Sidlo v. Millercoors, LLC, 030718 FED10, 17-1000
|Opinion Judge:||Gregory A. Phillips Circuit Judge|
|Party Name:||JAN SIDLO, Plaintiff - Appellant, v. MILLERCOORS, LLC, Defendant-Appellee.|
|Judge Panel:||Before TYMKOVICH, Chief Judge, PHILLIPS, and MORITZ, Circuit Judges.|
|Case Date:||March 07, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
D.C. No. 1:15-CV-01672-RPM (D. Colo.)
Before TYMKOVICH, Chief Judge, PHILLIPS, and MORITZ, Circuit Judges.
ORDER AND JUDGMENT [*]
Gregory A. Phillips Circuit Judge
Jan Sidlo, a man of Slovakian descent who was terminated from his job as a mechanic and operating engineer for MillerCoors, LLC, brought suit alleging discrimination based on national origin and age in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, wrongful termination in violation of Colorado public policy, and breach of contract. The district court granted summary judgment for MillerCoors on all claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Sidlo was born in Bratislava in what is now Slovakia. In March 2002, he was hired by MillerCoors's predecessor company as a "Mechanic/Operating Engineer." Appellant's App. at 51. His employment there was governed by the "Supplemental Policy: Golden Manufacturing Operators, Maintenance Employees and Technicians" (Supplemental Policy). Id. at 216. Under the terms of the policy, MillerCoors terminated Sidlo three times. He was reinstated through the internal appeals process after the first two terminations.2 This suit concerns his third and final termination in 2013.
The first major disciplinary action against Sidlo occurred in August 2012, when MillerCoors terminated him for allegedly stealing company property and for driving a company vehicle off company property.3 Sidlo appealed the August 2012 termination, and so reduced the termination to an eighty-hour suspension. MillerCoors reinstated him in October 2012.4
Sidlo alleges that when he returned from his 2012 suspension, he "was subjected to heightened scrutiny and hostility at work." Appellant's Opening Br. at 20. He describes six different discriminatory actions after his return: (1) a comment about his national origin, (2) interference with his computer access, (3) refusal to provide a voucher to replace scratched safety glasses, (4) singling him out to perform certain duties, (5) discrimination and harassment during the litigation, and (6) retaliation for reporting another employee for not wearing protective gear. We describe these events in turn.
First, Sidlo alleges that his supervisor, Greg Miller, said that he would "not tolerate any foreigner bullshit"6 and that Sidlo was "walking on thin ice and had better watch every step." Appellant's Opening Br. at 6. Sidlo describes this conversation as "disrespectful" and alleges he later attempted to talk to Human Resources about the incident. Appellant's App. at 83-84.
Second, on returning from that same 2012 suspension, Sidlo couldn't access the computer system. He claims to have raised this problem to multiple managers, and yet "nobody did anything about it." Id. at 87. Sidlo says that he told Miller about the computer-access issue, but that nothing happened.
MillerCoors offered evidence, including a two-week e-mail chain between Miller and the company's IT department, that Miller had attempted to fix Sidlo's computer problem. Miller stated in one such e-mail: "We need to know what the status of this is! The employee needs to have access to a computer to do his job." Id. at 124. But Sidlo frames the lack of computer access as discrimination, and argues that it interfered with his ability to do his job.
Third, after his 2012 return, Sidlo contends someone scratched the prescription safety glasses that MillerCoors had provided to him through a voucher program. He said his glasses looked "like somebody run the sandpaper over it or something." Id. at 86. But employees generally receive a voucher for new glasses only once a year. To qualify for a second voucher within the same year, the employee needs to show that the damage resulted from workplace use, not from employee negligence. He requested that Miller sign paperwork enabling the company to provide a second voucher for a new pair of prescription safety glasses. And after not hearing from Miller, Sidlo reached out to safety-department employee, Hugh Garrison, who ultimately approved the glasses, but not until after Sidlo received a warning for not wearing safety glasses.
Fourth, in January 2013, MillerCoors terminated Sidlo because of insubordination. Miller claims that he asked Sidlo to investigate a steam leak and that Sidlo didn't follow up with Miller or fix the problem. This led to Sidlo's termination. Sidlo appealed, which reduced the termination to a final warning, with a forty-eight-hour suspension. Sidlo now alleges that "Miller singled [out] Mr. Sidlo" to repair the steam leak. Appellant's Opening Br. at 20.
Fifth, Sidlo alleges that this litigation shows his mistreatment by MillerCoors, arguing that "[t]he national origin discrimination and harassment even permeates into this litigation as becomes evident in the context of the questions posited by counsel for MillerCoors during his deposition." Id. at 21.7
And sixth, in May 2013, Sidlo reported another hourly employee, Mike Lopez, for not wearing the correct personal protective equipment. Lopez was disciplined as a result. Sidlo later alleges that his September 2013 termination was a form of retaliation for reporting Lopez.
After these incidents, in September 2013, the events culminating in Sidlo's final termination took place. He was assigned to perform a procedure known as the Lockout/Tagout on an ammonia system on September 23. This is a safety procedure designed to ensure that dangerous machines are properly shut off before the completion of maintenance or servicing work, in this case, an overhaul of the ammonia system. The piece of equipment to be replaced is locked out and isolated, and then tagged to notify others that the piece of equipment will be replaced.
MillerCoors employees changed the plan for the Lockout/Tagout procedure before Sidlo performed it. But the day after Sidlo completed the Lockout/Tagout procedure, the crew working on the system noticed that the procedure hadn't been correctly completed.
Brian Kostrna, a utilities employee, reported a "near miss." Any employee can report a near miss. A near miss does not have a precise definition; employees can report any type of safety concern.
Randy Rea, the manager of Sidlo's department, learned of the near miss and that Sidlo had performed the Lockout/Tagout procedure that precipitated the incident. In his capacity as manager, Rea began an investigation into the near miss, and Process Safety Engineer Ron Henry completed an in-depth investigation. The incident-investigation form named four other utilities operators as being involved with the incident. Henry concluded that human factors caused the near miss and that the operator (Sidlo) hadn't followed the plan or complied with the corrections to the plan. He also identified two failings by the maintenance team.
About a week later, a second incident took place. In another area of the facility, a hose carrying ammonia was connected to a vent line instead of a pump-out station, resulting in ammonia being released into the atmosphere. The release triggered a vent alarm and a partial evacuation of the brewery. MillerCoors blamed Sidlo for the incident. Sidlo, in turn, complained about other employees touching and mislabeling the equipment. He now alleges that the mislabeling was intentional.
MillerCoors categorized the ammonia release as an "incident, " which prompted an investigation, this time by Rea, Sidlo's manager. During his investigation, Rea received reports that Sidlo had retaliated against Kostrna for reporting the near miss by telling Kostrna he would no longer work with him.
On October 2, 2013, after the investigation, MillerCoors terminated Sidlo's employment for (1) gross misconduct or negligence; (2) harassing, abusing, assaulting, or threatening another person by threatening not to work with Kostrna; and (3) insubordination. Sidlo appealed. Typically, the appeals process includes a pre-appeal meeting to discuss in general terms what arguments and evidence the parties will present at the appeal, though the Supplemental Policy does not mention any need for one. But MillerCoors didn't hold such a meeting and instead proceeded straight to the...
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