JOHN W. SEDWICK, District Judge.
At docket 23, Defendant Alyeska Pipeline Service Company ("Alyeska") filed a motion for summary judgment. Plaintiff Robert Ditman ("Ditman") responded at docket 35. Alyeska's reply is at docket 36. Ditman was granted leave to file a rebuttal, which is at docket 38. Oral argument was not requested and would not assist the court.
Ditman was employed by Alyeska from January 28, 2002 until February 29, 2012. Ditman worked with Alyeska's communications team as a technician. At some point during Ditman's employment, around 2005 or 2006, Alyeska decided to combine its communication and instrumentation teams. Before the merger of the two teams, communication technicians and instrumentation technicians had different training requirements and performance checks needed for advancement up to a higher pay level, but once the teams were combined both the communications technicians and the instrumentation technicians would have to meet the progression requirements of the instrumentation team. Additionally, requirements for oversight and leadership experience were added to the progression requirements.
At the time the teams were combined, Ditman was a level IV communications technician and had been since October 20, 2005.
In 2008, Ditman approached his supervisors about moving up to a level VI instrumentation technician. The supervisors decided that since he had been a high level communications technician, he could complete a customized set of requirements and performance checks that would suffice to advance him another level. With Ditman's participation, one of the instrumentation supervisors prepared a memorandum setting forth the required performance checks and training requirements needed for Ditman to advance.
Ditman started his lead technician assignment in June of 2009. Ditman was working in this capacity when an incident of insubordination occurred that led to Ditman's two-week suspension in August of 2009.
In May of 2010, Ditman had his annual medical examination. All Alyeska technicians are required to have such an examination in order to verify that the they can meet various regulatory obligations and be exposed to certain work-related hazards.
In August of 2010, Alyeska received a follow up letter from Ditman's health care provider stating that Ditman had been examined by a pulmonologist who concluded that Ditman was not at any greater risk from exposure to fumes, smoke, and other irritants and that he could wear a respirator.
In May of 2011, Alyeska posted job positions for two mechanical maintenance technicians. The job posting indicated that Alyeska was looking for candidates with a minimum of five years of "direct technical work experience in mechanical maintenance in an industrial facility."
Around this time, during the summer and fall of 2011, Ditman began having problems with Alyeska. He received a verbal disciplinary warning on July 27, 2011, about staying past normal shift hours without approval, tardiness, and the wording and tone of his emails and communications to coworkers.
Also around this time, one of Ditman's supervisors, Verne Griffis, became concerned that Ditman was under the influence of drugs or alcohol because of his appearance and attendance issues. He reported the concern to the maintenance manager, Mike Drew, who in turn had Griffis talk to Tom Brady, the Occupational Health Unit Manager. Griffis told Brady that he was not certain there was a problem but that he had concerns. Brady recommended that another employee who had drug and alcohol awareness training should observe Ditman. That employee reported that he did not observe any problem.
In September of 2011, Griffis informed Stacia Motz in human resources about Ditman's attendance issues and asked her to review the gate logs to check when Ditman arrived at the work facility and when he left the work facility.
Ditman took medical leave in September of 2011 for shoulder surgery. When he returned in late January, his supervisor reported that Ditman was not speaking to him or speaking to him only briefly.
On February 15, 2012, Smith, the nurse who provided case management services to Alyeska, received an email from Ditman. The email indicated that he had been distressed since his return to work after shoulder surgery and that he had been referred to a psychiatrist and planned to go to the Alaska Native Medical Center in the morning to see if he could get an appointment.
On February 23, 2012, a human resources employee with Alyeska called Ditman and informed him that a disciplinary review board ("DRB") was being convened regarding his behavior. Specifically, he was told that the DRB was reviewing three incidents: 1) his discourteous conduct when requesting a new badge from the security coordinator in late January of 2012; 2) his insubordination to his supervisor in early February of 2012; and 3) his threats of workplace violence during his conversation with Smith on February 21, 2012. She urged him to prepare and send his position statement regarding those three issues.
The DRB met on February 28, 2012. At the time the DRB met, the board members were aware that Ditman had previously filed an EEOC complaint against Alyeska in March of 2011. The board determined that termination was appropriate and prepared a report. Termination was based on Ditman's actions of threatened workplace violence, insubordination, and continued violation of Alyeska's Code of Conduct regarding employee interactions.
He amended his complaint in state court to include allegations regarding his termination.
1) Alyeska discriminated against him on the basis of race in violation of Title VII of the Civil Rights Act of 1964 and the Alaska Human Rights Act when it failed to promote him, investigated him for alcohol use and attendance problems, and terminated him.
2) Alyeska discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA") and the Alaska Human Rights Act when it failed to promote him, investigated him for alcohol use and attendance problems, and terminated him.
3) Alyeska discriminated against him on the basis of his disability or perceived disability in violation of the Americans with Disability Act ("ADA") and the Alaska Human Rights Act, by placing him on restricted duty.
4) Alyeska retaliated against him in violation of Title VII of the Civil Rights Act of 1964, the ADEA, and the Alaska Human Rights Act, because he filed a complaint against Alyeska with the Equal Employment Opportunity Commission ("EEOC").
5) Alyeska breached the covenant of good faith and fair dealing that is implied in all employment contracts in the States of Alaska by all of the foregoing actions, by breaching company policies, and by not treating him the same as similarly situated employees.
6) Alyeska violated the Family Medical Leave Act ("FMLA") by terminating him for statements he made to a nurse while he was being interviewed for FMLA leave.
Alyeska removed the case to federal court in April of 2012. Subsequently, it moved for summary judgment as to all claims in Ditman's First Amended Complaint. Ditman has since filed a Second Amended Complaint to add a claim for Interference of Contract.
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
The moving party has the burden of showing that there is no genuine dispute as to any material fact.
Ditman claims that Alyeska failed to promote him and hire him for a maintenance position, investigated him for alcohol use and attendance problems, and terminated him because of his race in violation of Title VII and the Alaska Human Rights Act and because of his age in violation of the ADEA and the Alaska Human Rights Act. Alyeska moved for summary judgment, arguing there is no evidence to establish that its actions towards Ditman were based on anything but legitimate, nondiscriminatory reasons. To defeat a motion for summary judgment on both his state and federal employment discrimination claims,
To establish a prima facie case of discrimination based on McDonnell Douglas, a plaintiff must show: 1) he belongs to a protected class; 2) he was performing according to legitimate expectations; 3) he suffered an adverse employment action; and 4) that the employer treated similarly situated employees who did not belong to the protected class more favorably.
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to present a legitimate, nondiscriminatory reason for the adverse employment action.
As to the allegation that he was not promoted to a level VI technician because of his race or age, Ditman failed to demonstrate that he was qualified for the promotion. Ditman does not dispute that he did not complete the required performance checks that he needed to advance to a level VI technician. Rather, he merely argues that he should not have had to do so and that he was unfairly denied the opportunity to do so. However, he submits no evidence to support his arguments.
As for the allegation that Ditman was unfairly singled out for observation because of his drinking and investigated for attendance, there is no evidence that any adverse employment action resulted from the observation of Ditman or from the investigation into Ditman's attendance. Ditman was not terminated for these reasons.
While not entirely clear from his complaint and briefing, Ditman appears to base his discrimination claims in part on Alyeska's failure to hire him for the mechanical maintenance position. Ditman has not presented admissible evidence to establish that he was qualified for the job. Alyeska required a minimum of five years "direct technical work experience in mechanical maintenance in an industrial facility." Ditman asserts that his resume shows that he worked as an oil response technician for eight years and was therefore qualified. Ditman proceeds at length in his briefing to discuss his mechanical maintenance experience, but he does not submit any admissible evidence or even allege in his briefing that such experience was reflected in his resume or otherwise communicated to the selection panel. On the other hand, the evidence submitted by Alyeska demonstrates that all three members on the initial review panel rejected Ditman's resume, which did not clearly reflect that he held a job in the mechanical maintenance field or that he had direct responsibilities for mechanical maintenance as part of his job duties. One of the panel members submitted an affidavit stating that Ditman's resume did not show enough direct technical work in mechanical maintenance.
While Ditman argues that his termination was unfair, he failed to present evidence to establish a prima facie case that his termination was in any way motivated by discrimination. That is to say, he failed to present any evidence that younger or non-native employees displaying similar conduct were treated differently. In his briefing, Ditman alleges he had many instances of "egregious" violations that went undisciplined and that he had questionable behavior before his termination that was not a problem for Alyeska.
Even if Ditman were to establish a prima facie case of discrimination, Alyeska has met its burden of demonstrating a legitimate, nondiscriminatory reason for its actions in relation to Ditman. As discussed above, based on the undisputed evidence submitted by Alyeska, Ditman did not meet the agreed upon performance checks necessary to advance to a level VI technician and did not meet the requirements for the mechanical maintenance position. In regard to Ditman's termination, Alyeska has presented evidence to show that Ditman was fired for specific instances of misconduct and that Ditman had received both verbal warnings about his behavior and a written warning about his behavior before being terminated.
Given Alyeska's demonstrated non-discriminatory reasons for its actions, the presumption of discrimination drops away, and the burden shifts to Ditman to show that Alyeska's stated reasons are merely pretext for intentional discrimination. Ditman "can show pretext directly, by showing that discrimination more likely motivated the employer, or indirectly, by showing that the employer's explanation is unworthy of credence."
In his briefing Ditman argues that Alyeska's stated reason for not advancing him up a pay level is not believable because his co-worker, Sean Doherty, was allowed to advance to a level VI position. Indeed, "[a] plaintiff may raise a triable issue of pretext through comparative evidence that the employer treated [non-members of the protected class] but similarly situated employees more favorably than the plaintiff."
Around a year and a half after Doherty had been promoted to a level VI instrumentation technician, Ditman requested similar advancement. His supervisors established, with Ditman's involvement and approval, a set of performance checks and the training Ditman needed to complete to be qualified to move up to a level VI technician. He never completed those requirements. Ditman argues that, putting the requirements aside, he was more qualified to be a level VI technician than Doherty. Alyeska presented evidence to demonstrate that at the time of Doherty's advancement, he had completed the required overhaul and leadership assignments necessary to be a level VI technician and that his supervisors believed that he had the necessary experience and ability to move up to level VI instrumentation technician.
Ditman also states in his briefing that Alyeska's stated reasons for his termination are not believable because it did not consistently apply its policies. He argues in his brief that his conduct has historically been questionable and that there have been other instances of "egregious" misconduct that went unaddressed.
The record shows that Alyeska followed its policies with respect to Ditman's termination and that Ditman had a recent history of disrespectful communications with supervisors and co-workers, including a suspension in 2009 for verbally harassing his supervisor in a profanity-laced phone call regarding perceived unfairness in overtime assignments. Indeed, Ditman admits that he had a history of disrespectful or inappropriate communications with his coworkers. Moreover, as noted above, Alyeska's evidence demonstrates that at least two other employees were terminated after threatening the safety of Alyeska employees.
To the extent Ditman argues that his termination was wrongful because he did not say that he could not guarantee the safety of other employees, such a disputed fact is irrelevant. The question is whether the employer honestly believed its reason for terminating Ditman, even if it turns out to be misinformed.
Ditman does not point to any other evidence to suggest a discriminatory motive behind his failure to be promoted and his termination. There is nothing in the record from which the court could infer that Alyeska discriminated against Ditman because he was Native Alaskan or above 40 years old. It is clear from Ditman's briefing that he believes that he was singled out and treated unfairly during his last few years of employment with Alyeska. However, those general allegations of unfairness are not enough to withstand summary judgment as to his discrimination claims.
Ditman's ADA claim asserts that Alyeska regarded him as having pulmonary disease and would not allow him to perform overtime work with the mechanical maintenance department based on this perceived disability.
Here, Ditman failed to demonstrate that he was qualified for the overtime work or that Alyeska unlawfully restricted his ability to work in the mechanical maintenance department. The evidence shows that Alyeska had concerns about Ditman's pulmonary function based on the results of his annual company physical, calling into question his ability to wear a respirator which was needed to perform the type of work Ditman would do in the mechanical maintenance department as part of his overtime assignments. Ditman fails to point to evidence calling into question the results of these test results. Alyeska worked with Ditman to obtain more information about his medical condition to determine whether he could wear a respirator when needed and whether Ditman's overtime work in the mechanical maintenance department would be safe for him.
In late June of 2010, Alyeska received information from Ditman's health care provider that indicated Ditman should avoid working in environments where there could be exposure to certain irritants. Ditman does not point to any evidence that could refute this conclusion. Based on this information, Alyeska determined that he could not safely perform the tasks he had been performing during his overtime assignments because those tasks involved coming into contact with solvents and fumes. It also determined that he could work with a respirator as needed, but that more specific information would be needed regarding this accommodation. It then communicated with Ditman's healthcare provider to get clarification regarding Ditman's ability to wear a respirator.
To the extent Ditman argues that Alyeska delayed giving him full clearance to work with a respirator and irritants after receiving information that he was not physically limited from doing so, the court concludes that this was not an adverse employment action. On August 23, 2010, Ditman's doctor cleared him to work around irritants and with a respirator. One week later, a nurse working for Alyeska wrote the doctor to clarify that Ditman could wear a respirator even when under exertion. Once the doctor responded, all restrictions were lifted. Alyeska was working with Ditman and his health care providers to make sure Ditman was capable of safely performing certain job functions.
Ditman claims that Alyeska retaliated against him by terminating him after he filed an EEOC claim in violation of Title VII, the ADEA, and the Alaska Human Rights Act. Both federal and Alaska law require that Ditman set forth a prima facie case of retaliation to withstand summary judgment.
The only evidence Ditman cites to demonstrate causation is timing, noting that he was fired after he filed his EEOC complaint. While "causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity," the lapse of time between the adverse action and the protected activity must be fairly short.
Moreover, even assuming Ditman established a prima facie case, the burden shifting analysis discussed in the previous section applies.
Ditman argues that Alyeska interfered with his exercise of his FMLA rights in violation of 29 U.S.C. § 2615(a)(1) when it relied upon statements he made to a nurse for purposes of obtaining FMLA leave as a basis for his termination. Under the FMLA, it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or attempt to exercise any [FMLA rights]."
Ditman's claim that Alyeska interfered with his exercise of his FMLA rights by using information provided to a nurse in securing leave as a basis for termination is not supported by any supporting case law. Indeed, this court was unable to find a case that suggests an employer violates FMLA in such a situation. It is undisputed that Ditman told Smith he did not trust himself and that at a minimum he failed to assure Smith that he would not hurt other Alyeska employees. Those communications created a threat to safety which are not protected simply because the context in which they were made was FMLA-related.
To the extent Ditman argues that he was terminated because he took FMLA-protected leave, he has failed to point to any evidence to show that his termination was causally connected to such leave. As discussed above, Alyeska has established a legitimate reason for Ditman's termination that is not connected to Ditman's FMLA leave. While the court recognizes the temporal proximity between Ditman's return from FMLA leave and his termination, Ditman does not argue that this proximity suggests he was fired for taking medical leave or that this proximity alone would be enough to show the requisite causation. Indeed, Ditman appears to believe that his termination was based on the fact that his supervisors were unfair to him and singled him out starting in 2011 because of his race or age or because he filed an EEOC complaint in March. Moreover, while temporal proximity alone can suffice as circumstantial evidence of causation in some FMLA cases, the court concludes "that no reasonable jury could find causation in this case given the uncontroverted evidence recited above, even considering the timing of [Ditman's] termination."
Ditman also brings a state law claim against Alyeska for the breach of the covenant of good faith and fair dealing. Employment contracts in Alaska include an implied covenant of good faith and fair dealing.
Ditman failed to present evidence raising a genuine issue of material fact about Alyeska's subjective motive for its actions. As the foregoing sections describe, the evidence shows that Alyeska terminated Ditman because of behavioral issues, including a threat of workplace violence, not for improper subjective motives such as depriving him of an employee benefit. Moreover, Ditman was not entitled by contract to be promoted, to work overtime, or to retain his job when he violated work policies.
An employer violates the objective component if it treats an employee in a manner that a reasonable person would deem unfair.
Ditman failed to present evidence raising a genuine issue of material fact as to the objective fairness of his termination. "Although the question of what a reasonable person would find to be unfair is usually a question for the trier of fact, this does not relieve [Ditman] of the burden of presenting admissible evidence to successfully oppose a motion for summary judgment."
Based on the preceding discussion, Alyeska's motion for summary judgment is granted as to Ditman's First through Sixth Causes of Action in his Second Amended Complaint. His Seventh Claim was not included in this motion and, therefore, is the sole remaining claim.
