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Williams v. Phillips 66 Co.

United States District Court, S.D. Illinois

November 3, 2014

PHILLIPS 66 COMPANY,[1] Defendant

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For Nathan J. Williams, Plaintiff: Eric K. Banks, Banks Law LLC, St. Louis, MO; Vincent A. Banks, III, Law Offices of Vincent A. Banks III LLC, St. Louis, MO.

For Conoco Phillips Company, doing business as Phillips 66, Defendant: Ian P. Cooper, LEAD ATTORNEY, Tueth, Keeney - St. Louis, Generally Admitted, St. Louis, MO; Laura E. Hemmer, Tueth, Keeney et al. - Edwardsville, IL, Edwardsville, IL.

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NANCY J. ROSENSTENGEL, United States District Judge.

Pending before the Court is a motion for summary judgment filed by Defendant Phillips 66 Company (" Phillips 66" or " the Company" ) on May 6, 2014 (Doc. 59). Also pending is a motion filed by Phillips 66 on June 12, 2014, in which Phillips 66 seeks to strike various exhibits submitted by Plaintiff Nathan Williams as part of his response to the motion for summary judgment (Doc. 67). On September 22, 2014, the Court held a hearing on these motions. For the reasons set forth below, the motion for summary judgment is granted in part and denied in part, and the motion to strike is denied as moot.


Neither party presented a comprehensive statement of facts, which, given the nature of this case, is essential at this stage of the litigation. Consequently, the Court has endeavored to create one based on all of the evidence submitted by both parties.

Nathan Williams is African American. He was hired on April 23, 2001, by Phillips 66 to work as an operator at the refinery in Wood River, Illinois, in the North Property Logistics Dispatching Department (Doc. 60-1, pp. 3, 4, 12). To the Court's knowledge, Williams is currently still working as an operator in the Dispatching Department ( Id. at pp. 3, 5).

As an operator, Williams's job is to route finished products to the correct storage tanks ( Id. at pp. 4-5). At his deposition, he described himself as " pretty thorough at work . . . [and] pretty safe" (Doc. 60, p. 5). Williams believes that he has always been able to do what is required of an operator and performed his job satisfactorily (Doc. 60-1, pp. 5, 7). He has been evaluated from time to time at work, and his evaluations have been positive ( Id. at p. 6). Williams has never been suspended ( Id. at p. 21). He has never been demoted ( Id.). He has never had a reduction in pay or benefits; in fact, his pay has consistently and steadily increased from 2001 to 2014 ( Id. at p. 3; Doc. 60-5; Doc. 64-9, p. 5). Williams indicated that he liked being an operator and intended to continue working as an operator at the Refinery (Doc. 60-1, pp. 7-8).

While one might think this is all evidence of a positive work environment, Williams claims that is far from true. Williams alleges that since he began working at the Refinery in 2001, he has been subjected to a continuing pattern of harassment, retaliation, and discrimination due to his race (Doc. 30). Williams filed nine formal complaints with the Human Resources Department (" HR" ) at the Refinery between 2001 and 2010 ( See Doc. 64-2, ¶ ¶ 10, 11). There were also incidents where Williams complained only to his supervisor and his complaint was not passed on to HR, and there were incidents that Williams did not report to anyone. The following is a summary of the incidents, recounted in a light most favorable to Williams, the non-movant.

Shortly after Williams began working at the Refinery, the harassment began in the form of offensive race-based comments. In October 2001, Gary Liley, one of Williams's co-workers, said " all you black guys look and sound alike" (Doc. 60-2, p. 16). That same month, another co-worker, Richard McCormick, said, " If you are making remarks about Blacks, Hispanics, or Portaricans [sic] then the company is

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ready to nail you to the cross" ( Id.). Another time, Williams was listening to music and McCormick said that he didn't think " you people" or " you black folk" listened to that type of music ( Id. at pp. 16, 19; Doc. 64-10, pp. 2-3). McCormick also asked Williams why " black people get upset when people call them 'nigger'" because he " had a high school friend that he called 'nigger' all the time" and " his friend never got upset" (Doc. 60-2, p. 16; Doc. 64-9, pp. 3, 4). Another time, McCormick was complaining over the phone about Williams's heavy use of the radio, and said, " this guy stays on the radio 24/7. The only reason these people got hired was because [sic] minorities" (Doc. 60-2, p. 17). McCormick then grabbed a pamphlet with a picture of new hires at the Refinery and pointed out all of the women and minorities ( Id.).

Williams also was involved in the first of many confrontations with McCormick in October 2001 (Doc. 60-2, p. 16, 19). McCormick confronted Williams because he was unhappy with the way Williams handled a situation at work. McCormick had a " heated discussion" with Williams and said, " this is not the way we do things around here, and it [is] time that I show you who is boss, boy." McCormick also told Williams to never again talk to him or ask him for help on the job. Williams reported the incident to his Production Lead, Ruben Avilez, and Avilez said he could talk to McCormick, but it might result in negative repercussions for Williams (Doc. 60-4, p. 27).[2]

Williams filed an internal complaint against Liley and McCormick related to these incidents, and Joe Wade from HR was assigned to investigate ( see Doc. 60-2, pp. 13-21). Williams told Wade that offensive incidents occurred every day, but if he wrote them all down, then he would be spending more time writing than working ( Id. at p. 17; Doc. 64-10, p. 4). As part of his investigation, Wade interviewed Liley, McCormick, and two other operators (Doc. 60-2, p. 15). He also obtained two written statements from Fred Carpenter, who was the off-site supervisor to whom Williams initially complained ( Id. at pp. 18-19). Joe Wade concluded that the events Williams described were " substantially correct" ( Id. at p. 14). He recommended a one-day suspension with pay for McCormick and a verbal reminder for Liley ( Id.). Phillips 66 did not present any evidence regarding what, if any, disciplinary measures were actually taken.

Sometime after this, although Williams was unsure of the precise year,[3] Williams overheard Liley refer to him as a " nigger" during a conversation with the supervisor, Ruben Avilez (Doc. 64-9, p. 4). Liley said, " We have to get a handle on this nigger filing these different charges." Avilez responded, " You don't have to worry about Nate, I'll take care of him." Williams did not file a complaint related to this incident.

In 2002, a third co-worker made an offensive comment to Williams (Doc. 64-10, p. 2). Specifically, Stan Unverzagt said " we don't train your kind," and when Williams asked what he meant, Unverzagt said " go look in the mirror." Williams followed protocol and reported the incident to his supervisor, Ruben Avilez, and Avilez

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said he would handle it. Phillips 66 did not produce any evidence or provide any details regarding its response to this incident, or whether Unverzagt was disciplined.[4]

In addition to racially charged comments from his co-workers, Williams suffered other disadvantages in the workplace. For example, in December 2004, Williams applied for an open position at the Refinery as a Dispatch Utility Day Operator (Doc. 60-4, p. 27; Doc. 64-11, pp. 4-5). Williams wanted the job because it was a day-time shift, and it would allow him to spend more time with his family. Williams possessed all of the requisite qualifications for the job, but he was not hired. Instead, a white man named Alan Shook was hired, even though he did not have any of the necessary qualifications. To add insult to injury, Williams had to temporarily fill the position for four or five months while Shook was properly trained for the job.

Williams also indicated that he has been involuntarily reassigned to the " distillate job," but he does not recall when the reassignment occurred (Doc. 64-9, p. 5). Every qualified operator is expected to take turns working the distillate job, and operators receive the same pay and same benefits while working the distillate job. But Williams claims he was reassigned to the distillates job for six months to one year, which is longer than other operators are assigned to the job.

By 2005, the explicitly race-based comments from his co-workers had mostly stopped, but Williams continued to be harassed in other ways. For example, in August 2005, Larry Odorizzi put a sticker on Williams's desk that said " gay operator" (Doc. 64-10, pp. 4-5). Williams filed an internal complaint, and Lynette Zirges from HR was assigned to investigate. Ms. Zirges concluded that Williams's claim was substantiated, and she recommended disciplinary action for Odorizzi. Phillips 66 did not produce any evidence or provide any details regarding its investigation of this incident or the disciplinary action that was taken against Odorizzi.[5]

Also in 2005, a hangman's noose was found at a workstation at the Refinery (Doc. 60-4, p. 24; Doc. 64-10, p. 6). In response to the incident, the Company distributed to all employees a memorandum entitled " Avoiding Harassment in the Workplace-- Inappropriate Displays." The memorandum reminded employees that inappropriate displays were unacceptable and would result in discipline. Phillips 66 did not produce any evidence or provide any details regarding this incident, its investigation and the manner in which it was conducted, or whether any disciplinary action was taken.

In March 2006, Williams's locker was broken into (Doc. 60-4, p. 24). Williams reported the incident to management, which Gary Liley " was not pleased" about. No one was ever punished. Phillips 66 did

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not produce any evidence or provide any details regarding how or when it responded to this incident or whether any disciplinary or preventative action was taken. During a subsequent investigation over four years after his locker was broken into, Williams indicated that his locker was still broken because Ruben Avilez refused to fix it (Doc. 60-3, p. 15).

In April 2008, Alan Shook and Gary Liley circulated a political email with the subject line " Comparison of Federal Taxes McCain vs Obama and Clinton" (Doc. 60-2, p. 22; Doc. 60-1, pp. 44-46). Williams explained that the email discouraged voting for Barack Obama in the presidential election, that it had racial undertones, and that he was offended by it. Williams filed an internal complaint, and the Company apparently launched an investigation. But again, Phillips 66 did not produce any evidence or provide any details regarding the investigation or whether disciplinary action was taken against Shook and Liley.

In January 2009, an ice pick was jammed into one of the tires on Williams's car while it was parked at the Refinery (Doc. 60-4, p. 24; Doc. 64-11, p. 3). Williams reported the incident to security at the Refinery and also to Fred Carpenter in HR. Phillips 66 did not produce any evidence or provide any details regarding how or when it responded to this incident or whether any disciplinary or preventative action was taken.

After January 2009, most of the harassment Williams suffered seemed to come in the form of threatening or otherwise inappropriate confrontations with co-workers. For example, in June 2009, Williams was involved in a confrontation with his co-worker, Dave Mendoza (Doc. 60-2, pp. 28-29, 34-35; Doc. 64-11, pp. 6-8). Mendoza and Williams showed up to work the same position, and Mendoza tried to order Williams to relocate, but Williams refused. They called the " off shift supervisor," Rich Tolleson, to straighten out the situation. Before they got an answer, Mendoza cursed at Williams and stormed out of the room. Tolleson then accused Williams of being disrespectful and insubordinate, even though Williams was the one who was in the right place according to the schedule. Another operator told Williams that she overheard Mendoza threatening to file a union grievance if Tolleson did not write up Williams, and Tolleson said not to worry because he was going to. Williams was called into Ruben Avilez's office two days after the incident, and Avilez stated " we can let Mendoza retire, but you can be fired." Williams interpreted this statement as a threat.

Williams filed an internal complaint related to the incident (Doc. 60-2, p. 28). Williams indicated that he felt certain members of management and the union were " out to get [him]" or " after [him]," and that the Refinery had an ongoing problem with racial harassment and discrimination ( Id. at pp. 28, 34, 35). HR asked for someone from the corporate office in Houston, Texas, to investigate Williams's complaint, and Jermaine Davis was sent to do so (Doc. 64-12, p. 1). As part of his investigation, Davis met with Williams, obtained statements from Rich Tolleson and a witness, and reviewed a number of pertinent documents, including the overtime schedule for the night in question, portions of the Refinery's operational guidelines, and a couple of emails ( see Doc. 60-2, p. 27-50). Davis concluded that Williams's claims were without merit; there was no evidence that anyone was conspiring against Williams, and the investigation " did not confirm" that Williams was subjected to a hostile work environment or racial discrimination ( Id. at pp. 31, 32). Nevertheless, Davis found that " it seem[ed] appropriate to educate the workforce

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on our policies regarding workplace harassment and discrimination" ( Id. at p. 32). Davis also recommended formal counseling for Mendoza due to his " inappropriate conduct" ( Id.).

In October 2010, there was an incident between Williams and an independent contractor named " Gator" Gaines over a safe working permit (Doc. 64-12, pp. 4-6). Gaines was hired to do some work on a tank, but Williams would not issue a safe work permit and allow Gaines to get started until the tank was tested to ensure there was no liquid or hydrocarbons in the tank. Gaines cursed at Williams and was angry that Williams was slowing him down. Williams believes this incident was related to his race because Gaines " was calling [him] names like 'boy.'" Williams reported the incident to a supervisor, Mike Gutierrez, and an investigation was apparently launched ( Id.; see Doc. 64-2 ¶ 10). Phillips 66 did not produce any evidence or provide any details regarding its investigation of this incident or the manner in which it was conducted. But Phillips 66 told the EEOC that Gaines was prohibited from returning to the Refinery (Doc. 64-7, p. 3).

There was also another incident in October 2010 between Williams and Richard McCormick (Doc. 60-4, p. 25; Doc. 64-12, pp. 3-6). McCormick wondered aloud to a new hire whom he was training, " I wonder who is next on Nate's list." Williams asked McCormick what he meant, and McCormick stated that someone got in trouble everytime Williams came around. Williams told McCormick that was not true and asked him not to make comments like that in front of a new operator. McCormick, who weighs approximately 300 pounds, " got up in [Williams'] face" --he was pointing his finger in Williams's face and barked that Williams has gotten another co-worker fired. Williams felt that McCormick was threatening him and essentially telling him that he " better watch it." Williams believes this incident was related to his race because McCormick called him " boy" , and McCormick does not get into confrontations with white co-workers. Williams testified " I hate to admit this, but [McCormick] kind of intimidated me a little bit. . . . [H]e's got friends out there and I'm going to work every day and I'm watching over my shoulder." Williams further testified that he cannot sleep and he had to go to the hospital with chest pains for the first time in his life.

Williams reported the incident with McCormick to his supervisor, and his complaint made its way to the HR Department (Doc. 64-12, p. 7). Williams complained that he was subjected to retaliation by coworkers and managers because of his previous complaints (Doc. 64-7, p. 3). He complained that he was isolated and routinely treated differently and that his co-workers made disparaging comments about him to new hires and encouraged the new hires not to associate with Williams ( Id.) Fred Carpenter launched an investigation into Williams's complaint (Doc. 64-2, ¶ 10).

While Carpenter's investigation was ongoing, there were more incidents. Williams and McCormick were involved in another confrontation in December 2010 (Doc. 60-2, p. 3; Doc. 60-4, p. 25; Doc. 64-13, pp. 3-6). Williams relieved McCormick from the volatiles job, which, as the name implies, is extremely dangerous. Williams explained that " you leave a valve open, you leave a pump running, a spark goes off, that's the end of Nate Williams." As Williams was conducting his surveillance, he noticed that McCormick had left a pump " dead-heading," and he also had left a propane valve open. Williams corrected the problems and noted them in his

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shift report, as he is required to do. The next day, McCormick printed Williams's shift report and " was not too happy that [Williams] put [his] findings in that shift report." McCormick approached Williams, who was sitting in a chair, and stepped in between his legs. McCormick was " pointing and yelling," and Williams " didn't know if the guy was going to hit me or what have you." Williams was very uncomfortable with how close McCormick was to him, and he pushed his chair back and asked McCormick to step back. McCormick told Williams, " I'll be seeing you tonight" and walked out. Williams was very concerned because he did not know what McCormick meant, and he had " no idea what he [was] gonna do next." Williams reported the incident to his shift supervisor; he was told that the management team was " putting together a plan." Again, Phillips 66 did not produce any evidence or provide any details regarding its response to this incident or whether any disciplinary or preventative action was taken.

Also in December 2010, Williams's prescription medication was stolen from his lunch box (Doc. 60-4, p. 25). Williams reported the incident to management, and he claims that an investigation was conducted, but the culprit was never caught. In February 2011, Williams's prescription medication was stolen from his lunch box for a second time. Again, Williams reported the incident to management, and an investigation was supposedly ...

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