Ion v. Chevron USA, Inc.

Filing 41

ORDER granting 27 Motion for Summary Judgment Signed by Chief District Judge Louis Guirola, Jr on 04/11/2012 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
TODD W. ION

PLAINTIFF

v.

CAUSE NO. 1:11CV124 LG-RHW

CHEVRON USA, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Motion for Summary Judgment [27] filed by
Chevron USA, Inc. The Plaintiff has responded in opposition, and Chevron has
replied. After due consideration of the submissions and the relevant law, it is the
Court’s opinion that there is no question of material fact for the jury in regard to
Plaintiff’s retaliation claim. The Motion will therefore be granted and the
retaliation claim dismissed.
THE ALLEGATIONS OF THE COMPLAINT
Plaintiff Todd Ion worked as a lab chemist at the Chevron Pascagoula
Refinery beginning in November 2006. He was suspended for five days for alleged
performance reasons, and was to return on Monday, March 23, 2009. On the Friday
prior to his scheduled Monday return, he contacted Chevron’s Employee Assistance
Program. He was referred to a licensed professional counselor, who saw him the
next day. Ion alleges he informed his supervisor on the day scheduled for his return
that he was under the care of a counselor and would be taking leave for more than
three days because of “emotional, financial and psychological stressors in [his]
personal and family life.” He alleges he submitted certification of his need for leave

to Chevron, and that the information he provided was sufficient for Chevron to
designate his request for leave as qualifying for the FMLA. Chevron terminated his
employment on April 2, 2009. He contends that his termination was based on
having taken FMLA leave, interfered with his right to take FMLA leave and be
reinstated on his return, and “was a willful, wanton violation of his rights to FMLA
leave.” (Compl. 2 (¶15-17), ECF No. 1).
THE MOTION FOR SUMMARY JUDGMENT
Chevron has moved for summary judgment, arguing that Ion has made one
claim - for retaliation claim under the FMLA - and that claim cannot survive its
legitimate, nondiscriminatory reasons for terminating him. The parties disagree
about the scope of Ion’s FMLA claims, as he contends he has made substantive
interference and discrimination claims in addition to the retaliation claim.
Under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.,
employers have a prescriptive obligation - they must grant employees substantive
rights guaranteed by the FMLA - and they have a proscriptive obligation - they may
not penalize employees for exercising these rights. Hunt v. Rapides Healthcare
Sys., LLC, 277 F.3d 757, 763 (5th Cir. 2001). Ion’s claims implicate both, in that he
contends Chevron interfered with his right to take FMLA leave and be reinstated –
violations of his prescriptive rights – and he was terminated because he exercised
his right to FMLA leave – a violation of his proscriptive rights. (Compl. 2 (¶15-17),
ECF No. 1). Ion is not required to establish a violation of the substantive,
prescriptive provisions of the FMLA to allege a violation of the proscriptive
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provisions.
Chevron’s summary judgment motion addressed only the retaliation claim
because Chevron interpreted the Complaint to make only that claim. Chevron did
not acknowledge the interference claim until it replied to Ion’s response. Even then,
Chevron did not address whether Ion had established a prima facie case of
interference, which requires him to show that his leave was protected under the
FMLA. See Ford-Evans v. United Space Alliance LLC, 329 F. App’x 519, 523 (5th
Cir. 2009). Chevron only attacked the reasons Plaintiff alleges he was terminated.
As this issue was raised and briefed, the Court will consider Chevron’s Motion for
judgment as a matter of law regarding Ion’s retaliation claim.
THE SUMMARY JUDGMENT EVIDENCE
The parties have provided records of Ion’s employment showing Chevron’s
growing concern with his attendance and job performance. His performance review
for 2008 noted a number of performance deficiencies. (Def. Mot. Summ. J. Ex. 6, at
3, ECF No. 27-6). He received a score of 2-, meaning he marginally met
performance expectations. (Id.). Ion’s supervisors at the time were Steve Ogborn,
chief chemist, Vince Dressler, lead chemist, and Rich Kerns, laboratory supervisor.
Near the end of February 2009, Ogborn spoke with a Human Resources
employee about Ion. According to an email from the HR employee to Johnette
Watson, an HR manager,“[t]hey have reviewed [Ion’s] gate records because of
concerns there and have other current performance concerns. With the combination
of events they are likely looking at suspension and [Attendance Improvement Plan]
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but in weighing it all the recommended action may be to go beyond suspension.”
(Pl. Resp. Ex. 3, ECF No. 37-3; Def. Mot. Summ. J. Ex. 7, at 10, ECF No. 27-7).
Watson testified that she had discussed Ion’s attendance and performance issues
with Ogborn the previous month. (Def. Mot. Summ. J. Ex. 7, at 10-11).
On March 16, 2009, Ogborn provided Ion with the Performance Agreement
and Attendance Improvement Plan. (Pl. Resp. Ex. 4, ECF No. 37-4). This threepage document detailed Ion’s performance deficiencies, including what it called
“AWOL events” when he was absent from the Refinery without explanation. The
document set out the Company’s expectations and a method by which it would
monitor Ion’s progress toward meeting expectations. He received a five-day
suspension without pay and was warned that failure to comply with the Plan upon
his return would result in further disciplinary action. (Id. at 3).
Ogborn scheduled a meeting with Ion and Watson on March 23, Ion’s first
day back after suspension, but Ion called in sick. (Pl. Resp. Ex. 6, ECF No. 37-6).
Another meeting was scheduled for the next day, but Ion also called in sick that
day. During the phone call on the 24th, Ion informed Ogborn that he was “working
on paperwork for short term disability.” (Pl. Resp. Ex. 7, ECF No. 37-7). Ogborn
told Ion to work with the clinic on that issue. (Id.). Ogborn also relayed this
information to Watson, who recommended that Ogborn send an email to the clinic
informing them and asking them to keep him informed as to when Ion would be
back to work. (Id.).
Chris Melcher, a Technical Manager, received a copy of Ogborn’s email to the
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clinic. He responded that “[i]t looks like Mr. Ion is playing games with us after his
suspension. I assume the ‘paperwork for short-term disability’ comment means he
is looking for a doctor to give him some FMLA-qualified time off. What are our
options moving forward?” (Pl. Resp. Ex. 8, ECF No. 37-8). It appears on the same
day, Chevron received a Certification of Health Care Provider form completed by a
Licensed Professional Counselor on Ion’s behalf. (Pl. Resp. Ex. 5, ECF No. 37-5).
According to the Counselor, Ion was incapacitated as of March 23 and unable to
perform work of any kind. The medical facts supporting the certification were: “too
much stress – can’t focus on his job – single parent.” (Id. at 1). The duration of his
incapacity was “undetermined.” (Id.).
Also on March 24, the clinic nurse sent Ion an email informing him that she
had sent FMLA paperwork to him in the mail, but that he needed to report to the
clinic to complete a “GO-153 form.” (Pl. Resp. Ex. 9, ECF No. 37-9).
On March 25, Ion’s co-worker, James Peel, sent an email to Ogborn relating
an incident with Ion. He had spoken to Dressler about it, who requested that Peel
send an email to Ogborn. Peel stated:
A couple of weeks ago, 3/12, Todd returned to our shared office in an
angered state of mind. He openly shared with me his frustrations
regarding a meeting he had with Steve [Ogborn] and Vince [Dressler].
The subject of his meeting was attendance. He spoke of quitting his
job. Then he mentioned faking a nervous breakdown related to his
divorce so he could take a leave of absence with FMLA and EAP
benefits. He also boasted about how he could get paid for being at
home.
(Pl. Resp. Ex. 10, ECF No. 37-10). He stated in his deposition that he,

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went to Vince [Dressler] after I thought about it for a while. . . . But I
sat on it and I didn’t want to say anything because I feared that, you
know, something bad would happen and Todd would get fired or
whatever. But it festered on me like a wound that – I have a problem,
a philosophical problem with doing somebody else’s work when I know
they’re sitting home sipping beers watching Oprah or The View or
whatever.
(Def. Mot. Summ. J. Ex. 9, at 22, ECF No. 27-9).
On the same day, Ion went into the clinic as requested by the clinic nurse.
His behavior while there made the nurses uncomfortable enough that three of them
went to Ogborn to tell him about it. (Def. Reply Ex. A 96, ECF No. 39-1). Ogborn
recorded their observations in a note to the file:
Todd came to the Refinery this morning to sign a GO 153 as
requested by HR. Upon arrival he refused to sign the form stating that
the EAP Rep (Tina) said that he didn’t need to sign the form. Todd
asked the Clinic personnel many HR questions regarding policies and
pay of which they didn’t know the answers to and repeatedly referred
him to HR.
...
The Clinic personnel also mentioned that Todd has been calling
for the last several days asking HR policy questions and FMLA
paperwork questions.
His demeanor, as described by the clinic employees, was
“passive/aggressive harassment” and he made the clinic employees feel
uncomfortable. They also said he appeared disgruntled and angry and
mentioned that he didn’t trust them. He was asked to leave but tried
to circumvent leaving by getting another clinic employee (Susan) to
take him to Tina’s office even after he was told that Tina wasn’t in
today. Susan wasn’t aware of the situation until after she got back
from Tina’s office with him.
Todd did eventually leave without signing the GO 153. He
asked for and took copies of [certain policies].
(Pl. Resp. Ex. 11, ECF No. 37-11).
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Ogborn later added a related matter to the note, after checking with the
receptionist about Ion’s visitor badge. The receptionist told him that “upon leaving
[Ion] walked past the receptionist without turning in the badge. [The receptionist]
had to stop him and request that he return the visitors badge. She mentioned that
he seem [sic] mad that he had to return the badge.” (Id.).
On March 26, Ion called in sick. He told Ogborn that he had submitted the
FMLA paperwork and would be out of work until April 27. (Pl. Resp. Ex. 14, ECF
No. 37-14).
On April 2, 2009, Ogborn sent a letter to Ion advising him that his
employment with Chevron had been terminated for “an abuse of management
constituting insubordination.” (Pl. Resp. Ex. 15, ECF No. 37-15). Ogborn explained
the events constituting insubordination:
On March 16, 2009, you were put on a Performance Improvement
Plan, received a 5 day suspension and given a final warning for poor
performance and behaviors, being absent without leave and
falsification of time records. When you left our meeting to go to your
office to collect some personal belongings, you also took Chevron
company equipment (laptop, blackberry, Chevron credit cards, etc.),
cleaned out all your personal belongings and indicated your anger to
your office mate. On March 25th we learned you had previously stated
to this same office mate that you would fake a nervous breakdown
related to your personal situation so you could get paid for being at
home. You haven’t returned to work since your suspension.
Based on your overall performance, the seriousness of the policy
violations and your behavior following the March 16th discussion,
Chevron management has decided to end your employment effective
immediately.
(Id.).

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Ion testified he did not recall any negative items being discussed during his
performance review. (Def. Mot. Summ. J. Ex. 1, at 37:19-24, ECF No. 27-1). He
testified that they went over the performance review on the computer, and the
information appearing on it now was not written at that time. (Id. at 24:4-7). He
further testified that some of the items had been discussed with him either at an
informal pre-review meeting, or after his review. (Id. at 25, 37). For example, he
recalled Ogborn calling him in for a meeting on March 11, 2009 about his
unexcused absences from the Refinery. (Id. at 92). And on March 16, he read and
signed the Performance Agreement and Attendance Improvement Plan, which
noted all of the same deficiencies. (Id. at 128; Pl. Resp. Ex. 4, at 3, ECF No. 37-4).
He testified he had “come to believe” that Chevron was in a hurry to terminate him
because they knew he might try to move to another state to be closer to his son at
the same time another of the three chemists would be out on maternity leave. (Def.
Mot. Summ. J. Ex. 1, at 148-49, ECF No. 27-1; Ex. 2, at 88-93, ECF No. 27-2). In
his view, in order to avoid this situation, Chevron found a way to terminate him
earlier and get his replacement in place prior to the planned maternity leave. (Id.).
FMLA RETALIATION
Ion argues that Chevron retaliated against him for applying for and
beginning FMLA leave, and improperly used his FMLA leave as a factor in
terminating him. He argues that Ogborn’s letter shows that his FMLA-protected
absence was at least a factor in his termination, and therefore the Court should
apply a mixed-motives analysis.
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“When a plaintiff alleges mixed-motive retaliation (i.e., that discrimination
was not the sole reason for discharge but was a motivating factor),” the court may
apply the “mixed-motive” framework. Crouch v. J.C. Penney Corp., Inc., 337 F.
App’x. 399, 401 (5th Cir. 2009). This framework provides:
(1) the employee must make a prima facie case of discrimination; (2)
the employer must articulate a legitimate, non-discriminatory reason
for the adverse employment action; and (3) the employee must offer
sufficient evidence to create a genuine issue of fact either that (a) the
employer's proffered reason is a pretext for discrimination, or-and
herein lies the modifying distinction-(b) that the employer's reason,
although true, is but one of the reasons for its conduct, another of
which was discrimination. If the employee proves that discrimination
was a motivating factor in the employment decision, the burden again
shifts to the employer, this time to prove that it would have taken the
same action despite the discriminatory animus.
Crouch, 337 F. App’x. at 401 (citing Richardson v. Monitronics Int'l, Inc., 434 F.3d
327, 333 (5th Cir. 2005)). The mixed-motive framework is applicable to FMLA
claims. Richardson, 434 F.3d at 334.
In its summary judgment motion, Chevron assumes that Ion has established
his prima facie case and moves on to the next step in the mixed-motive analysis by
articulating its legitimate, nondiscriminatory reasons for terminating him. Those
reasons were Ion’s unexcused absences from work, his poor performance while at
work, his statements to Peel regarding faking a nervous breakdown in order to
obtain leave, his removal of Chevron property from his office, and his behavior
toward the clinic employees.
These are all legitimate nondiscriminatory reasons for termination, and
accordingly, the burden shifts back to Ion to show by a preponderance of the
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evidence that the reasons presented by Chevron is merely a pretext for retaliation,
or that Chevron’s reasons, although true, are but some of the reasons for its
conduct, another of which was discrimination.
Ion contends he can show that Chevron’s true reason for terminating him
was retaliation for taking FMLA leave. First, the language in the termination
letter regarding insubordination could only refer to his refusal to sign the GO 153
form. Second, the termination letter states “You haven’t returned to work since
your suspension.” (Pl. Resp. Ex. 15, ECF No. 37-15).1
Ion contends that Chevron’s requirement that he sign the GO 153 form was a
violation of FMLA, because Chevron was not entitled to a release of his medical
information. Once Ion submitted a complete certification signed by the health care
provider, Chevron was prohibited from requesting additional information. 29
C.F.R. § 825.307. He connects the reference to insubordination to his refusal to sign
this form, but without any evidence. None of the Chevron officials involved
attached any significance to Ion’s refusal to sign the GO 153. Ogborn testified that
the matter was not part of the insubordination referred to in the termination letter.
(Def. Reply Ex. A 95, ECF No. 39-1). Johnette Watson testified that his refusal to
sign the form was not a reason he was terminated. (Def. Reply Ex. B 54, ECF No.
39-2). It did not matter to her whether he signed the form because he had been

1

Ion also claims that Chevron deviated from its progressive discipline
system in terminating him, but he provides no evidence of what the system consists
of. The Court is therefore unable to evaluate this argument.
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terminated. (Id.). In the Court’s view, Ion only speculates that his refusal to sign
the form was the insubordination referred to in the termination letter, when what
was actually considered to be insubordination was included in the letter. Ion’s
speculation about what Chevron meant is insufficient to show that one of Chevron’s
reasons for terminating him was FMLA retaliation. See Waggoner v. City of
Garland, 987 F. 2d 1160, 1164 (5th Cir. 1993).
Ion next notes Ogborn’s sentence in the termination letter that “You haven’t
returned to work since your suspension.” Ion contends this shows that his absence
was a reason for his termination. Ogborn testified that “You haven’t returned to
work since your suspension” was not a reason Ion was terminated, but simply a
statement of fact. (Def. Reply Ex. A 114, ECF No. 39-1). It appears in the letter at
the end of a narrative recounting the events leading up to the termination. (Pl.
Resp. Ex. 15, ECF No. 37-15).
The Court agrees that a reasonable jury could conclude that this mention of
Ion’s absence from work, in the litany of other complaints about his actions, showed
that Chevron considered FMLA protected leave in terminating him. Accordingly,
the burden again shifts to Chevron, this time to prove that it would have taken the
same action despite the discriminatory animus.
Chevron is able to show that it would have taken the same action against
Ion. As set out above, Chevron began the disciplinary process against Ion well
before he applied for FMLA leave. During Ion’s suspension, Ogborn was advised of
two other incidents that gave him cause for concern when James Peel and the clinic
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nurses approached him about Ion. Although Ion argues he did not say to Peel the
things Peel told Ogborn he did, nor did he do anything to make the nurses
uncomfortable, the proper inquiry is whether Chevron reasonably believed and
relied on the information received from these employees in good faith. See Jackson
v. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010). Ion provides no
evidence that Chevron’s reliance on the reports of these employees was in bad faith.
Thus, Chevron has shown that it would have terminated Ion even if he had not
applied for FMLA leave. Accordingly, Ion’s FMLA retaliation claim does not
present a question of material fact for the jury. Chevron’s motion for summary
judgment on this claim will be granted.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion for
Summary Judgment [27] filed by Chevron USA, Inc. is GRANTED. Plaintiff’s
claim of retaliation under the Family Medical Leave Act is DISMISSED WITH
PREJUDICE.
SO ORDERED AND ADJUDGED this the 11th day of April, 2012.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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