Tenth Circuit Revives ADA, FMLA Claims Of Worker With Painful Spinal Condition

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Jay-Anne B. Casuga  

Jan. 22 — A maintenance mechanic for a chemical producer in Wyoming who took intermittent medical absences because of pain associated with a spinal condition and was fired because of a first-time safety violation and an argument with a co-worker has triable claims under the Family and Medical Leave Act and the Americans with Disabilities Act, the U.S. Court of Appeals for the Tenth Circuit ruled Jan. 21 (Smothers v. Solvay Chems., Inc., 2014 BL 15905, 10th Cir., No. 12-8013, 1/21/14).

Reversing summary judgment for Solvay Chemicals Inc., the Tenth Circuit said a material factual dispute exists as to whether the company's stated reasons for terminating Steven Smothers were pretexts for FMLA retaliation and ADA disability discrimination.

The court said the evidence shows that Solvay treated employees who were similarly situated to Smothers—but either did not have a disability or did not take FMLA leave—more favorably despite committing comparable safety violations.

In addition, the court pointed to evidence that Solvay did not conduct an adequate investigation into the dispute between Smothers and his co-worker and that company officials previously had given Smothers negative performance reviews and denied him a promotion because of his FMLA-protected absences.

However, the appeals court affirmed summary judgment to Solvay on Smothers's claim that his discharge constituted a breach of an implied employment contract under Wyoming law. Smothers did not show that Solvay violated the terms of its employee handbook when it fired him, the court said.

Judge Scott Matheson wrote the opinion, joined by Judges Carlos F. Lucero and Monroe G. McKay.

Worker Had Degenerative Disk Disease

According to the court, Smothers worked as a surface maintenance mechanic for Solvay and its corporate predecessor at a plant in Sweetwater County, Wyo., between 1990 and 2008.

Smothers sustained a neck injury in 1994, which led to him developing a degenerative disk disease in his spine that required three surgeries and a number of medical procedures between 1994 and 2004.

He claimed that the condition caused him “severe ongoing pain, including chronic neck pain, severe migraine headaches and lower back problems,” the court said.

The pain also affected Smothers's ability to sleep, causing him to wake up four to six times each night. He alleged that prescription medication for pain and sleep did not resolve the problem.

Solvay granted Smothers's request for intermittent FMLA leave because of his spinal condition. But managers and co-workers began complaining about Smothers's medical absences, with one superintendent attempting to pressure Smothers to switch to a different shift with a larger staff that arguably could “absorb” the absences.

Smothers received a negative rating on a performance evaluation and was denied a promotion because of his absences.

Employee Fired Via Group Decision

In August 2008, Smothers assisted in correcting a problem related to an “acid wash” procedure at the plant.

During the repairs, Smothers attempted to remove a damaged “spool piece” connected to an acid pump. Dan Mahaffey, a co-worker, suggested that Smothers first obtain formal clearance before doing so. Smothers did not heed Mahaffey's suggestion because he did not believe it was necessary.

Smothers proceeded to remove the part, but without first placing a physical lock on the corresponding pump valve as required by Solvay's “lock out” safety policies. Smothers claimed he thought his actions were permissible because he could see that the valve was closed and a related pipe had been disconnected.

“This background evidence lends further support to the inference that Solvay was frustrated with [Smothers's] use of FMLA leave and seized upon his safety violation and quarrel with [Mahaffey] as a pretext to fire him and avoid the inconvenience caused by his FMLA-protected absences,” Judge Matheson wrote.

Mahaffey later offered to help Smothers repair the damaged spool piece, but Smothers declined. The two proceeded to argue, and Smothers allegedly said he was “going to take a shit and wanted to know if [Mahaffey] wanted to watch him to see if he did that right.”

Thereafter, Mahaffey complained about Smothers to a supervisor, Erik Zimmerman, who spoke with Smothers about the incident and summarized their discussion.

Smothers admitted to removing the pump piece without first locking the pump valve, but alleged that Mahaffey had been “yelling” and “ranting” at him during their argument.

At a later meeting with three managers, Smothers attempted to provide his version of his dispute with Mahaffey, but one of the managers stopped him and said they were interested in the safety violation, not the argument.

Smothers apologized for not following Solvay's locking policy and promised it would not happen again.

The company suspended Smothers and continued its investigation, which involved Zimmerman obtaining a more detailed statement from Mahaffey at his home and at least three ultimate decision makers having personal discussions with Mahaffey. Officials did not have similar discussions with Smothers.

Thereafter, six Solvay managers made a group decision to fire Smothers, relying heavily on Mahaffey's allegations about their dispute as well as the safety violation.

Although the company's employee handbook provides a four-step progressive disciplinary process, it also affords Solvay discretion to fire an employee immediately for a serious offense, such as a safety violation.

Smothers brought various claims against Solvay in federal court, including FMLA retaliation, ADA discrimination, and breach of an implied contract under state law.

The U.S. District Court for the District of Wyoming granted summary judgment to Solvay, and Smothers appealed.

Similarly Situated Comparators Not Fired

Reversing, the Tenth Circuit ruled that a triable factual dispute exists as to whether's Solvay's stated reasons for firing Smothers were pretextual under the FMLA.

First, the court said, Smothers presented evidence that Solvay treated him more harshly than similarly situated employees who did not take FMLA leave but who committed comparable safety violations.

For example, Smothers identified two foremen who violated Solvay's lock out policy by “prying open a lock box to remove a key then energizing equipment while work was being done on it,” as well as a surface hourly worker who violated the same policy. Those three employees were not fired.

The court rejected Solvay's argument that those workers were not similarly situated to Smothers because they did not share the same decision makers.

It pointed out that “[f] ive of the six decision makers who fired [Smothers] also participated in at least one decision in which a similarly situated employee was treated more favorably after violating the same or comparable safety rules.”

The court acknowledged that there is “no clear legal rule as to how much overlap is needed among decision maker groups for employees to be similarly situated.”

However, a requirement for “absolute congruence would too easily enable employers to evade liability for violation of federal employment laws,” the court said.

“The district court erroneously rejected [Smothers's] pretext argument by insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary decision,” the appeals court held. “We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to [Smothers].

The court also found no merit to Solvay's argument that comparators identified by Smothers were not similarly situated because Smothers's offense was worse in that he “acted deliberately and violated a clear policy,” and the other workers had taken some safety precautions, apologized and promised not to repeat the same mistake.

The court said the evidence indicates that the other employees also deliberately violated the lock out policy, and that Smothers also took safety precautions before removing the spool piece, apologized and promised not to make the same error.

Inadequate Investigation of Co-Worker Dispute

Second, the Tenth Circuit said Solvay's inadequate investigation of the argument between Smothers and Mahaffey pointed to pretext.

The record shows that at least three decision makers personally spoke to Mahaffey about his version of the incident, and Zimmerman visited Mahaffey at his home for additional details, the court said. Company officials did not have similar discussions with Smothers, it added.

During one meeting, a manager prevented Smothers from speaking about the argument and focused instead on Smothers's safety violation.

Although the six decision makers who fired Smothers read Zimmerman's summary of his initial conversation with Smothers, that fact “did not make the investigation fair or adequate,” the court said.

“The decision makers ultimately relied on one-sided information and accepted [Mahaffey's] allegations and negative characterizations of [Smothers's] behavior,” it said. “If Solvay's decision makers had allowed [Smothers] to respond to [Mahaffey's] allegations before they fired him, we could perhaps accept that Solvay found [Mahaffey's] version of events more credible.”

Court Points to Previous Retaliatory Acts

Third, the Tenth Circuit found that evidence of previous negative comments and actions by Solvay managers related to Smothers's use of FMLA leave raised an inference of pretext.

The court said Solvay officials during deposition testimony acknowledged that managers and co-workers had “long-complained” about Smothers's FMLA absences.

Moreover, it said, the record shows that Solvay managers denied Smothers a promotion and gave him negative performance ratings based on those absences.

“This background evidence lends further support to the inference that Solvay was frustrated with [Smothers's] use of FMLA leave and seized upon his safety violation and quarrel with [Mahaffey] as a pretext to fire him and avoid the inconvenience caused by his FMLA-protected absences,” the court concluded.

Court Sends ADA Claim to Trial

The Tenth Circuit also revived Smothers's ADA discrimination claim, rejecting Solvay's argument that he did not have a disability within the meaning of the law.

The court said Smothers established that he was disabled under pre-ADA Amendments Act standards by showing that he had a neck and back condition that substantially limited his ability to perform the major life activity of sleeping, and that his attempted use of prescription medications did not correct his impairment.

Furthermore, the court said “the showing of pretext for purposes of the FMLA claim extends to the ADA claim.”

Breach of Implied Contract Claim Dismissed

However, the appeals court affirmed summary judgment to Solvay on Smothers's claim that the company breached an implied employment contract by firing him.

Under Wyoming law, the court explained, Smothers must show that Solvay violated the four-step disciplinary process in its employee handbook when it discharged him.

The court said he failed to do so, as those provisions “unambiguously” give Solvay the discretion to immediately fire an employee who violates safety rules.

“[Smothers] concedes that he violated a safety rule,” it said. “He has not shown how Solvay's decision to discharge him violated the terms of the Handbook.”

The Tenth Circuit added that the handbook provision “does not prohibit any particular motive,” nor does it require Solvay “to exercise its discretion consistently when responding to different employees' violations.”

As such, the court said its findings with respect to pretext for Smothers's FMLA and ADA claims have no bearing on his breach of implied contract claim.

Sharon M. Rose of Lavery & Rose in Evanston, Wyo., represented Smothers. Paul J. Hickey of Hickey & Evans in Cheyenne, Wyo., represented Solvay.

 

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Smothers_v_Solvay_Chemicals_Inc_Docket_No_1208013_10th_Cir_Feb_22.