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Smothers v. Solvay Chemicals, Inc.

United States District Court, D. Wyoming

July 3, 2014

SOLVAY CHEMICALS, INC., a Delaware corporation, Defendant.



This matter is before the Court on motions in limine filed by both Parties. This case is currently set for a five day Jury Trial beginning July 14, 2014 at 8:30 A.M. The remaining claims are: (1) Violation of the ADA; and (2) Violation of the FMLA. The dismissal of Plaintiff's breach of contract claim was affirmed by the Tenth Circuit. Defendant has filed two motions in limine and Plaintiff has filed one motion in limine. Upon reading the Parties' written submissions, hearing oral arguments, and otherwise being fully informed in the premises, the Court FINDS and ORDERS as follows:


Plaintiff contends that prior to his termination he worked eighteen years in Defendant's trona facility in Sweetwater County, Wyoming without any significant disciplinary action. Plaintiff was terminated on August 26, 2008. The stated reason was a safety violation. Plaintiff states this was a pretext since it was his first safety violation and other similarly situated employees were not disciplined as harshly. Plaintiff states he has a serious health concern and is an individual with a disability as defined by the ADA because of physical impairments in his neck and back causing chronic pain and insomnia and substantial interference with the major life activity of sleeping. Plaintiff further states he took FMLA leave from work on occasion to deal with his health conditions. Plaintiff asserts Defendant retaliated against him for taking FMLA leave and discriminated against him on the basis of his disability by singling him out for harsher discipline and terminating his employment.

Plaintiff seeks actual damages, liquidated damages, compensatory damages, punitive damages, interest, and attorney's fees and costs.

Defendant claims it dismissed Plaintiff for a safety violation. Defendant claims Plaintiff violated Defendant's safety policies when he put himself above Defendant's safety policies and refused to complete a lock-out tag-out before he started work to repair a hydrochloric acid pump pipe section. Defendant also claims that even though Plaintiff's safety violation was serious and significant in and of itself, the seriousness of the situation was further heightened by Plaintiff's belligerent attitude.

Initially, this Court granted summary judgment to Defendant on all of Plaintiff's claims. On appeal, the Tenth Circuit affirmed with respect to Plaintiff's breach of contract claim, but remanded with respect to Plaintiff's ADA and FMLA claims. Smothers v. Solvay Chemicals, Inc., 740 F.3d 530 (10th Cir. 2014). With respect to Plaintiff's FMLA claims, the Tenth Circuit stated:

The evidence viewed in Mr. Smothers' favor shows that: (1) Solvay treated Mr. Smothers differently from similarly situated employees who committed comparable safety violations; (2) Solvay's investigation into Mr. Smothers' quarrel with Mr. Mahaffey was inadequate; and (3) Solvay managers previously took negative action against Mr. Smothers because of his FMLA-protected absences. Together these grounds create a triable issue of fact as to whether Mr. Smothers' FMLA leave was a substantial motivation in Solvay's decision to fire him.

Id. at 540. "[W]e conclude Mr. Smothers has established a genuine issue of material fact as to whether Solvay's stated reasons for firing him were pretextual." Id. at 544. The Tenth Circuit held similarly with respect to Plaintiff's ADA claims. To the extent there was evidence of pretext relating to Plaintiff's FMLA claims, the same evidence of pretext may support his ADA claim. Id. at 546-47.


There are three motions in limine. Two are made by Defendant, with the remaining one made by Plaintiff. Defendant's two motions concern: (1) Whether Plaintiff may introduce evidence concerning Defendant's four-step disciplinary process that is included in its employee handbook; and (2) Whether the testimony of Plaintiff's treating physicians and other healthcare providers may be limited from offering trial testimony falling within Rule 702. Doc. Nos. 54; 55. Plaintiff's single motion raises three issues: (1) forbid Defendant from introducing any evidence suggesting Plaintiff posed a direct threat of harm and/or was a safety risk to himself or others due to his chronic pain and/or prescription medication use; (2) forbid Defendant from introducing evidence that Plaintiff was an "at-will" employee; and (3) forbid Defendant from referencing the EEOC closing letter.

I. Defendant's Motion in Limine Concerning the Four-Step Disciplinary Process [Doc. No. 54].

Defendant seeks to forbid Plaintiff from introducing evidence concerning Defendant's four-step disciplinary process included in its employee handbook. Doc. No. 54. Defendant relies on Rule 403 as support, arguing any reference to the four-step disciplinary process is irrelevant and/or unfairly prejudicial. Id.

As support for its argument, Defendant relies on the following passage from the Tenth Circuit's opinion in this case:

When Mr. Smothers began employment..., the company provided him with an employee handbook outlining workplace policies and disciplinary procedures ("the Handbook"). The district court concluded that the Handbook was an implied employment contract, and Solvay does not challenge this holding. The Handbook contained a four-step progressive disciplinary process, with termination as a last resort. But it also contained a provision allowing Solvay to terminate an employee immediately for a serious offense, including a safety violation.
* * *
Thus, to prove Solvay violated his implied employment contract, Mr. Smothers must show that it failed to comply with the disciplinary policy as defined in the Handbook. But the Handbook provision unambiguously gives [Solvay] the discretion to discharge employees who' violate safety rules. And Mr. Smothers concedes that he violated a safety rule. He has not shown how Solvay's decision to discharge him violated the terms of the Handbook.

Smothers, 740 F.3d at 547 (internal citation omitted).

The passage cited by Defendant dealt only with Plaintiff's breach of contract claim, which is no longer in this case. But Defendant believes this language makes the four-step disciplinary process "of no consequence." Doc. No. 54, p. 3 (emphasis in original). Defendant argues "it is [] improper and unfairly prejudicial if Plaintiff's counsel refers to the four-step disciplinary process as such question will ...

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