Back v. ConocoPhillps Co.

• Decision Date: 31 August 2012
• Docket Number: No. CIV 12-0261 JB/WDS,CIV 12-0261 JB/WDS
• Citation: Back v. ConocoPhillps Co., No. CIV 12-0261 JB/WDS (D. N.M. Aug 31, 2012)
• Parties: ROY BACK, Plaintiff, v. CONOCOPHILLPS COMPANY, Defendant.
• Court: U.S. District Court — District of New Mexico

ROY BACK, Plaintiff,

v.CONOCOPHILLPS COMPANY, Defendant.

No. CIV 12-0261 JB/WDS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: August 31, 2012

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Motion for Judgment on the Pleadings, filed May 9, 2012 (Doc. 6)("Motion"). The Court held a hearing on July 27, 2012. The primary issues are: (i) whether Plaintiff Roy Back has stated a claim for wrongful termination; (ii) whether Back has stated a claim for breach of an implied contract; (iii) whether Back has stated a claim for breach of the implied covenant of good faith and fair dealing; (iv) whether Back has stated a claim for a prima facie tort; and (v) whether the Court should permit Back to amend his Complaint for Wrongful Termination and/or Retaliatory Discharge, Breach of Implied Contract, Breach of Covenant of Good Faith and Fair Dealing, Prima Facie Tort, and Damages, filed March 13, 2012 (Doc. 1)("Complaint"). The Court will grant the Motion. The Court finds that Back fails to state a claim for wrongful termination, because Defendant ConocoPhillips Company did not terminate him in violation of a New Mexico public policy or in retaliation for furthering a public policy. The Court finds that Back has not stated a claim for breach of an implied contract, because he cannot identify any statements or conduct that create a reasonable expectation of continued employment. Because the breach of the implied covenant of good faith and fair dealing relies on there being an implied contract, the Court concludes that Back has failed to state a claim on thisbasis as well. Because Back fails to allege an intent to injure, he has not stated a claim for a prima facie tort. Finally, the Court will permit Back to amend his Complaint only with respect to Counts II and III.

FACTUAL BACKGROUND

The following is a summary of the facts in the Complaint. ConocoPhillips does not admit all of these allegations, but, for the purposes of this motion only, they are assumed to be true. ConocoPhillips admits and denies the Complaint's allegations as set forth in its Answer to Plaintiff's Complaint, filed April 25, 2012 (Doc. 3).

Back worked for ConocoPhillips from May, 1989, to January, 2010, at its Albuquerque, New Mexico terminal, and he became a full-time Terminal Operator in 1989. See Complaint ¶¶ 8-9, at 2. From 1999 to 2010, he held a variety of positions at the Albuquerque terminal, including: (i) Facility Manager; (ii) Lead Operator; and (iii) Terminal Operator. See Complaint ¶ 10, at 2. As a Terminal Operator, he worked with fellow Terminal Operator Ed Corley and under the supervision of Terminal Supervisor Lonnie Teal. See Complaint ¶ 12, at 2. Corley performed the weekly gain/loss report from December 10, 2009, to December 18, 2009, and Corley "never disclosed to Plaintiff that there had been a ninety-five (95) barrel loss to the Aviation Gasoline System." Complaint ¶ 17, at 3. On or about December 17, 2009, "it was discovered that Tank 102, which held aviation gas, had released gas from a crack in the coupling that was on the thermal relief piping from the suction line back to the tank." Complaint ¶ 15, at 2. Upon discovering the leak from a small thermal relief line, Back closed both valves to stop the leak, notified Teal, and opened the valve on the suction line from Tank 102 to relieve the pressure from the valve. See Complaint ¶ 18, at 3. Teal contacted an oil spill removal organization to clean up the leak. See Complaint ¶ 19, at 2. On or about December 28, 2009, while conducting closeouts, Back noted that an "eight-hundred-and-eighty (880) barrel loss from Tank 102 had been recorded at 12:00 p.m." Complaint ¶ 20, at 3. "By the time Plaintiff discovered the loss, it had grown to a fifteen hundred (1500) barrel loss," and he immediately informed Teal. Complaint ¶ 21, at 3. Back then noticed that a line had ruptured on Tank 105. See Complaint ¶ 22, at 3. Back and Corley contacted a trucking company to pump the pooled product and the oil spill removal organization to clean up the leaked product. See Complaint ¶ 23, at 3.

On January 1, 2010, an investigative team consisting of Kenneth Sheppard, Thomas Lackey, and Doug Johnson "began a brief investigation with a list of prepared questions focused on Plaintiff and Mr. Corley's alleged 'neglectful behavior.'" Complaint ¶ 24, at 3. "Subsequent to the two leaks and prior to terminating Plaintiff, Defendant conducted an investigation to determine the cause of the leaks." Complaint ¶ 26, at 3-4. ConocoPhillips informed Back and the New Mexico Department of Workforce Solutions that: (i) Back and Corley failed to follow terminal operational procedures; (ii) Back and Corley did not complete the terminal balance as required; (iii) Back and Corley were conducting the required daily balances during the week; (iv) Back and Corley failed to complete a month-to-date loss/gain as required under ConocoPhillips' procedures; and (v) the pipeline failure which led to the two leaks in Tank 102 "was due to water in the relief line which froze, expanded, and resulted in the fitting failure." Complaint ¶ 27, at 4. ConocoPhillips's investigative team did not include "a safety to assess the tanks confined safety entry, the exposure to high benzene levels, and exposure to leaded product." Complaint ¶ 28, at 4. ConocoPhillips made "pre-determined assumptions in asserting that Plaintiff and his co-workers were the sole cause of the releases from Tank 102," and "failed to address . . . other potential causes that may have caused the release." Complaint ¶¶ 29-30, at 4. The coupling for Tank 102 was case metal, which was inappropriate, and, before the Tank 102 releases, an internal audit revealed that the cast metal fittings were inadequate.See Complaint ¶¶ 31-32, at 4-5. On January 25, 2010, Division Manager Carrie Wild informed Back that ConocoPhillips was terminating him for cause based on his "neglectful behaviors," which led to and contributed to leaks between December 11, 2009 and December 28, 2009. Complaint ¶ 34, at 5. ConocoPhillips also terminated Corley and Teal on January 25, 2009. See Complaint ¶ 35, at 5.

When Back began working at the Albuquerque Terminal, Tanks 102 and 105 were "inactive," and, when ConocoPhillips determined to eliminate aviation gas from the facility, Tanks 102 and 105 were supposed to be emptied and cleaned. Complaint ¶¶ 37-39, at 5. Had the pipelines been purged in accordance with ConocoPhillips' Management of Change plan and its "policy procedure," there would not have been a gas release in December 2009. Complaint ¶¶ 41, 43, at 5-6. The "second spill was caused by water left in the lines from a tank cleaning project that was done by engineers." Complaint ¶ 44, at 6. Before the tank cleaning project, Back sent an electronic mail transmission to lead engineer Joe Cramer inquiring what ConocoPhillips planned to do about water or product left in the pipes to prevent a future leak, and Cramer responded that someone else would have to handle the line. See Complaint ¶ 45, at 6. "Had the pipelines been properly purged in July of 2009 when the tank cleaning project took place, both releases would have been prevented." Complaint ¶ 46, at 6. Back was never trained on the "month-to-date loss/gain policy," but ConocoPhillips terminated him, in part, because of his failure to follow the new month loss/gain procedure. Complaint ¶¶ 49-55, at 7. ConocoPhillips terminated Back, in part, "for allegedly filing a false report regarding actual fuel loss from the Tank release." Complaint ¶ 57, at 7. Teal, rather than Back, filed the allegedly false report regarding fuel loss. See Complaint ¶¶ 58-59, at 7-8. ConocoPhillips also terminated Back because he did not conduct daily operator rounds, but Teal and a District Director instructed him not to conduct operator rounds on the weekend. See Complaint¶¶ 61-62, at 8.

PROCEDURAL BACKGROUND

On March 13, 2012, Back filed his Complaint. See Doc. 1. In his Complaint, he asserts four causes of action: (i) Count I -- wrongful discharge based on terminating Back for failing to follow a company policy on which he had not been trained; (ii) Count II -- breach of an implied contract based on a promise and representation that created a reasonable expectation that ConocoPhillips would follow particular, defined, and established personnel procedures regarding Back's training and treatment; (iii) Count III -- breach of the covenant of good faith and fair dealing based on ConocoPhillips terminating Back for failing to follow a company policy on which he had not been trained; and (iv) Count IV -- prima facie tort based on ConocoPhillips discharging Back with malicious intent. See Complaint at 8-11. On April 25, 2012, ConocoPhillips filed its Answer to Plaintiff's Complaint. See Doc. 3 ("Answer"). In its Answer, ConocoPhillips asserts the following defenses: (i) that the Complaint fails to state a ground upon which relief can be granted; (ii) that Back's failure to mitigate his damages bars or limits his claims; (iii) that Back was an at-will employee and that his termination was "neither a violation of public policy, in violation of any implied covenant, in violation of any covenant of good faith and fair dealing, or that it was done with malicious intent"; and (iv) that Back has failed to allege facts sufficient to state claim for compensatory or punitive damages. Answer at 9-10.

On May 9, 2012, ConocoPhillips filed its Motion. See Doc. 6. ConocoPhillips moves, pursuant to rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings, based on the Complaint failing to state a claim for relief on its face. See Motion at 1. It asserts that New Mexico law provides that, absent an express contract to the contrary, generally, either an employee or employer can terminate employment at will. See Motion at 3 (citing Gormley v. Coca-ColaEnter., 135 N.M. 128, 85 P.3d 252 (Ct. App. 2004)). It recognizes...