Russell v. Phillips 66 Co.

• Decision Date: 25 April 2016
• Docket Number: Case No. 15-CV-0087-CVE-PJC
• Citation: 32 A.D. Cases 1305,184 F.Supp.3d 1258
• Parties: Steven W. Russell, Plaintiff, v. Phillips 66 Company, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

184 F.Supp.3d 1258

32 A.D. Cases 1305

Steven W. Russell, Plaintiff,

v.Phillips 66 Company, Defendant.

Case No. 15-CV-0087-CVE-PJC

United States District Court, N.D. Oklahoma.

Signed April 25, 2016

Daniel E. Smolen, Smolen Smolen & Roytman PLLC, Tulsa, OK, for Plaintiff.

Steven Anthony Broussard, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, for Defendant.

OPINION AND ORDER

CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

Now before the Court is Defendant's Motion for Summary Judgment and Brief in Support (Dkt. # 32). Defendant requests summary judgment on plaintiff's claims under the Americans with Disabilities Act, 42 U.S.C. § 12010 et seq.(ADA), the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA), as well as plaintiff's state law claim of intentional infliction of emotional distress. Plaintiff responds that he was discriminated against because of his disability and he was retaliated against for taking FMLA leave, and he asks the Court to deny defendant's motion for summary judgment.

I.

Steven W. Russell was hired by Provesta Corporation, a subsidiary or predecessor company of Phillips 66 Company (Phillips), in 1989. Russell worked as a product development scientist performing quality control testing of food for about two years. Dkt. # 32-1, at 9-10. In the early 1990s, Russell was transferred to a corporate transportation job with Phillips Petroleum Company, and in 2002 he accepted a position as a senior analyst in the new ConocoPhillips organization. Dkt. # 36-2; Dkt. # 32-1, at 13. Russell took FMLA leave in 2009 due to a medical condition, but he returned to work and was not retaliated against for taking FMLA leave. Id. at 25, 126. The corporate transportation department was dissolved in 2010 and Russell was transferred to the finance department. Dkt. # 32-1, at 19. Russell was assigned to work as a marine freight auditor, and in this position Russell was responsible for overseeing payments to third-party vendors, auditing invoices, and working to resolve payment issues. Id. at 125.

Russell had a difficult time in his new position as a marine freight auditor and his supervisor, Michelle Schaffner, states that Russell's job performance did not meet her minimum expectations. Dkt. # 32-3. Russell repeatedly made errors such as duplicate payments, failing to follow instructions, improper journal entries, and making coding errors. Id. Russell argues that Schaffner failed to provide adequate guidance as he was learning his new job responsibilities.¹ Dkt. # 36, at 7. Russell received a rating of below expectations on his 2011 and 2012 performance evaluations. Dkt. # 32-3; Dkt. # 32-4. Russell wanted to find a job outside of the finance department because he did not feel that he would have an opportunity to advance, and he did not get along with one of his supervisors, Evan Zorn. Dkt. # 32-1, at 69-83. Russell had not observed Zorn criticize or discriminate against an employee for taking time off or because an employee was ill and, before September 14, 2012, Russell did not feel that he had been treated unfairly due to an actual or perceived disability. Id. at 80, 88.

On September 14, 2012, Schaffner noticed that Russell seemed upset or agitated and he was talking very fast, and Russell said that he needed to leave the office to catch his breath. Dkt. # 32-5, at 3. Russell testified in his deposition that he "lost it" and had a nervous breakdown, and he was told to go to his wife's office on a different floor. Dkt. # 32-1, at 87-90. Russell did not return to work following the incident and was placed on FMLA leave. Russell visited a physician, Bradley McClure, M.D., and Dr. McClure noted that he was treating Russell following a nervous breakdown. Dkt. # 32-7, at 1. Russell complained to Dr. McClure that he had been assigned to a new job in December 2010 and that he felt "overwhelmed from day 1." Id. Russell was clear that he did not want to return to his job in the finance department. Id. Russell visited Dr. McClure on December 27, 2012 and Russell reported that he was making test visits back to work but he would not go to his "usual building ‘where I worked with those idiots.’ " Id. at 2. Russell reported that he was anxious about reporting back to work and Russell identified a target date of March 1, 2013 to return to work. Id. Russell's FMLA leave had expired on December 12, 2012, but Phillips did not immediately require him to return to work. See Dkt. # 32-4, at 10. Dr. McClure saw Russell on February 6, 2013, and Dr. McClure made the following observation:

He says mood and anxiety wise he was doing well, until he had a significant setback 2-3 weeks ago, says he went back into work to check in there, found out they were holding his job and expected him to return to it (I don't know why he would not have expected this in the first place). Seems to be exhibiting avoidant traits. Anticipating retaliation from coworkers before he even returns, says he has to take an anxiety pill before even talking about this because it keys him up so bad. Says he wants me to give a recommendation to a job in a new dept. Says that job is not a good match for him.

Dkt. # 36-8, at 6.

Dr. McClure completed an employee health report stating that Russell could return to work but at a different position or in a different department. Dkt. # 32-8, at 4. He noted that Russell had a setback when he visited his workplace and that Russell was unlikely to return to his job in the finance department. Id. William C. Parsons, M.D., the chief medical officer for Phillips, received the report and reviewed Russell's medical records, and he found that the report failed to provide enough information for Dr. Parsons to determine what specific functional limitations Russell had that would prevent him from returning to his job in the finance department. Id. at 1. Dr. Parsons sent a letter to Russell and asked Russell to work with Dr. McClure to answer the following questions:

What is the nature, severity, and duration of the impairment as it relates to your current position and/or other positions that may or may not be available?

What specific activity or activities does the impairment limit?

To what extent does the impairment limit your ability to perform the activity or activities listed?

Id. at 7. On April 2, 2013, Phillips received a letter from Dr. McClure stating that Dr. McClure believed that it would be "therapeutic" for Russell to return to work, but work-related stress played a role in Russell's nervous breakdown and Russell felt overwhelmed by his job "due to the requirement to do moderately complicated math and accounting work." Id. at 6. Dr. McClure stated that "Russell likely has some degree of cognitive limitation that makes doing moderate level math and accounting work beyond his abilities" and returning to his job in the finance department "would be likely to trigger decomposition." Id. Dr. McClure recommended that Russell be permitted to return to work in a new position in a different department.

Dr. Parsons called Dr. McClure to clarify what physical or mental impairments Russell had that prevented him from returning to job as a marine freight auditor, and Dr. McClure explained that Russell had not acquired the "necessary skills through education or experience to successfully perform the job duties associated with the position that he held in September of 2012." Id. at 2. Dr. McClure denied that Russell had any type of brain damage or neurological impairment, and he did not recommend additional testing. Id. at 5. Dr. Parsons determined that Russell had no medical restrictions that would prevent him from working as a marine freight auditor or from working in the finance department. Id. at 2. However, he noted that Russell and Dr. McClure had concluded that Russell lacked the requisite skills to perform the math and accounting functions of the position of marine freight auditor. Id.

On May 13, 2013, Nikki Dickson, a human resources business partner for Phillips, sent Russell a letter advising Russell that he had been released to return to work without any medical restrictions and she stated that Russell had "indicated on more than one occasion that [he did] not intend or desire to return to [his] current position." Dkt. # 32-4, at 11. Dickson advised Russell that Phillips was filling his position due to business needs and it had posted a job opening for Russell's former position of marine freight auditor. Id. Phillips reviewed the vacant positions in the finance department to determine if there were any open jobs that did not require moderate level math or accounting skills, but there were no open positions that met this qualification. Id. Dickson advised Russell that he had seven weeks of unused vacation time, and he would be given seven weeks to apply for any vacant positions at Phillips that he believed were better suited for him, but if he did not obtain a new position in seven weeks his employment would be terminated. Id. Russell had been receiving short term disability benefits while he was on leave, and Dickson informed Russell that those payments would cease due to fact that plaintiff had been capable of returning to his job as a marine freight auditor since at least April 11, 2013. Id. Phillips provided Russell a laptop computer and the necessary information for him to access job postings, and he was permitted to apply for any open position within the company. Dkt. # 32-2, at 9. Russell had not found a new position by August 2, 2013 and Phillips gave him 30 more days to continue to look for a new job before his employment would officially be terminated. Id. at 12. Russell applied for at least five open positions, but he was not accepted for any of the jobs and he could not find a new position within Phillips. Dkt. # 32-9 at 1; Dkt. # 32-10, at 1; Dkt. # 32-11, at 1. The persons responsible for making the hiring decisions determined that plaintiff either lacked the necessary qualifications or that another applicant was...