Leaton v. Refinery

• Decision Date: 15 July 2011
• Docket Number: CV 09-0382 WPL/CG
• Parties: ELLIS LEATON, Plaintiff, v. NAVAJO REFINERY, Defendant.
• Court: U.S. District Court — District of New Mexico

ELLIS LEATON, Plaintiff,

v.NAVAJO REFINERY, Defendant.

CV 09-0382 WPL/CG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Date: July 15, 2011

MEMORANDUM OPINION AND ORDER

Ellis Leaton brought a lawsuit against Navajo Refining Company, LLC ("Navajo Refinery") claiming age discrimination and retaliation for statutorily protected conduct. (Doc. 1.) Navajo Refinery's Motion for Summary Judgment seeks summary judgment on both claims brought by Leaton. (Doc. 71.) Considering the evidence in the light most favorable to Leaton, R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133, 1142 (10th Cir. 2009) (quotation omitted), because this federal case is precluded by a prior state court judgment, I will grant Navajo Refinery's Motion for Summary Judgment. Navajo Refinery is also entitled to judgment as a matter of law on the alternative ground that there is no genuine issue of material fact as to the reason for Leaton's termination.

FACTUAL AND PROCEDURAL BACKGROUND

As noted in a previous order, this Court is the third forum in which Leaton has sought to redress the termination of his employment with Navajo Refinery. For that reason, the proceduralhistory is somewhat complex.¹

Navajo Refinery operates a crude oil refinery in Artesia, New Mexico. (Doc. 71 at 2; Doc. 71 Ex. A ¶¶ 2-3.) There, crude oil is refined into flammable products under conditions of high heat and pressure. (Id. at ¶ 3.) Operators are responsible for running each unit of the refinery. (Doc. 71 at 3; Doc. 71 Ex. A at ¶ 4.) The operators are members of the International Union of Operating Engineers ("the union"), with whom Navajo Refinery has a collective bargaining agreement ("CBA"). (Doc. 71 at 3; see also Doc. 18 Ex. A.) Operators are promoted through various levels at Navajo Refinery in compliance with the seniority provisions of the CBA.² (Doc. 18 Ex. A at 2-4.)

Leaton, born September 28, 1961 (Doc. 74 at 2), was employed by Navajo Refinery from August of 1998 through November of 2007. (Doc. 71 at 3; Doc. 71 Ex. B at ¶ 3.) Leaton began his employment in an entry-level position, and he progressed through several steps to eventually become a board operator in November of 2006. (Doc. 71 at 3; Doc. 71 Ex. B at ¶ 3.) The central responsibility of board operators is to monitor the conditions of the refinery's vessels through computers at the control board.³ (Doc. 71 at 3; Doc. 71 Ex. H at 45:9-16.) When necessary, board operators are responsible for making adjustments to the vessels, either via computer or by providing feedback to outside operators for manual adjustments. (Doc. 71 at 3; Doc. 71 Ex. A at ¶ 4.) If no adjustment is made and pressure becomes too great in the vessel, a safety relief valve willautomatically open and emit a flare. (Doc. 71 at 3; Doc. 71 Ex. A at ¶ 5.) A flare indicates a hazardous condition; when one occurs, Navajo Refinery must prepare an environmental report and submit it to a regulatory agency. (Doc. 71 at 3; Doc. 71 Ex. A at ¶ 5.) Board operators are also responsible for a variety of other tasks, including obtaining tank gauge numbers by telephone and logging them. (Doc. 71 Ex. H at 75:6-16; Doc. 71 Ex. I at 158:1-20.)

Leaton was employed by Navajo Refinery for nine years, and during that time, he was diagnosed with diabetes. (Doc. 1 at ¶ 10.) Leaton asserts that diabetes impacted his ability to focus, concentrate, be decisive, communicate, walk, and sleep. (Id.; Doc. 71 Ex. D at 68:7-72:23.) Within a few years of his diagnosis, Leaton began to receive written reprimands and counseling due to alleged rule violations. (See Doc. 71 Ex. C.) On August 27, 2004, Navajo Refinery sent Leaton a letter describing incidents that had occurred over the previous year and offering him training, medical evaluation, or other services because of asserted concern about Leaton's ability to perform his job. (Id.) Subsequently, Navajo Refinery allowed Leaton to take three months of medical leave for treatment of his diabetes. (Doc. 26 at 2.) After Leaton returned to work, in April of 2006, Navajo Refinery sent him a letter indicating that the company's doctor believed that he posed a safety risk because he was noncompliant with his diabetes stabilization regimen. (Doc. 71 Ex. E.) The letter stated that control of the diabetic condition was an ongoing job requirement and that the letter constituted Leaton's "final warning for compliance." (Id.)

The facts surrounding the most recent set of complaints purportedly regarding Leaton's work performance are somewhat disputed. Navajo Refinery contends that these problems began in late 2006. (Doc. 76 at 1.) During the month of December, then-Assistant Operations Manager RobertBoans⁴ received complaints about Leaton sleeping on the job on two separate occasions. (Doc. 76 at 1; Doc. 76 Ex. A.1-A.4.) Leaton did not contest that he was found asleep. (Doc. 76 Ex. A at ¶ 4, Ex. B at 122:12.) One complaint was submitted by Ricky Garcia on December 27, 2006. (Doc. 76 Ex. A.1.) Garcia stated that, while reading an incident report on October 31, 2006, he noticed that Leaton was asleep. (Id.) Three additional complaints were submitted by a co-worker, Stephen Pinson, an immediate supervisor, Terry Hill, and a shift foreman, David Hammond, on December 22, 2006. (Doc. 76 Exs. A.2, A.3 & A.4.) Hill noticed Leaton asleep while operating the control board on December 21, 2006, reported Leaton's state to Hammond, and awakened Leaton. (Id.) As a result of these complaints, Boans prepared a counseling notice on December 28, 2006, emphasizing the significant safety risk posed by sleeping on the job and recommending that Leaton receive a warning. (Doc. 76 at C.)

Leaton contends that the most recent set of problems began in early 2007 and resulted from him reporting to the union that his immediate supervisor, then-A-operator Ismael Perez,⁵ was sleeping on the job and that Boans took no action. (Doc. 74 at 2-3.) Both Perez and Boans deny that Perez was asleep. (Doc. 76 at 2; Doc. 76 Ex. D.) Leaton alleges that Perez was sitting next to him on December 30, 2006 while Leaton ran the control board (Doc. 76 Ex. F at 82:14-15), and that Boans entered the room, found Perez asleep, and shook the chair to awaken him. (Doc. 76 Ex. B at 122:13-17.) Leaton felt that Perez was treated unequally because he, unlike Leaton, did not receive a written warning. (Id.) Prior to that time, Leaton and Perez had a good relationship. (Doc. 74 at 3; Doc. 71 Ex. D at 122:4-13.) Leaton asserts that his problems at work constituted ongoing harassmentby Perez and Boans and only began after he made the report to the union. (Doc. 74 at 3.)

The parties do not dispute that Leaton received a counseling notice on February 28, 2007 listing a number of complaints and issues. (Doc. 71 Ex. G.) The notice listed six separate incidents that occurred between January 11, 2007 and February 11, 2007, including a vessel left with a high level for over an hour, an open valve, failure to assist an employee being trained to work as a board operator, and another incident of sleeping while operating the control board.⁶ (Id.) All six incidents were considered violations of work rules. (Id.) The notice indicated that it, along with Leaton's comments, would be presented to the Refinery Manager. (Id.) Leaton provided no comments. (Id.)

Leaton now argues that all listed issues aside from the sleeping incident evidence discrimination against him because they were neither his fault nor his responsibility and because they were reported by Perez. (See Doc. 75 Ex. A at 156:19-23.) Leaton states that he made no correction to the vessel with the high level because Boans told him that there was a problem with the vessel that he could do nothing to fix, though he admits that Perez was able to take over the control board and alleviate the high level. (Doc. 75 Ex. A at 147.1-25, 148.1-15.) With regard to the open valve, Leaton asserts that he did not have the authority to do what was necessary to close the valve; he instead instructed the operator as to what action to take. (Doc. 75 Ex. A at 154:15-155:7, 156:5-11.) He asserts that each problem aside from the sleeping incident, was reported in retaliation for Leaton's report to the union. (Doc. 71 Ex. H at 131:13-132:17.)

Yet another incident of Leaton sleeping on the job occurred approximately ten days after the February 11 incident, on February 20 or 21, 2007. (Doc. 76 Ex. A.6.) Sam Lewis, Leaton's co-worker, found Leaton asleep at the control board. (Id.) Lewis reported that he opened the door to the control room and found Leaton breathing loudly and sitting with his head down and eyes shut. (Id.)

As a result of the February 2007 counseling notice, Navajo Refinery placed Leaton on a ten-day suspension in March of 2007. (Doc. 76 Ex. H.) The letter suspending Leaton indicated that the disciplinary action constituted Navajo Refinery's "Last and Final Warning" for Leaton to correct his performance issues. (Doc. 76 Ex. H at 1 (emphasis omitted)). It further warned that "[a]ny further performance problems or incidences of sleeping on the job will result in immediate termination of your employment." (Id.)

Leaton had no further problems reported for several months. For a portion of that time, Leaton was on medical leave after undergoing gastric bypass surgery. (Doc. 26 at 3.) Following his return, Leaton states that his problems with Perez and Boans continued. Three incidents occurred in October of 2007 while Leaton was in charge of the control board, each of which resulted in a tower flaring.

On October 8, 2007, a tower controlled by the board that Leaton was monitoring accumulated too much pressure and flared. (Doc. 71 Ex. A at ¶ 6.) The diagram of the tower's pressure shows that the pressure was increasing and decreasing rapidly over a large range for a period of hours. (Doc. 75 Ex. A.2.) On October 20, 2007, the same tower, again under the supervision of Leaton, accumulated too much pressure and flared. (Doc. 75 Ex. A at ¶ 8.)...