Manna v. Phillips 66 Company
Filing
68
OPINION AND ORDER by Judge Terence Kern ; remanding case (terminates case) ; granting 49 Motion for Summary Judgment (Re: 53 Response Brief (ERISA), 48 Opening Brief (ERISA), 58 Reply ) (Documents Terminated: 60 MOTION in Limine ) (lmc, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
(1) WILLIAM MANNA,
Plaintiff,
v.
(1) PHILLIPS 66 COMPANY and
(2) PHILLIPS 66 SEVERANCE PAY
PLAN,
Defendants.
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Case No. 16-CV-500-TCK-FHM
OPINION AND ORDER
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 Background1
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
1
The following facts are undisputed or as set forth by Plaintiff in his Response to
Phillips’ Motion for Summary Judgment (Doc. 51).
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.)
2
Plaintiff disputes that he was removed from the “lead” position based on work
performance or that Siegfried was in his chain of command or was his supervisor.
2
B.
Plaintiff’s 2014 Performance Review and Discipline3
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
3
Plaintiff filed a Motion in Limine (Doc. 60) seeking the exclusion of, inter alia, “[a]ny
testimony, documents, other evidence, or reference [to] anything other than attendance as a
reason [for] his termination.” (Pl.’s Mot. in Limine 4.) Plaintiff contends such evidence is not
relevant because the notice of termination he was given only mentions Plaintiff’s attendance
record, and argues that the probative value of such evidence is substantially outweighed by the
danger of unfair prejudice to Plaintiff. However, as Phillips notes in its opposition to the Motion
in Limine, Plaintiff himself has suggested several different theories in this case as to why he was
terminated. The Court will consider such evidence where it may be relevant, as Plaintiff has not
shown that any unfair prejudice substantially outweighs the probative value of evidence of other
reason(s) for his termination.
4
Plaintiff admits this fact but contends it is not material.
3
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
5
According to Plaintiff, this letter was not produced in discovery.
4
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
5
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.
6
The US 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 US 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
6
In their briefs on this motion, both parties also address a claim of interference under
FMLA. The First Amended Complaint does not clearly assert such a claim; however, because
both parties have addressed an FMLA interference claim, for the purpose of summary judgment
the Court will assume that this claim was pleaded. In his response brief, Plaintiff confessed his
claim for interference under FMLA. Accordingly, Phillips is entitled to summary judgment on
this claim.
7
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
8
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 activities
of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in paragraph (3)).
9
42 U.S.C. § 12102(1)(A)-(C). Regardless of which type of “disability” is at issue, the term must be
“construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms
of this chapter.” Id. § 12102(4)(A).
In this case, Plaintiff admits that he was not actually impaired during the relevant time period.
However, he asserts that he is disabled under § 12102(1)(C) because Phillips mistakenly regarded him
as having a substance-related health issue.7 Under the “regarded as” prong, a person is considered
disabled if “the individual establishes that he or she has been subjected to an action . . . because of an
actual or perceived physical or mental impairment whether or not the impairment limits or is perceived
to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). Accordingly, unlike §§
12102(1)(A) and (B), a “regarded as” claim pursuant to § 12102(1)(C) does not require the plaintiff
to show he was perceived by the employer to be limited in a major life activity.8 The only other
7
In the First Amended Complaint, Plaintiff also alleges that he had a record of an
impairment as defined in §12102(1)(B). However, by failing to argue in his response brief that
he has a record of impairment, Plaintiff appears to have abandoned this theory. The Court also
notes that Plaintiff has not presented evidence of a record of disability.
8
In 2008, the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”)
removed the requirement that an impairment “substantially limit[] a major life activity” from the
“regarded as” claim. See Pub. L. No. 110–325, 122 Stat. 3553; see also Wolfe v. Postmaster
Gen., 488 F. App’x 465, 468 (11th Cir. 2012) (“Because of that amendment, a plaintiff need
demonstrate only that the employer regarded him as being impaired, not that the employer
believed the impairment prevented the plaintiff from performing a major life activity.”).
Confusingly, Plaintiff argues in his brief that Phillips regarded him as being substantially limited
in working, standing and speaking. Compounding the confusion, in its reply brief, Phillips cites
the pre-ADAAA construction of “regarded as” that required a plaintiff to prove his or her
impairment substantially limited or was perceived to limit major life activities. See Adair v. City
of Muskogee, 823 F.3d 1297, 1305-06 (10th Cir. 2016) (noting that under ADAAA, “the
employer need only regard the employee as being impaired, whether or not the employer also
believed that the impairment prevented the employee from being able to perform a major life
activity. . . Unlike pre-ADAAA plaintiffs, an ADAAA plaintiff no longer needs to plead and
prove that the actual or perceived impairment ‘substantially limited one or more major life
activities.’”); see also Keneipp v. MVM, Inc., No. 15-CV-565-JED, 2017 WL 3197732, at *3
(N.D. Okla. July 27, 2017) (citing Adair).
10
limitation on the definition of “impairment,” for purposes of § 12102(1)(C), is that a condition may
not be deemed an impairment if it is “transitory and minor.” 42 U.S.C. § 12102(3)(B).
Plaintiff contends he was disabled because Phillips mistakenly believed that he had a
substance-related health problem. “[T]he ADA protects employees who are erroneously regarded as
being current illegal drug users.” Nielsen v. Moroni Feed Co., 849 F.3d 604, 610 (10th Cir. 1998).
Phillips admits that on July 15, 2015, its employees observed that Plaintiff appeared impaired, having
slurred speech and difficulty standing. Parsons observed Plaintiff had slowed affect and slurred
speech that day.9 Although Plaintiff’s blood and urine tests were negative, Parsons believed that
Plaintiff might be suffering from an unspecified medical condition or under the influence of some
substance. Ginyovszky was concerned that there “was maybe another reason why he seemed
impaired” and that he may have a physical or mental “health issue.” (Ginyovszky Dep. at 35.) In
addition, Schroeder suggested Plaintiff needed to “come clean” and accused him of defeating tests for
drugs and alcohol. Therefore, Plaintiff has shown that a reasonable jury could find that Phillips
considered Plaintiff to be impaired.
The Court would normally consider next the second and third elements of a prima facie claim,
i.e., whether Plaintiff qualifies for the job and whether he was terminated because of a perceived
disability. However, Plaintiff’s response brief fails to set forth the basic elements of a claim of ADA
discrimination or to directly address the second and third prongs of a prima facie ADA discrimination
claim. Because Phillips does not challenge Plaintiff’s qualifications to perform his job, the Court
assumes for the purpose of this analysis that Plaintiff satisfies the second prima facie element.
9
Plaintiff denies both observations in Phillips’s statement of facts. However, because
Plaintiff must show that Phillips perceived him to be impaired, the Court assumes for the
purpose of this analysis that certain employees perceived Plaintiff to have difficulty standing and
speaking on July 15, 2015.
11
However, by failing to address the causation element, Plaintiff has failed to establish a prima facie
claim of discrimination.
Even assuming arguendo that Plaintiff could establish the prima facie elements had he
addressed them in his response brief, the Court finds that Plaintiff nonetheless has not met his burden
to show that Phillips’ proffered legitimate, nondiscriminatory reason for Plaintiff’s termination was
pretextual. Phillips has produced evidence that in May of 2015, Plaintiff was warned for late arrivals
and unreported absences; that on July 15, 2015 he did not arrive at the Houston office until after noon;
and that on his final performance review, he was rated “Below Expectations.” Therefore, Phillips has
articulated legitimate, non-discriminatory reasons–i.e., unsatisfactory job performance, including
attendance–for terminating Plaintiff. Plaintiff has not met his burden to show these reasons are
pretextual. “To support an inference of pretext . . . a plaintiff . . . must come forward with evidence
that the employer didn’t really believe its proffered reasons for action and thus may have been
pursuing a hidden discriminatory agenda.” Johnson v. Weld City, 594 F.3d 1202, 1211 (10th Cir.
2010). While Plaintiff cites evidence to suggest his performance was not poor enough to warrant
termination, he has cited no evidence at all that Phillips’ proffered reason was pretextual. Therefore,
even if Plaintiff had established a prima facie claim of discrimination, he has not met his burden to
support an inference of pretext by a preponderance of the evidence.
In summary, Plaintiff has failed to establish a prima facie claim of disability discrimination
under ADA because he failed to present evidence showing causation. However, even if Plaintiff had
established causation, he has failed to rebut Phillips’ evidence that he was terminated based on
attendance and performance, and not for any discriminatory reason. Accordingly, Phillips is entitled
to summary judgment on this claim.
12
C.
Oklahoma Testing Act
Plaintiff contends he is entitled to damages under under the Oklahoma Testing Act (“OTA”)
because he was improperly tested and discharged for suspicion of substance use. See OKLA. STAT.
tit. 40, §§ 551 et seq. (2012). The OTA imposes certain obligations on “employers who choose to
conduct drug or alcohol testing of job applicants or persons employed in this state.” Id. at § 553(B).
Under the OTA, “[a]ny person aggrieved by a willful violation of the [OTA] may institute a civil
action in a court of competent jurisdiction within one (1) year of the alleged willful violation.” Id. at
§ 563(A). “A willful violation of the [OTA] requires proof by the preponderance of the evidence that
the employer had a specific intent to violate the [OTA].” Id.
The OTA does not expressly prohibit an employer from terminating an employee it suspects
of using illegal drugs or alcohol after the individual tests negative. However, because OTA prescribes
conduct for both the employer and employee and permits an action for lost income damages, Plaintiff
argues that he can recover damages under OTA for conduct that is not expressly prohibited. Plaintiff
relies on Jones v. State ex rel. Office of Juvenile Affairs, 268 P.3d 72 (2011), in which an individual
was permitted to proceed with an action seeking lost wages after her termination. The employee had
had two negative drug tests before her termination. However, it is far from clear in the facts set forth
in Jones that the negative tests were connected to the employee’s termination. Moreover, the court
there focused on the narrow question of whether an employee was required to exhaust administrative
remedies under Oklahoma law. Indeed, the court expressly disavowed any opinion on the merits of
the plaintiff’s cause of action. Id. at 79. Thus, Jones lends little, if any, support to Plaintiff’s theory
of recovery under OTA.
13
Plaintiff contends Phillips violated its own alcohol and drug testing policy by ordering
additional drug and alcohol tests after Plaintiff left Houston on July 15, 2015, and failing to produce
a required Supervisor Checklist for the second set of tests. Plaintiff argues that Phillips’s violation
of its own policy shows that it willfully violated OTA. However, Phillips’s alleged violation of its
drug testing policy by testing Plaintiff is not the cause of Plaintiff’s lost income; rather, Plaintiff’s
alleged loss of income is due to his termination. In Oklahoma, “an employer may discharge an
employee for good cause, for no cause or even for cause morally wrong, without being thereby guilty
of legal wrong.” Burk v. K-Mart Corp., 770 P.2d 24, 26 (Okla. 1989). Plaintiff has not cited any
applicable exception to this rule under OTA. Accordingly, Phillips is entitled to summary judgment
on this claim.
D.
FMLA Retaliation Claim
The FMLA “provides that eligible employees of certain employers have the right to take
unpaid medical leave for a period of up to twelve work weeks in any twelve month period for a serious
health condition as defined by the Act.” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955,
959 (10th Cir. 2002). A “serious health condition” under FMLA “means an illness, injury, impairment
or physical or mental condition that involves inpatient care . . . or continuing treatment by a health
care provider.” 29 C.F.R. § 825.113(a). The FMLA prohibits an employer from discriminating
against an employee for exercising rights under the FMLA. 29 U.S.C. § 2615(a)(2). FMLA
retaliation claims are subject to the burden-shifting framework of McDonnell-Douglas. Metzler v.
Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006). To make out a prima facie
FMLA retaliation claim, Plaintiff must show that (1) he engaged in protected FMLA activity; (2)
14
Phillips took an action that a reasonable employee would have found materially adverse; and (3) there
exists a causal connection between the protected activity and the adverse action. Id.
Plaintiff contends he was terminated for his leave of absence in July 2015 and that his leave
was protected because under FMLA the employer, not the employee, determines whether an absence
is designated as FMLA leave. However, Plaintiff has cited no evidence of a serious health condition
entitling him to protection under FMLA. Indeed, Plaintiff denies that he was suffering from any
impairment or illness at any time during his leave of absence. (Manna Dep., Defs.’ Ex. 1, at 17:19-22
(Q: “Just to be clear, are you claiming that at any time during 2015 or 2014 that you had a disability
or you had an impairment?” A: “No.”); id. at 19:13-21:11.) Moreover, it is undisputed that Plaintiff
did not seek to exercise any rights under FMLA. (See id. at 20:6-15 (stating that Plaintiff was
“confused on why I was even put on FMLA in the first place when I never even asked”); id. at 157:210 (Q: “Now, I think that you got this, you hadn’t really requested FMLA, you just got this form. Is
that right?” A: “Right. Which was–yeah, I did not request it and just received it and was kind of
confused about it because, you know, it says on this date you informed us I need to leave beginning
on–well no, I didn’t inform them, they told me. You know, it was the other way.”); id. at 158:7-9 (“I
didn’t even know why my FMLA request was approved when I didn’t even ask for the FMLA in the
first place.”); see also id. at 157:16 (“I don’t think I ever sought FMLA.”).)
Accordingly, Plaintiff has not established a genuine issue of fact as to whether he engaged in
protected FMLA activity because he did not have a serious health condition at the time of his leave
15
and did not seek to exercise any rights protected by FMLA.10 Accordingly, Plaintiff cannot make out
a prima facie claim of FMLA retaliation, and Phillips is entitled to summary judgment on this claim.
E.
Confessed Claims
Plaintiff has confessed his claims for discrimination by association under ADA and for
interference under FMLA. Accordingly, Phillips is entitled to summary judgment on those claims.
III.
ERISA Claim
A.
Background11
Plaintiff seeks severance pay benefits under the Phillips 66 Severance Pay Plan (the “Plan”),
which is governed by ERISA. Phillips is the primary employer, sponsor, fiduciary, and administrator
of the Plan, and was so at the time of Plaintiff’s termination of employment. The Plan provides, in
relevant part, as follows:
Section 2 – Definitions . . .
“Layoff or Laid Off” –The terms “Layoff or Laid Off” apply if (1) and (2) are met and if (3)
does not apply to the termination:
(1) . . . (a) the Company gives the Participant Notice of Layoff;
10
Plaintiff also has failed to cite evidence to support the third element, i.e., causation.
As explained above, Plaintiff admittedly never sought to exercise any right under FMLA.
Plaintiff has not shown how a jury might reasonably infer causation where an employer chose of
its own accord to place an employee on FMLA leave, only to terminate the same employee after
he returned from leave.
11
Except as otherwise noted, the factual background set forth supra Part I is
incorporated by reference herein. Additional facts material to Plaintiff’s claim for ERISA
benefits are set forth here. ERISA claims challenging the denial of benefits are typically replete
with disputed questions of material fact which must be resolved by reference to the
administrative record or remanded to the plan administrator for further proceedings.
Consequently, the summary judgment standard of Rule 56 does not apply in review of ERISA
benefits decisions, and the facts considered in this analysis need not be undisputed. See Tinkler
v. Level 3 Commc’ns LLC, No. 07-CV-259-CVE-FHM, 2008 WL 199901, at *7 (N.D. Okla. Jan.
22, 2008).
16
(b) The Participant’s employment is involuntarily terminated with the Company and
with all members of the Employer following such Notice of Layoff, on a date
determined by the Company; and
(c) The facts are as described in (i), (ii) or (iii) below:
(i) the Participant is not a Tier 1 Executive Employee and the termination of
employment is prior to a Change of Control and is caused by a reduction in
force, a job elimination, a Corporate Event or is designated as a “Layoff” by
the Chief Executive Officer of Phillips 66 Company, or
(ii) the Participant is a Tier 1 Executive Employee and the termination of
employment is prior to a Change in Control and is designated as a “Layoff” by
the Chief Executive Officer of Phillips 66 Company; or
(iii) the termination of employment is on or after a Change in Control and is
either caused by a reduction in force, a job elimination, a Corporate Event or
designated as a “Layoff” by the Chief Executive Officer of Phillips 66
Company. . . . ;
(3) Provided, however, whether or not the Company has given a Participant Notice of Layoff,
the Participant’s termination of employment shall not be considered a “Layoff” if any of the
following apply:
(a) the Participant resigns . . . ;
(b) the Participant’s employment is terminated because he failed to accept . . . a job
offered by an Employer . . . ;
(c) the Participant’s employment is terminated because he failed to accept . . . a job
offered by an Employer . . . ;
(d) the Participant’s employment is terminated because he failed to accept . . . a
transfer job . . . ;
(e) The Participant accepts any transfer job . . . ; or
(f) The Participant transfers to a member of the ConocoPhillips controlled group[.]
(Administrative Record (“AR”), Doc. 40, at 4-5.)
Section 4. . . .
17
B. Except as provided in Section 4(C) of the Plan, a Participant is eligible to receive benefits
under the Plan if he has all Qualifying Circumstances and does not have a Disqualifying
Circumstance.
(1) A Participant has all Qualifying Circumstances if:
(a) He has a Layoff on or after May 1, 2012;
(b) He is Employee on the Date of Layoff; and
(c) He has completed or will complete one Year of Service as of the Date of
Layoff.
(2) A Participant has a Disqualifying Circumstance, even if he has been given a Notice
of Layoff, if:
...
(e) he is terminated for cause as indicated by the fact that his termination is
recorded in the Company’s or Employer’s personnel system as a “discharge”
or similar classification.
(Id. at 8-9.)
The Plan Administrator is authorized “to interpret and administer the Plan, including the
resolution of ambiguities, inconsistencies and omissions” and “to determine benefit eligibility . . . and
to make the initial findings of fact and resolution of disputes or claims.” (Id. at 14.) The Plan also
provides that the Benefits Committee (the “Committee”) has similar authority and the power to review
and resolve disputes or claims which may arise under the Plan, following review and initial resolution
by the Plan Administrator. (Id. at 13.)
Plaintiff submitted a request for severance pay benefits under the Plan via a letter dated
January 11, 2017. (Id. at 150-52.) By letter dated January 30, 2017, the Plan Administrator denied
Plaintiff’s claim (“Administrator’s Decision”). (Id. at 166-67.) On March 27, 2017 Plaintiff appealed
the denial. (Id. at 193-97.) In support of his appeal, Plaintiff submitted documents and testimonial
18
evidence, including deposition testimony from Tarter, email correspondence after between Plaintiff
and Ms. Ginyovszky regarding notice of leave from office, and Plaintiff’s “Performance Agreements”
from 2005, 2006, and 2008 through 2013. Plaintiff also requested the following information from the
Plan:
1. Identification of specific days in 2014 through his lay off in August 2015 when Plaintiff
failed to arrive until after 9:00 am.;
2. Identification of Plaintiff’s absences from work, full or partial, after the May 21, 2015
Warning in which Defendant did not have prior notice of his absence;
3. Supporting documentation; and
4. Confirmation of the elimination of the Strategic Sourcing Group in Bartlesville.
(Id. at 196.) By correspondence dated May 12, 2017 (the “Committee Decision”), the Committee
denied the appeal. (Id. at 284-85.) Plaintiff contends the Plan did not provide any of the requested
information, respond to his questions, produce supporting documents for tardiness or absences, or
address additional facts supporting his appeal.
It is undisputed that Plaintiff exhausted his
administrative remedies as required under ERISA.
B.
Legal Standard
Plaintiff seeks review of the decisions of the Plan Administrator and the Committee pursuant
to Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). A denial of benefits challenged under
§ 1132(a)(1)(B) is subject to de novo review “unless the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the
plan.” Firestone Tire & Rubber Co., 489 U.S. 101, 116 (1989) (emphasis added). In the latter case,
a more deferential standard is appropriate. Id. at 110-11 (explaining that “ERISA abounds with
language and terminology of trust law” and that “a deferential standard of review [is] appropriate
19
when a trustee exercises discretionary powers”). It is undisputed that the Plan authorizes the Plan
Administrator to interpret and administer the plan and to determine benefit eligibility, and therefore
the more deferential arbitrary and capricious standard is applicable.
However, if a conflict of interest is present, “that conflict must be weighed as a facto[r] in
determining whether there is an abuse of discretion.” Id. at 115 (citing Restatement (Second) of Trusts
§ 187, cmt. d (1959).) Plaintiff contends the Plan Administrator operated under a conflict of interest
because the Plan is self-funded by Phillips, Phillips appointed and compensated the Plan
Administrator, and the Plan had access to the value of Plaintiff’s benefit claim during its review. The
Plan disputes that these elements are sufficient to warrant greater scrutiny. However, the level of
deference given to a plan administrator’s decision may be “decrease[d] in proportion to the seriousness
of the conflict,” creating “in effect a sliding scale of judicial review.” Fought v. Unum Life Ins. Co.
of Am., 379 F.3d 997, 1044 (10th Cir. 2004) (internal citation and quotation omitted). “The
importance [courts] attach to the existence of a conflict of interest is proportionate to the likelihood
that the conflict affected the benefits decision.” Graham v. Hartford Life & Acc. Ins. Co., 589 F.3d
1345, 1358 (10th Cir. 2009). Therefore, the Court finds it appropriate here to “take account of several
different considerations of which a conflict of interest is one.” Met. Life Ins. Co. v. Glenn, 554 U.S.
105, 110 (2008).
C.
Analysis
Plaintiff contends that his job was eliminated, and therefore his termination was a “Layoff”
as defined in the Plan, rather than a termination for cause, entitling him to severance pay under the
Plan. An employee benefit plan must afford a reasonable opportunity for a full and fair review of the
denial of benefits to any participant. 29 C.F.R. § 2560.503-1(h)(2)(iv). The Committee Decision
20
states Plaintiff was not laid off but instead was terminated for his “continued failures following the
[May 21, 2015] written warning.” (AR at 284.) The Committee Decision states in general terms that
Plaintiff “failed to demonstrate any significant improvement in [his] performance and did not
demonstrate the commitment necessary to ensure the timely completion of several projects and goals”
after being given the May Warning. (Id.) However, it cites no documentation of this alleged failure,
either with regard to work performance, timely completion of projects, or hours.
Both the
Administrator’s Decision and Committee Decision cite Plaintiff’s 2014 performance review, but
because Phillips never issued a 2015 mid-year review to Plaintiff before terminating him, the Plan may
have placed undue weight on the 2014 review. Moreover, the record lacks evidence of noncompliance
with the May Warning other than on July 14 and 15, 2015, when Plaintiff was traveling to or in
Houston. Significantly, neither the Administrator’s Decision nor the Committee Decision cites or
refers to any item in the record dated later than May 21, 2015 indicating that Plaintiff failed to comply
with the May Warning. Both decisions also fail to acknowledge that Ginyovsky, worked in the
Houston office and did not keep time records for Plaintiff’s work hours or require Plaintiff to report
time, and fail to address that Plaintiff was not placed on a formal performance improvement plan
before being terminated.
Furthermore, the Committee Decision ignores evidence in the record that Plaintiff complied
with the May Warning. In his March 27, 2017 appeal letter, Plaintiff submitted documentation
including communications informing Ginyovsky of times when Plaintiff would be out of the office.
The Committee Decision does not acknowledge or otherwise address these records. In addition, the
Committee failed to respond to Plaintiff’s requests for information, including dates on which Plaintiff
was allegedly absent without notice and any supporting documentation.
21
The Plan also contends Plaintiff did not qualify for severance pay because Plaintiff did not
receive a written Notice of Layoff, as required by the Plan. To the extent the Plan seeks to rely on
formal designations or actions entirely within the employer’s control, the Court finds greater scrutiny
under the “sliding scale” is warranted. The Court is unwilling to find Plaintiff ineligible for benefits
under the Plan based only on circumstances under Phillips’ control. Additionally, the Committee
Decision is not based on the absence of a formal Notice of Layoff but on the determination that
Plaintiff was terminated for cause. In noting that Plaintiff did not receive a Notice of Layoff, the
Committee emphasized that it was because Plaintiff was terminated for cause that he did not receive
a Notice of Layoff. However, as noted, the record lacks adequate evidence supporting the employer’s
justification for terminating Plaintiff. Accordingly, Plaintiff’s supposed termination for cause does
not itself excuse the employer’s failure to provide Plaintiff with a Notice of Layoff.
For these reasons, the Plan’s decision to deny Plaintiff’s claim for severance pay was arbitrary
and capricious. The Administrator’s Decision and Committee Decision therefore are reversed, and
Plaintiff’s claim for benefits is remanded to the Plan for further findings and explanation.
IV.
Conclusion
Defendant Phillips 66 Company’s Motion for Summary Judgment (Doc. 49) is GRANTED.
An order of judgment will be entered separately.
Pursuant to Section 502(a)(1)(B) of ERISA, the denial of Plaintiff’s claim for severance pay
benefits under the Plan is REVERSED AND REMANDED for further proceedings consistent with
this Opinion and Order.
SO ORDERED this 17th day of January, 2018.
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