Ion v. Chevron United States, Inc.

• Decision Date: 26 September 2013
• Docket Number: No. 12–60682.,12–60682.
• Citation: 731 F.3d 379
• Parties: Todd W. ION, Plaintiff–Appellant, v. CHEVRON USA, INCORPORATED, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

731 F.3d 379

Todd W. ION, Plaintiff–Appellant,

v.CHEVRON USA, INCORPORATED, Defendant–Appellee.

No. 12–60682.

United States Court of Appeals,Fifth Circuit.

Sept. 26, 2013.

Michael Farrell, Esq., Jackson, MS, for Plaintiff–Appellant.

Patrick Russell Buchanan, Esq., Brown Buchanan, P.A., Biloxi, MS, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ,¹ District Judge.

PHILIP R. MARTINEZ, District Judge:

Appellant Todd W. Ion, a former employee of Appellee Chevron USA, Inc., appeals the district court's grant of summary judgment in favor of Chevron. Ion alleges that Chevron terminated him in retaliation for exercising his rights under the Family Medical Leave Act (“FMLA”). The district court held that, while Ion had established the existence of a genuine dispute as to a material fact regarding Chevron's motivation, Chevron had established as a matter of law that it would have terminated Ion despite any retaliatory motive. We disagree and, therefore, REVERSE the district court's grant of summary judgment to Appellees and REMAND for further proceedings consistent with this opinion.

I. Facts and ProceedingsA. Background

Todd Ion began work at Chevron's Pascagoula Refinery in November 2006. As one of Chevron's three laboratory chemists, Ion's duties included, among other things, maintaining an assigned set of laboratory instruments. From 2008 to 2009, Ion's supervisors were Steve Ogborn, chief chemist; Vince Dressler, lead chemist; and Rich Kerns, laboratory supervisor.

In November 2008, Ion and his wife separated, and his wife moved to Kentucky with their five-year-old son. Ion reports having told Dressler about the separation and informing him that he would be traveling to Kentucky on weekends to visit his son.²B. Possible FMLA Leave

In late 2008, Ion learned of Chevron's leave policies for “employee[s] going through ‘a life-changing event’ like a divorce.” Ion was “hesitant” to ask for leave because it was a busy time at the chemistry lab, which had an audit scheduled for March 2009. He was also hesitant because he knew that another chemist, Pam Miller, would be taking maternity leave in August of 2009. Nevertheless, he alleges that he discussed his interest in potential leave with Dressler, including asking for advice about broaching the subject with Ogborn, who “could be difficult and had to be approached delicately.”

Ion testified that the chemistry lab held an all-day planning meeting on February 5, 2009. During a break, he claims that he told Ogborn that he had been granted custody of his son for six months. Ion further alleges having informed Ogborn that he had moved into a rental home much closer to the plant; that he had enrolled his son in a daycare close to the plant; that his son was crying, refusing to eat, and not adjusting well; and that he would be spending time with his son during lunchtime to help him adjust. Ion asked to meet with Ogborn on February 9 to discuss taking a leave from work, and, according to Ion, Ogborn agreed to meet. Additionally, Ion asked Ogborn for permission to leave the February 5 meeting to join his son for lunch, and Ion reports that Ogborn “readily gave [him] permission.” Ion left the meeting and returned while it was still in progress, which he asserts that “[e]verybody in the department saw.”

Ogborn, on the other hand, testified that he has no memory of a conversation with Ion on February 5, 2009. He also testified that he has no memory of Ion ever expressing an interest in taking leave.

According to Ion, Ogborn cancelled the February 9 meeting to discuss leave because he was too busy. Over the next two or three weeks, Ion says, Ogborn “cancelled another two meetings to discuss [his] request.” Finally, Ogborn allegedly told Ion that they would have to wait to discuss the possible leave until after the audit, which would end March 13, 2009.

C. Suspension

On March 16, 2009, Ion's supervisors met with him to inform him that he was being suspended for a five-day period. The supervisors explained to Ion that two major concerns had led them to suspend him temporarily—performance deficiencies and the excessive length of his lunch breaks—and they presented Ion with a “Performance Agreement and Attendance Improvement Plan” (“PIP/AIP”) meant to “address [his] performance deficiencies,” “specifically issues relating to work times and accountability.”

According to Ion's PIP/AIP, his alleged performance deficiencies consisted of the following: “[l]ack of urgency/responsiveness concerning [his] assigned instruments,” “not taking full responsibility and ownership of assigned instruments,” routine lack of availability “to come on-site to repair,” missed deadlines and incomplete work, and “lack of communication to ... customers” that impeded the efficient running of the laboratory. Ion's PIP/AIP states that these performance deficiencies were initially discussed with Ion at his December 2008 pre-review meeting and again at Ion's in-person performance review in January 2009. While Ion admits having discussed these concerns with his supervisors at the December 2008 meeting, he testified that he was “absolutely certain” that no negative items were discussed during his January 2009 performance review.³ He further claims that the list of deficiencies in his written performance evaluation, which was issued after his in-person performance review in January 2009,⁴ was not written at the time of his January review. He also testified that his performance rating for 2008 was never discussed with him, although it is listed on the performance evaluation.⁵

In addition to the alleged performance deficiencies, Ion's PIP/AIP lists “a pattern of abuse” regarding attendance as another reason for Ion's suspension. Ogborn and Dressler had first met with Ion about the length of his lunch breaks on March 11, 2009. Ogborn testified that he and Dressler noticed Ion's absences when they were unable, on several occasions, to contact him during the lunch hour. After reviewing Chevron's security-gate records, Ogborn concluded that Ion was “taking excessive periods of time for lunch.” At the March 11 meeting, according to Ion, Ogborn accused him of “stealing from the company” and told him that the breaks constituted being absent without leave, a “very serious violation of Chevron's policies.”

Ion admitted in his deposition that he had been taking more than thirty minutes for lunch. He testified that he was “not sure if [he] ever saw anything that said that [the requirement] was 30–minute lunches” for exempt salaried employees and that “[r]outinely,” “[e]verybody” took longer than thirty minutes. He also claims that he “regularly told Vince Dressler that he was off to the daycare” at lunchtime, and Dressler “never objected.” On March 12, Ion brought Ogborn the sign-in sheets from his son's daycare to substantiate his claims about where he was during his lunch breaks. Ogborn testified, “There were some days in which the log records matched up with the absences listed on the calendars. There were multi [sic] days in which they did not.” Although he reported having remaining questions about what Ion did during his lunch breaks, Ogborn did not investigate further.

Ion's PIP/AIP, issued on March 16, initiated a five-day suspension from March 16 through March 20, 2009. It concluded by warning Ion that “[f]ailure to comply with agreements will result in further disciplinary action up to and including termination” and that “if significant and sustainableprogress is not shown during this PIP or if a violation of ... Company policies occurs, the most likely outcome will be termination.”

Ion reports that he received the PIP/AIP and added his signature to indicate “that [he] received it,” although he told Ogborn that he did not agree with its contents. According to Ion, Ogborn told him there would be no discussion of leave while he was suspended. When Ion replied that he still wanted information about leave, Ogborn “got loud and hostile” and told Ion that he would have to ask the Employee Assistance Program (“EAP”) for help, since Ion would “not get it from [him].” Ion left the meeting.⁶

D. Initiating Leave

On March 19, Ion contacted Tina Taylor, an EAP counselor at Chevron. Ion claims that Taylor told him they could “pull [him] from the workplace and send [him] to a license[d] professional counselor for evaluation.” Taylor added, “Your situation is exactly what this program is for. We've got a program for you. FMLA leave might be available.” Taylor then scheduled an appointment for Ion with Dr. Ronald Berman, a licensed professional counselor in Mobile, Alabama. Ion reports that Taylor assured him that the sessions would be confidential and that he did not “have to sign a general medical release.” According to Ion, she also told him “to call in sick every day, and she would start the paperwork.”

Ion met with Dr. Berman “on March 19 or 20, 2009.” On March 23, the day Ion was scheduled to return to work, Dr. Berman signed FMLA form 380, “Certification of Health Care Provider,” certifying that Ion was suffering from a serious health condition as defined by the FMLA. According to the form, Ion was incapacitated and unable to perform work of any kind. Berman listed the medical facts supporting certification as “too much stress—can't focus on his job—single parent.” He reported the anticipated end date of the incapacitation as “undetermined.” He also indicated that Ion would need “therapy and eval[uation] for medication” and that Ion required an estimated twenty “additional treatments.” The form was faxed to Chevron on March 23 at 4:03 p.m., although it was not stamped “received” by Chevron until March 24.

On March 23, Ion called Ogborn to report that he was sick and under the care of an EAP counselor. Ogborn told Ion to report the absence to Chevron's nurses' station. In a “note to file” written on...