Lottinger v. Shell Oil Co.

Decision Date16 May 2001
Docket NumberNo. CIV. A. H-99-2103.,CIV. A. H-99-2103.
PartiesKenneth R. LOTTINGER, Plaintiff, v. SHELL OIL COMPANY and Shell Oil Products Company, Defendants.
CourtU.S. District Court — Southern District of Texas

John Hooshik Kim, Gallagher Young et al., Houston, TX, for Kenneth R Lottinger, plaintiffs.

L Christopher Butler, Shell Oil Company, Houston, TX, for Shell Oil Company, Shell Oil Products Company, defendants.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendants Shell Oil Company and Shell Oil Products Company's (collectively "Shell") Motion for Summary Judgment (# 13). Shell seeks summary judgment on Plaintiff Kenneth R. Lottinger's ("Lottinger") claims for disability discrimination under the Texas Commission on Human Rights Act ("TCHRA"), TEX. LAB. CODE ANN. §§ 21.001-21.128, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12113; his claims for violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654, and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132; and his common law claim for intentional infliction of emotional distress. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment is warranted.

I. Background

Lottinger was hired by Shell in January 1980 to work in Shell's Retail Marketing Division. While employed by Shell, he held various positions within the company. At the time of his termination, he was a senior administrative representative in the Marketing Real Estate Division.

Lottinger contends that he was diagnosed with depression in 1995 and subsequently began abusing alcohol. According to Lottinger, in March 1996, he began attending Alcoholics Anonymous ("AA") meetings to assist with combating his alcoholism. In June 1996, Lottinger informed Shell that he was abusing alcohol, and Shell arranged for his admission to an outpatient program called "The Right Step," located in downtown Houston. Soon thereafter, he entered The Right Step's residential rehabilitation program after determining that he needed more than outpatient care. While there, Shell's Employee Assistance Program ("EAP") Administrator, Bud Peterson ("Peterson"), visited him to inquire about the status of his recovery. Lottinger remained in inpatient care for approximately thirty days.

Lottinger does not recall the exact date of his release from The Right Step. According to Lottinger, on July 22, 1996, after receiving approximately twenty-four hours' notice, he was called to attend a meeting with Peterson, Claude Hudson ("Hudson"), the head of the Real Estate Division, and Lou Wilson ("Wilson") a representative of the Human Resources Department. During the meeting, Lottinger signed a "return-to-work" agreement that conditioned his continued employment on, among other things, abstention from alcohol abuse, verified attendance at three AA meetings per week, and meetings with substance-abuse treatment counselors until July 22, 1997, as well as random drug tests for forty-eight months. The agreement further provided that non-compliance would likely result in his termination. Lottinger claims that, because of his state of mind at the time, he did not fully understand what he was signing and that the document was unduly vague as to how often he was to meet with counselors. He states, however, "At that point I was willing to do anything to keep my job. That's why I signed the letter." The agreement also stated, "Since you self-identified your substance abuse problem and completed a company approved treatment and rehabilitation program, you are permitted a second such self-referral." Lottinger maintains that it was unreasonable for Shell to allow him only one additional self-referral should he experience further problems. He also contends that it was inappropriate to require him to obtain the signatures of AA chairpersons on certificates verifying his attendance at meetings because it made it appear that he was being forced to be there and delayed him from joining fellow AA members directly after the meetings.

Lottinger asserts that two to three days after his return to Shell, his supervisor, Lloyd Logan ("Logan"), informed him that his job title had been changed from coordinator to team leader. He contends that, over time, Logan removed some of his prior duties, added extensive clerical duties to his responsibilities, and ultimately changed his job title to that of a team member. He also complains that, in addition to his regular proposal work, he was required to develop a real estate database, which involved pulling numerous files and entering data on a spreadsheet. There is no indication that his compensation or benefits were ever reduced during the time period at issue. Lottinger also maintains that he was embarrassed by the manner in which the random drug tests were conducted, as he had to leave his department without notice and did not feel that he could explain where he was going to his co-workers. He complains that Shell "could have been a little more flexible about the timing of it as opposed to just `you have to report now.'"

In August 1996, Lottinger relapsed into alcohol abuse and, after notifying Shell, he was readmitted into The Right Step residential program. Following his release, during a meeting with Hudson and Peterson on September 9, 1996, Lottinger executed another "return-to-work" agreement. He concedes that he read over the agreement and that Hudson and Peterson went over the agreement with him before he signed it.

In May 1997, Lottinger again relapsed into alcohol abuse. He maintains that he became suicidal and that his wife had him admitted into the psychiatric unit at St. Joseph's Hospital in Houston, where he remained for seven days. Lottinger contends that, after being released from the hospital, Peterson gave him the impression that he had been discharged, telling him that he would have to await final word, although there is no indication that Shell stopped paying his salary at that point in time. After two or three weeks at home, he started drinking again and was readmitted into The Right Step residential program for four to five days.

According to Lottinger, Peterson and some counselors at Shell informed him that he was required to remain in a lock-up facility known as "A Better Way" for one year in order to be considered for reemployment. Lottinger states that he checked himself into A Better Way and remained there until June 30, 1997, when Shell officially terminated his employment. According to Lottinger, during the meeting at which he was terminated, he was first told that the reason for his discharge was that he had failed to attend sufficient AA meetings and did not submit the required paperwork. He contends that when he explained to Hudson and another Human Resources representative that he was, in fact, in compliance with the meeting requirements to the extent possible given his recent hospitalization and that he simply had not had the opportunity to submit his paperwork, the Shell representatives went into the hallway, returned a short time later, and said, "We have decided to fire you because you drank again." Lottinger returned to The Better Way for a few months, and as of June 1, 1999, the date of his deposition, he reported experiencing no further alcohol abuse problems, although alcoholism remained "an ongoing daily battle."

On June 22, 1998, Lottinger filed suit in the 189th Judicial District Court of Harris County, Texas, seeking relief from Shell for disability discrimination under the TCHRA and intentional infliction of emotional distress. On June 25, 1999, he amended his petition to include federal law claims under the ADA, the FMLA, and ERISA. On July 1, 1999, Shell removed the action to federal court. In his amended petition, Lottinger alleges that while employed in the Real Estate Division, he suffered from depression and alcoholism. He further contends that, after giving notice of his alcohol abuse, Shell engaged in retaliatory, harassing, and discriminatory conduct and disparate treatment toward him in an attempt to force him to resign. Lottinger also claims that Shell is liable for intentional infliction of emotional distress because, after the company became aware of his alcohol problem, he was subjected to two reductions in job title, undesirable assignments, criticism, random drug tests, and, ultimately, termination.

On February 15, 2001, Shell filed its motion for summary judgment, asserting that Lottinger is time-barred from bringing his cause of action under the TCHRA because he failed to file a charge of discrimination within 180 days of his dismissal and failed to file the instant lawsuit within sixty days of receipt of his notice of right to sue. Shell also argues that Lottinger is not "disabled" as that term is defined in the TCHRA and the ADA. Shell further asserts that Lottinger can produce no evidence that Shell discriminated against him in violation of the FMLA. Additionally, Shell contends that Lottinger's termination was not a pretext to deny him an ERISA-protected benefit. Finally, Shell maintains that the actions leading to Lottinger's termination did not rise to the level of extreme and outrageous conduct, as necessary for recovery for intentional infliction of emotional distress.

II. Analysis
A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The parties seeking summary judgment bear the...

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