Smothers v. Solvay Chems., Inc.

• Citation: 740 F.3d 530
• Decision Date: 21 January 2014
• Docket Number: No. 12–8013.,12–8013.
• Parties: Steven SMOTHERS, Plaintiff–Appellant, v. SOLVAY CHEMICALS, INC., a Delaware corporation, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

740 F.3d 530

Steven SMOTHERS, Plaintiff–Appellant,

v.SOLVAY CHEMICALS, INC., a Delaware corporation, Defendants–Appellees.

No. 12–8013.

United States Court of Appeals,

Tenth Circuit.

Jan. 21, 2014.

Sharon M. Rose, Lavery & Rose, L.P., Evanston, WY, appearing for Plaintiff–Appellant.

Paul J. Hickey (Kristi M. Radosevich, with him on the brief), Hickey & Evans, LLP, Cheyenne, WY, appearing for Defendant–Appellee.

Before LUCERO, McKAY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Steven Smothers worked for Solvay Chemical, Inc. (“Solvay”) for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker. Mr. Smothers contends the company's true motivations were retaliation for taking medical leave from work, in violation of the Family Medical Leave Act (“FMLA”), and discrimination on the basis of his medical disability, in violation of the Americans with Disabilities Act (“ADA”).

He sued Solvay. The district court granted summary judgment for Solvay on his FMLA and ADA claims and on his state law claim for breach of implied contract. It dismissed the remaining state law claims as moot based on its resolution of Mr. Smother's breach of contract claim. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse on the FMLA and ADA claims and affirm on the state law breach of contract claim.

I. BACKGROUND

A. Factual History

Because this case arises from an appeal of summary judgment, we present “the evidence, and draw reasonable inferences therefrom, in the light most favorable to” Mr. Smothers as the non-moving party. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1167 n.2 (10th Cir.2006).

1. Mr. Smothers' work and medical history

Mr. Smothers was a surface maintenance mechanic in Solvay's trona mine ¹ in Sweetwater County, Wyoming, from 1990 until August 27, 2008. ²

Mr. Smothers injured his neck in 1994 and developed a degenerative disc disease in his spine. His medical condition remained serious, requiring three surgeries to his neck between 1999 and 2004, as well as numerous other medical procedures. This caused severe ongoing pain, including chronic neck pain, severe migraine headaches, and lower back problems. For several years, Mr. Smothers traveled to Salt Lake City for medical appointments with a specialist. In medical records from these visits, Mr. Smothers' treating physician repeatedly noted that his pain continued and even increased in spite of various medical treatments, causing him to “miss[ ] a lot of work” and to be “quite miserable.” Aplt. Appx., Vol. II at 543. At times the pain was so severe that Mr. Smothers “would basically be unable to work” without pain treatments. Id. at 549.

Pain also affected Mr. Smothers' sleep. He was often able to sleep only four hours a night, though he sometimes reported sleeping as many as six hours. Mr. Smothers consistently reported being awakened by his pain four to six times each night. His surgeries and various other medical treatments, including prescriptions for pain, failed to resolve his difficulty sleeping. His doctor prescribed various sleeping aids, which also failed to fully resolve his sleep problems.

Mr. Smothers sought and was granted FMLA leave from Solvay for intermittent absences caused by this condition. Solvay considered him an excellent mechanic with strong job knowledge who “always [did] top knotch work [sic] ... always [got] along with everyone,” took “pride in his work ethics and [was] always very reliable.” Aplt. Appx., Vol. II at 508–09, 493. But managers and coworkers complained about his FMLA-protected absences. Production Superintendent Melvin Wallendorff pressured him to change from his graveyard shift to a day shift, where a larger staff could more easily absorb his absences without requiring the company to incur overtime costs. This shift change would have reduced Mr. Smothers' income by about $7,000 a year. A Human Resources representative advised Mr. Wallendorff that forcing Mr. Smothers to make the change would violate FMLA. Mr. Wallendorff relented, but he and others continued to complain about Mr. Smothers' absences.

Mr. Wallendorff and Rick Wehrle, Mr. Smothers' direct supervisor, gave Mr. Smothers a negative rating on his performance evaluation because of his absenteeism. Sometime in 2005 or 2006, Mr. Smothers applied for a promotion and was told he was being rejected because of his absences. Mr. Smothers did not raise any FMLA challenge or complaint about the lost promotion.

2. The hydrochloric acid leak incident

Hydrochloric acid is a dangerous but widely-used commercial chemical that may harm humans if it is inhaled or ingested or touches the skin or the eyes. About every six months, the Solvay plant uses hydrochloric acid to remove build up inside its equipment through an “acid wash” process, which takes 24 hours. Aplt. Appx., Vol. II at 399.

The Solvay graveyard crew was conducting an acid wash on August 19, 2008. At about 1:00 a.m., Control Board Operator Shane Youngburg recognized a problem with the acid flow. He remotely shut down the acid pump and notified Plant Operator Charles Brown.³ Mr. Brown investigated and found a rupture in a “line”—i.e., a plastic pipe—running between an acid tank and a pump that transferred the acid into the plant. Acid was “spraying out” from the ruptured line into the surrounding containment area—a pit enclosed by a six-foot concrete wall. Id.

Mr. Brown donned protective gear and began a four-hour clean-up process, draining several inches of acid from the bottom of the containment area and using a fire hose to wash away the remaining acid. When it was safe to do so, Mr. Brown entered the containment area and closed the suction valve to stop the flow of acid, which involved physically turning a wheel about the size of a steering wheel. He “thorough[ly]” cleaned the valves and equipment and confirmed that no acid was flowing from the broken line. Id. at 401. Lead Foreman Alex Loredo was present and assisted during part of the clean-up process.

Around this time, Mr. Brown and Mr. Loredo notified Mr. Smothers that “they were going to get a line break permit and a lock out” and that the pump was “ready to be worked on.” Id. at 311. The “line break” permit or form referred to a Solvay safety policy requiring employees to obtain formal clearance before “breaking”—i.e., disconnecting or otherwise opening—a line containing hot water, pressure, or any chemical. Aplt. Appx., Vol. II at 497–98; id. Vol. I at 236. The permit certifies that employees have completed a checklist of precautions that are necessary before a line can be safely disconnected. Checklist items include ensuring the employees involved have sufficient training and safety equipment, that all equipment is de-energized, and that any valves are closed. The checklist also includes a “lock out” procedure, in which an employee places physical locks and/or chains on all valves and equipment to prevent them from opening or re-energizing. Id. Vol. II at 498; id. Vol. I at 236.

Mr. Smothers approached the acid tank and saw that a damaged suction flange or “spool piece” connected to the acid pump had caused the problem. Aplt. Br. at 8. Mr. Smothers prepared to remove the spool piece when Dan Mahaffey, another mechanic working nearby on a different repair, suggested that Mr. Smothers should wait for a line break permit. Mr. Smothers disagreed, saying the line break permit was not required because the line was already broken. Mr. Mahaffey said “fine” and left. Aplt. Appx., Vol. II at 531.

Mr. Smothers then removed the broken spool piece and took it to the maintenance shop to repair it. Although doing this did not necessarily violate Solvay's line break policy, Mr. Smothers now concedes that removing the spool piece before completing the lock out—i.e., placing a physical lock on the pump valve—was still a violation of Solvay's safety policies. Id. at 463; see also Aplt. Br. at 8.

When Mr. Smothers went to the maintenance shop, Mr. Mahaffey sought out Mr. Brown to tell him about the disagreement with Mr. Smothers regarding the necessity of a line break permit. Mr. Loredo heard this and intervened by authorizing a line break permit. By this time, Mr. Brown had completed all or most of the lock out procedure. Mr. Loredo radioed Mr. Smothers to tell him the line break permit was on its way and told him to put his own lock on the pump valve before replacing the spool piece.

Mr. Mahaffey then went to the maintenance shop and offered to assist, but Mr. Smothers refused his help. Mr. Mahaffey took offense and accused Mr. Smothers of hypocrisy because Mr. Smothers had previously reported other employees for safety violations. According to Solvay, Mr. Smothers told Mr. Mahaffey, “I don't want your kind of help” and said he was “going to take a shit and wanted to know if [Mahaffey] wanted to watch him to see if he did that right.” Aplt. Appx., Vol. II at 531. Mr. Smothers described the interaction differently, asserting that Mr. Mahaffey provoked the argument and began yelling and ranting at him. Other witnesses in the shop at the time characterized the interaction as Mr. Smothers and Mr. Mahaffey “arguing,” id. at 512, or “yelling at each other,” id. at 500, or as the men having “a confrontation,” id. at 518.

At 5:00 a.m., Mr. Brown handed Mr. Smothers the line break permit. Mr. Smothers finished repairing the spool piece. At about 6:00 a.m., he returned to the containment area and placed his lock on the pump valve. Sometime between 6:40 and 6:45 a.m., Mr. Smothers installed the repaired spool piece, a process that took about ten minutes.

3. The investigation and termination

Area Supervisor Erik Zimmerman arrived at work that morning between 5:00 and 6:00 a.m., and immediately received a call from Mr. Mahaffey, who wanted to make a complaint about Mr. Smothers concerning the argument and Mr. Smothers' removing the spool piece without a line break permit. After he wrote...