Smith v. Appalachian Power Co.

OCAL RAY SMITH, II, Plaintiff, v. APPALACHIAN POWER COMPANY, Defendant.

Civil Action No.: 7:19-cv-00671

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

April 14, 2021

By: Elizabeth K. Dillon United States District Judge

MEMORANDUM OPINION

Plaintiff Ocal Smith II, formerly a line mechanic for Appalachian Power Company (APCO), has sued APCO for interference, discrimination, and retaliation under the Family Medical Leave Act (FMLA), failure to accommodate, discrimination, and retaliation under the Americans with Disabilities Act (ADA), discrimination and retaliation under Virginia's whistleblower law, Virginia Code § 40.1-51.2:1, and both negligent and intentional infliction of emotional distress. APCO moves for summary judgment, to dismiss the whistleblower claim for lack of jurisdiction, and to strike an affidavit submitted by Smith in opposition to APCO's summary-judgment motion. (Dkt. Nos. 30, 34.) The court held a hearing on the summary judgment motion (Dkt. No. 39) and a separate hearing on the motions to dismiss and to strike (Dkt. No. 40). Trial in this matter is scheduled to commence on May 5, 2021.

For the reasons stated below, the court will grant APCO's motions to dismiss and for summary judgment. The motion to strike will be denied as moot. The court will issue an appropriate order dismissing this case.

I. BACKGROUND

A. APCO

APCO is a wholly owned subsidiary of American Electric Power Service Corporation (AEP), a public utility holding company that engages in the business of generation, transition, and distribution of electricity.¹ APCO generates and distributes electricity across western Virginia and southern West Virginia.

APCO's Distribution Operations are organized by districts. The Christiansburg District includes Service Centers in Christiansburg, Pulaski, Wytheville, Woodlawn, and Bluefield, each of which maintains a Service Center to which line mechanics are assigned. Smith began in Christiansburg, but he later transferred to Pulaski. Pulaski line mechanics reported to Line Crew Supervisors (LCSs) David Williams and Wayne Armbrister. The LCSs reported to Glenn Edwards, the Distribution Systems Supervisor (DSS) for Pulaski and Wytheville. Edwards reported to Christiansburg District Manager of Distribution Systems (MDS) Mike Wilson. Wilson reported to Vice President of Distribution Operations Phil Wright until November 2018 when he began reporting to Scott Chambers, who reported to Wright. Wright reported to APCO President Charles Patton and then Chris Beam, who succeeded Patton in January 2017.

B. Line Mechanic Work

Smith started work for APCO in 2002 as a line mechanic in Christiansburg. Line mechanics construct and maintain the lines, poles, and systems that deliver electricity to customers. Essential line mechanic functions include carrying up to 75 pounds, climbing poles, and conducting pole-top rescues. It is "physically demanding, heavy, heavy work." (Smith Dep. 159, Dkt. No. 31-5.) Linemechanics work in crews consisting of two to four employees. Line mechanic work is 24/7, 365 days a year, and they are on call to respond to outages and other emergencies on an overtime basis.

C. APCO Employment Practices

APCO maintains EEO, harassment, FMLA, and ADA accommodations policies. These policies are in the Employee Handbook and can be found on the AEP intranet.

At any given time, there are literally hundreds of AEP employees on medical leave. APCO works with disabled employees to get them back to work quickly and safely. AEP has a Recovery Center that manages medical treatment and rehabilitation to safely return employees to work.

AEP has a Safety Department and issues employees a Safety & Health Manual. Wright, VP of Distribution Operations, described APCO's safety culture:

I think every employee, the 950 employees that were in my organization, if you ask them, they've heard me more than one time say that safety is paramount. It is imperative that we build safety into everything that we do, and that if something . . . does not look right or employees don't understand, they not only have a responsibility but they have an obligation to stop that job so that that work can be done safely, and then if it can't be done in a safe manner, we won't do it. We will find another way to get things done.

(Wright Dep. 34-35, Dkt. No. 31-2.) APCO has "All Can Stop Job" and "If you see something, say something" policies. Any APCO employee can stop a job until safety concerns are addressed. When employees witness anything unsafe, they are expected to "speak up when they immediately see it, and then report what happened." (Edwards Dep. 18, Dkt. No. 31-3.) APCO holds weekly safety communications and regularly schedules safety trainings and meetings. One such example is "Journey to Zero Harm," mandatory training required of all personnel.

Employees with concerns have a variety of reporting avenues, including through the Human Resources Department, which consists of approximately 130 employees. In addition, employeescan report concerns anonymously through Ethics and Compliance (E&C, also known as the Concerns Line). Beam explained this process:

We encourage folks if they have a concern to let us know. We've built the Concerns Line around that and a whole organization around making folks feel comfortable, to bring a concern, One, and then Two, ideally, to have an independent group be able to either vet out the concern and find a conclusion or to determine that maybe it is not a real concern at all.

(Beam Dep. 12-13, Dkt. No. 31-9.)

D. Transfer to Pulaski, Complaints About Other Employees

While on extended medical leave in 2009, Smith had an affair with the spouse of a fellow line mechanic, Mike Hobbs. (Wilson Decl. ¶ 7, Dkt. No. 31-1.) After Hobbs learned of the affair, he physically "beat up" Smith. (Id.) Smith pressed assault and battery charges, Hobbs was arrested, and the court ruled Hobbs and Smith could have no contact for one year. When Smith returned from medical leave in July of 2009, Wilson transferred him to Pulaski.

In 2013, Smith complained to Wilson that an employee, whom Smith believed to be Hobbs, made menacing comments to his girlfriend (now wife, Crystal Smith)—"you tell Bubba we said 'hello.'" (Wilson Decl. ¶ 13.) Wilson investigated and found Hobbs was in Gatlinburg on a family vacation on the date of the alleged incident.

Later in 2013, Smith complained to Wilson that a Southern States worker had said, "I hear Mike Hobbs beat the hell out of you, Bubba and he said he was going to do it again as soon as he could." (Wilson Decl. ¶ 14; Smith Dep. 84.) Hobbs allegedly gave Smith "the finger" every time they passed on the road, and Smith feared Hobbs was going to beat him up again. Wilson told Smith that APCO would not tolerate any acts of violence, but he was unable to substantiate any of Smith's claims.

On February 26, 2014, Smith complained to Wilson that he thought fellow employees had caused power outages at his home and were "out to get him." (Wilson Decl. ¶ 15.) Smith created a map to describe the scheme. Wilson was unable to substantiate this claim.

E. Complaints About Theft

In June 2012, Smith reported that "there is a lot of thieving going on in Pulaski." (Wilson Decl. ¶ 12.) Smith claimed that someone stole a trailer hitch for a truck. When Wilson went to investigate, he located the misplaced trailer hitch and found no evidence of thieving.

F. Verbal Warning in May of 2014

APCO uses an overtime call-out system called ARCOS. When APCO needs employees after hours, ARCOS automatically calls them in rotation. ARCOS automatically tracks call-out opportunities, acceptances, refusals, and failures to respond without inquiring into the reasons.

In May 2014, Smith received a warning for poor call-out response. Smith filed a formal grievance, claiming that one of his "refusals" was due to "six feet of snow in the drifts up and down my road," the "refusal" should be removed from his call-out report, and management had removed refusals from others' call-out reports, but not his. (Wilson Decl. ¶ 16; Smith Dep. 98, 100-01.) In fact, fifty percent of the "refusal" corrections benefited Smith. (Id.) Smith's grievance was denied.

G. Smith Complains to APCO President Patton

After Smith's grievance was denied, he contacted APCO President Patton, making several complaints. Patton scheduled a meeting with Smith, Wilson, and HR representative Doug Hoosier on August 21, 2014. Without management's knowledge, Smith invited other line mechanics to attend the meeting. Many of Smith's complaints revolved around ARCOS call-out issues, the same issues he had raised in his grievance. Smith also brought up a couple of jobs he thought were unsafe, one involving a 20,000 pound fuel tank he claimed swung over employees' heads (the "CaseKnife Road" issue) and another involved "hanging switches" in a location Smith thought was unsafe (the "MacGill Village" or "Peppers Ferry Road" issue). (Wilson Decl. ¶¶ 17, 20; Smith Dep. 104, 111-12.)

After the meeting, Patton told Wilson it appeared that there were "guys out to get" supervision, that Wilson should view this as a coaching opportunity, develop a path forward, and constructively put the issues to rest. (Wilson Decl. ¶ 18.) Safety was to be emphasized. (Id.) Wright directed Wilson to investigate the issues and prepare an action plan. Hoosier and Wilson followed up with Smith to discuss his concerns. Smith again mentioned the Case Knife Road and Peppers Ferry Road jobs and continued to complain about ARCOS. Wilson and Hoosier investigated and determined that Smith had greatly exaggerated the safety issues at Peppers Ferry Road. Similarly, Wilson's investigation into the Case Knife Road issue revealed the tank had been 30 feet away from employees and no one on the job raised any concerns with the situation at the time. Wilson provided Wright and Patton with the results of his investigations and an Action Plan. Patton, Edwards, Wright, and Wilson met...