons”), Chief Medical Director, where he underwent an alcohol test, a five-panel urine test, and a blood sugar test. The results of the tests were negative. Plaintiff had never before met Parsons, and Parsons had never been involved in evaluating Plaintiff's work performance. (Id. at ¶ 24.)

         D. Leave of Absence and Termination

         During Plaintiff's examination on July 15, Parsons indicated that something “was wrong” with Plaintiff and told Plaintiff that he was removed from work. (Manna Aff. at ¶ 26.) Phillips placed Plaintiff on short-term disability and Family Medical Leave Act (“FMLA”) leave and sent him home. Plaintiff's return to work was conditioned upon the results of additional exams and drug/alcohol tests by his primary physician in Oklahoma and with Phillips' staff physician at the company's Bartlesville facility. (Ginyovszky Dep. at 39:11-40:9; Pl.'s Ex. 10.) Phillips sent Plaintiff a letter dated July 16, 2015, stating that his short-term disability would extend “until you are fully released to return to work and our medical team has reviewed and approved the Employee Health Report.” (Pl.'s Ex. 11.) Plaintiff returned to Bartlesville by jet and drove himself home that night. (Miller Dep. at 19:3-20.)

         Although Plaintiff had passed all examinations and tests, Parsons was also concerned that there was “something else there” in relation to Plaintiff's health, according to Linda Miller (“Miller”), an HR employee in Houston. (Miller Dep., Pl.'s Ex. 2, at 15.) Ginyovszky was concerned that Plaintiff was impaired “health-wise, ” “alcohol-wise” or relating to a “substance.” (Ginyovszky Dep. at 38:2-5.) However, Ginyovszky did not complete a Supervisor's Checklist to support additional tests. (Id. at 83:6-15.) Parsons instructed Plaintiff's personal physician to complete an “Employee Health Report” on Plaintiff. (Miller Dep. at 20:21-22:17; Pl.'s Ex. 11.) After Plaintiff saw his personal physician, Parsons reported that all additional lab tests were negative and that Plaintiff's physician had deemed him “completely ‘normal.'” (Pl.'s Ex. 12.) Parsons noted that “if he is now ‘normal, ' he discontinued using whatever substance that could have given him these symptoms.” (Id.). Plaintiff was instructed to undergo a third examination with Dr. Karen Ryan (“Ryan”), Associate Medical Director for Phillips, to clear Plaintiff prior to his return. (See id.) On July 24, 2015, a Friday, Plaintiff was examined by Ryan and was released to work without restrictions. (Pl.'s Ex. 13.)

         When Plaintiff arrived at work on Monday, July 27, 2015, he met with Tom Schroeder (“Schroeder”), an HR employee in Bartlesville. After meeting with Plaintiff, Schroeder completed a summary of his assessment of Plaintiff, noting that Plaintiff denied any drug or alcohol use and stating that “if he had anything going on in the outside impacting his behavior now is the time to come forward and see [the employee assistance program (“EAP”)], ” and that “we want to ensure that he is clean.” (Pl.'s Ex. 15.) The same day, Miller noted in an email that Plaintiff “is acting ‘clean' at the moment” and that Schroeder had “essentially given him the EAP speech.” (Pl.'s Ex. 16.)

         Plaintiff worked for approximately one week then took a previously scheduled three-day vacation. (Manna Aff. at ¶ 29.) When Plaintiff returned from vacation, Phillips terminated his employment on August 6, 2015. Plaintiff was given a document signed by Ginyovszky stating that Plaintiff had “repeated the same or similar conduct for which [he was] warned.” (Pl.'s Ex. 17.) After his return from leave, Plaintiff was not counseled or disciplined. (Manna Aff. at ¶ 35.) The only specific dates identified by Ginyovszky that Plaintiff violated the May Warning are July 14 and July 15, 2015. (Ginyovszky Dep. at 55:8-56:17.) At his termination, Plaintiff had worked at Phillips for approximately eighteen years. (Id. at ¶ 3.)

         Under company policy, Ginyovszky was required to complete a mid-year review of Plaintiff by July 31, 2015. Plaintiff submitted to Ginyovszky a draft of his portion of the mid-year review. (Id. at ¶ 32.) However, Ginyovszky never issued Plaintiff's mid-year review. (Id. at ¶¶ 33-34.) Before Plaintiff's termination, Ginyovszky had seen Plaintiff in person approximately five or six times. (Ginyovszky Dep. at 29:10-19.)

         Plaintiff had never failed any drug or alcohol test during his eighteen years of employment with Phillips. (Manna Aff. at ¶ 27.) Plaintiff maintains that he does not and has not had a mental infirmity or illness and has not been treated for alcohol or substance abuse. Since his termination, he is gainfully employed within his field. (Id. at ¶ 25.)

         E. Substance Abuse Policy and Procedures

         During the last year of Plaintiff's employment, Phillips' “US Substance Abuse Policy” and “U.S. Substance Abuse Company Non-DOT Procedures” were in place and applicable to Plaintiff.

         The U.S. Substance Abuse Policy provides in part that employees are prohibited from using any substance that “may alter an individual's mood, perception, coordination, response, performance or judgment” while on the job or company property. The U.S. Substance Abuse Policy and U.S. Substance Abuse Company Non-DOT Procedures provide that employees may be subject to drug and alcohol testing in cases where at least two supervisors observe physical signs and symptoms consistent with substance abuse or unsatisfactory work performance. Follow-up drug and alcohol testing by Phillips is prescribed only after the employee has successfully completed a required drug treatment program. (Drug & Alcohol Testing Policy, Defs.' Ex. 9, at §§ II. E-F.)

         F. Procedural History

         On July 27, 2016, Plaintiff filed this action, asserting claims against Phillips for discrimination under the Americans with Disabilities Act of 1990 (“ADA”), discrimination by association under ADA, violation of the Oklahoma Testing Act, and retaliation under FMLA.[6] Subsequently, Plaintiff sought and was denied benefits under the Phillips 66 Severance Pay Plan (the “Plan”), which is governed by ERISA. On July 25, 2017, with leave of Court, Plaintiff filed a First Amended Complaint (Doc. 33) adding a claim against the Plan seeking review of the denial of ERISA benefits.

         On October 2, 2017, Phillips filed a Motion for Summary Judgment and Brief in Support (Doc. 49) pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”), seeking summary judgment in its favor on all of Plaintiff's claims. On October 23, 2017, Plaintiff filed a response brief (Doc. 53) in opposition to the motion. In his response, Plaintiff confessed his ADA discrimination by association and FMLA interference claims. Pursuant to the Court's July 26, 2017 ERISA Scheduling Order, Plaintiff and the Plan submitted briefs on Plaintiff's ERISA benefits claim.

         II. Motion for Summary Judgment

         A. Summary Judgment Standard

         Summary judgment is proper only if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). In its summary judgment analysis, the Court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking to overcome a motion for summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         A movant that “will not bear the burden of persuasion at trial need not negate the nonmovant's claim, ” but may “simply . . . point[] out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima facie showing, “the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Id. (citing Fed.R.Civ.P. 56(e)). To meet this burden, the nonmovant must set forth facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Id. (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)). “In response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. The mere possibility that a factual dispute may exist, without more, is not sufficient to overcome convincing presentation by the moving party.” Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988).

         B. ADA Disability Discrimination

         Under the ADA, an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (2012). ADA discrimination claims based on circumstantial evidence are subject to the burden-shifting framework of McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973). Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). A prima facie case of disability discrimination requires Plaintiff to show that: (1) he was a disabled person; (2) he was qualified, with or without reasonable accommodation, to perform the essential functions of his job; and (3) he was fired because of his disability. Carter v. Pathfinder Energy Servs., 662 F.3d 1134, 1142 (10th Cir. 2011). If Plaintiff makes such a showing, the burden shifts to Phillips to articulate some legitimate, nondiscriminatory reason for its actions. Id. at 1141. Plaintiff then bears the ultimate burden of showing that Phillips's proffered reason is a pretext designed to mask discrimination. Id.

         The term “disability” means, with respect to an individual--

(A) a physical . . . impairment that substantially limits one or more major life ...

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