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Smothers v. Solvay Chemicals Inc., No. 12-8013 (10th Cir. Jan. 22, 2014)

"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." The Tenth Circuit reverses summary judgment in this ADA and FMLA case, holding that the employee created a genuine dispute of material fact about whether Solvay singled him out for harsher treatment than his coworkers. The company, according to the summary judgment record, committed the rookie HR mistake of not allowing the employee to present his side of the story.

Smothers v. Solvay Chemicals Inc., No. 12-8013 (10th Cir. Jan. 22, 2014): Smothers was a mechanic who suffered from chronic pain from a spinal disorder, which in turn prevented him from sleeping normally. "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." He was often absent from work, using intermittent FMLA leave, and "managers and coworkers complained about his FMLA-protected absences." He received a negative review near the end of his employment, citing absenteeism, and was denied a promotion supposedly for the same reason.

The incident that precipitated his termination was a leak of hydrochloric acid from pumping equipment that he was using. Smothers was supposed to obtain a formal permit (a "line break") to affect repairs. The line break involved a checklist of precautions which needed to be followed, including 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." Smothers' concededly circumvented the safety procedures by removing part of the equipment - a spool piece - without getting the appropriate clearance and locking-out the pump. The incident led to an altercation between Smothers and a coworker named Mahaffey, who called management about the situation. An investigation by a management committee led to Smothers being terminated both for the fight and the safety violation.

While the district court held that Smothers failed to create a dispute over the validity of Solvay's reasons for firing him, the Tenth Circuit reverses. It holds that several anomalies in the record could - if a jury credited them - establish that the termination was pretextual under both the FMLA and ADA:

(1) "Solvay treated Mr. Smothers differently from similarly situated employees who committed comparable safety violations." The employer argued that the management committee that recommended Smothers' discharge was different from other committees that considered other employees' safety violations, so those situations were not comparable. Responds the panel,

"Although there is no clear legal rule as to how much overlap is needed among decision maker groups for employees to be similarly situated, requiring absolute congruence would too easily enable employers to evade liability for violation of federal employment laws. The district court erroneously rejected Mr. Smothers' pretext argument by insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary decision. We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to Mr. Smothers"

The panel also holds that while other employees' safety violations were different from Smothers' lock-out violation, the relevant similarity is that each employee "deliberately violated clear policies." And while other employees expressed remorse for their violations and promised not to repeat them, so did Smothers.

(2) "Solvay's investigation into Mr. Smothers' quarrel with Mr. Mahaffey was inadequate." The panel observes that "[a] 'failure to conduct what appeared to be a fair investigation of' the violation that purportedly prompted adverse action may support an inference of pretext." Here, supposedly management spoke to Mahaffey and got his side of the story, but never troubled to ask Smothers his side. Indeed, during the one meeting Smothers had with the managers, he was prevented from talking about the alleged quarrel with Mahaffey.

(3) "Solvay managers previously took negative action against Mr. Smothers because of his FMLA-protected absences." Notes the panel,

"In depositions, Solvay managers acknowledged that managers and co-workers had long complained about Mr. Smothers' FMLA-protected absences. Mr. Smothers presented evidence that Solvay refused to promote him and gave him negative ratings on his recent performance evaluations expressly because of his FMLA-protected absences. Additionally, Mr. Wallendorff admitted that he tried to force Mr. Smothers to change shifts until Human Resources advised him this would be unlawful. Although Mr. Wallendorff did not ultimately follow through with the forced shift change, he testified that he and others remained openly frustrated with Mr. Smothers' absences. They repeatedly asked senior managers and Human Resources if there was 'something else [they could] do.'" [Citations and footnote omitted.]

The panel also holds that, even under the pre-AAADA definition of "disability," a jury could find that Smothers was substantially limited in the major life activity of sleeping. "The record shows that Mr. Smothers' medical condition required multiple surgeries over several years. Numerous medical treatments failed to resolve his condition or eliminate his severe pain. Medical records for more than a dozen medical visits between June 2006 and September 2008 show that Mr. Smothers consistently complained of an inability to sleep. He consistently reported waking between four and six times each night because of his pain and being able to sleep only four or six hours a night-in spite of multiple prescription pain medications and various prescription sleep aids." [Record citations and footnote omitted.] Finally, the panel affirms dismissal of a contract claim, holding that under Wyoming law, the employer did not breach the terms of its employee handbook, which granted the company the immediate right to terminate an employee for safety violations.

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