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Tombeno v. Fedex Corporate Services, Inc.

United States District Court, D. Massachusetts

January 9, 2018

JAMES J. TOMBENO, Plaintiff,
v.
FEDEX CORPORATE SERVICES, INC., And BRENDA NYLEN CHRISTMAS Defendants.

          ORDER AND MEMORANDUM OF DECISION DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          TIMOTHY S. HILLMAN TIMOTHY S. HILLMAN DISTRICT JUDGE.

         Introduction

         James Tombeno (“Plaintiff”) filed a complaint against his supervisor, Brenda Nylon, now known as Christmas (“Christmas”), and FedEx Corporate Services, Inc., (“FedEx”) (collectively referred to as “Defendants”) in state court after being terminated from employment. Pursuant to 28 U.S.C. § 1441, Defendants removed the action to this Court. The complaint alleges age discrimination in violation of the Age Discrimination in Employment Act and Massachusetts General Laws chapter 151B; Gender discrimination in violation of Title VII of the Civil Rights Act and Massachusetts General Laws chapter 151B; Hostile work environment in violation of the Age Discrimination in Employment Act and Massachusetts General Laws chapter 151B; Retaliation in violation of Title VII of the Civil Rights Act and Massachusetts General Laws chapter 151; Breach of express or implied contract. For the reasons stated below, the Defendants motion for summary judgment is granted.

         Facts

         Plaintiff had been employed by FedEx for more than 22 years prior to being terminated on May 14, 2014. His job title was Business Development Sales Executive and he was 63 years old at the time of his termination. Defendant Christmas, was a District Sales Manager and Plaintiff's supervisor for the four years leading up to his termination.

         In 1991, when Plaintiff was first hired by FedEx, he signed an agreement which included a statement permitting the company to request he undergo a medical examination, including drug and alcohol tests. This agreement also indicated, in all capital letters, that Plaintiff's employment could be terminated with or without cause and without notice or liability whatsoever, at any time, at the option of either the employee or employer. Additionally, Plaintiff signed a handbook acknowledgment every year confirming his understanding of his employment as an at will employee.

         Plaintiff performed well at his job which was acknowledged by FedEx on a number of occasions. In 2013, Plaintiff received FedEx's President's Club award for his work performance and an MVP award after being recommended by Christmas.

         FedEx conducts performance reviews once or twice a year. The standard evaluation forms used are created in Memphis. All employees, depending on their job titles, are subject to certain requirements and expectations by FedEx. One of these expectations is the number of sales calls a sales executive should schedule per day. Prior to his termination, Christmas told Plaintiff to make five to six sales calls a day. When Plaintiff informed Christmas that he would do his best to comply, she threatened to take away the trip Plaintiff had won as a result of winning an award from FedEx. Christmas also threatened to put Plaintiff on a planner if he did not make the expected number of sales calls a day.

         In December of 2013, on his way to a meeting in Boston, the Plaintiff got a flat tire. While fixing the flat tire, Plaintiff dirtied his shirt resulting in him being underdressed at the meeting. During a break or after the meeting, Christmas took Plaintiff to the side, yelled at him and told him that he should wear a suit to work every day. Christmas would not let Plaintiff explain why he was not dressed appropriately. During a different meeting Plaintiff was clicking his pen. Christmas approached Plaintiff, grabbed the pen from his hand and threw it at him.

         On March 5, 2014, Plaintiff had back surgery. He filed for workers compensation benefits after the surgery claiming he had been injured while on a sales call in October 2013. He may have had a phone conversation with Christmas after his fall informing her that he had been injured while working. Plaintiff and Christmas exchanged a number of emails between October 28, 2013 and October 31, 2013 discussing Plaintiff's back injury. None of the emails included information on how Plaintiff was injured. A note written by Plaintiff's doctor states that Plaintiff told him that the condition of his back was not due to any particular injury. Plaintiff's workers compensation claim was denied by FedEx's workers compensation carrier. Plaintiff secured counsel, appealed that denial and later settled his claim. At no point did Christmas file a workers compensation claim on Plaintiff's behalf.

         After being out of work due to back surgery, Plaintiff returned in early May 2014. Christmas scheduled a joint sales ride with him only a few days after his return. During joint sales rides, Christmas would sometimes ride in the same vehicle as her employee while other times she would drive separately in her own vehicle. On May 8, 2014, Christmas and Plaintiff, each drove separately in their own vehicles during the joint sales ride.

         After attending some of the calls that were scheduled for that day, Christmas approached Plaintiff's car and smelled the odor of marijuana when Plaintiff opened his car door. At this time, Christmas told Plaintiff that she was ending the joint sales ride and walked back to her car. She proceeded to call Jim Wallace, a human resources advisor for FedEx, to inform him of the events that had transpired and to determine appropriate next steps. Christmas subsequently informed her assistant, Lisa Murzyn, that she was going to suspend Plaintiff because she smelled marijuana on his car or on his person.

         On Saturday, May 10th, Christmas received an email from Wallace indicating that the legal department recommended that she request the Plaintiff to submit to a drug test, and on Monday a drug test was scheduled in Springfield. Christmas called the Plaintiff to inform him of the drug test scheduled that day. While speaking with Plaintiff on the phone, Christmas informed him that she had smelled marijuana in his vehicle during their joint ride-along and that FedEx was ordering a drug test in Springfield that day. Christmas followed up with an email confirming the time and location and stating that Plaintiff would be suspended if he failed to comply with the request. At no time did Christmas offer to transport Plaintiff to the test.

         Shortly after this phone call, Plaintiff called Christmas back and informed her that he would not be going to Springfield for the drug test. Christmas sent another email to the Plaintiff stating that if Plaintiff he was refusing the test, he was suspended without pay until next steps were determined, including the possibility of termination. Plaintiff admits that he was aware that refusal to submit to the drug test could result in termination.

         On May 14, 2014 Plaintiff, Christmas and another manager, Seth Johnson, met at the Westborough FedEx station. During the meeting, Christmas terminated Plaintiff and provided him a written letter stating that the reason for his termination was his violation of the Alcohol/Drug Free Workplace policy; Plaintiff did not sign the document. A female who did not perform as well as Plaintiff was hired to replace him.

         Legal ...


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