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David Calderon, An Individual v. Shell Oil Company; Shell Pipeline Company

July 11, 2011

DAVID CALDERON, AN INDIVIDUAL, PLAINTIFF,
v.
SHELL OIL COMPANY; SHELL PIPELINE COMPANY, LP; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Manuel L. Real United States District Judge

STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW

The Court having granted the Motion for Summary Judgment of Shell Pipeline Company L.P. ("Shell Pipeline" or "Defendant") makes the following findings of Uncontroverted Facts and Conclusions of Law:

STATEMENT OF UNCONTROVERTED FACTS

1. Beginning in approximately January of 2003, Plaintiff became an employee of Shell Pipeline. The Pipeliner position was an hourly certified union position subject to a collective bargaining agreement that regulated job assignments and promotions. In or about 1994, Plaintiff was promoted to the position of Line Rider. The promotion was based on Plaintiff's seniority pursuant to the terms of the collective bargaining agreement in effect at the time.

2. From 1993 through 2001, Plaintiff enrolled in college courses at Golden West College and Devry Institute of Technology. Plaintiff submitted applications for reimbursement for tuition expenses for these courses. Plaintiff's supervisors, including Dan Colburn and Dave Lloyd, determined that the classes were related to Plaintiff's job duties, and approved reimbursement of Plaintiff's tuition expenses. In 2001, Plaintiff earned a Bachelors of Science degree from Devry. His degree was substantially paid for by Shell Pipeline's tuition reimbursement policy.

3. After obtaining his B.S. Degree from Devry in 2001, Plaintiff continued his education in the MBA program in the Keller School of Management at Devry. Plaintiff approached Coburn to request tuition reimbursement for his MBA courses. Coburn congratulated Plaintiff on earning his B.S. degree. Coburn told Plaintiff that while obtaining an MBA would be a worthwhile endeavor, it did not directly relate to his current position as a Line Rider; thus, he could not approve Plaintiff's tuition reimbursement request.

4. At deposition Plaintiff was not aware of anyone at Shell Pipeline who received tuition reimbursement for an MBA program.

5. Though Shell Pipeline has a policy of encouraging employees to further their education, obtaining a degree does not automatically guarantee a particular job assignment or promotion for employees. The employee's educational background is considered along with other relevant factors.

6. Plaintiff was not told that a certain job would be available to him upon obtaining his B.S. degree. No one at Shell Pipeline told him that if he completed his degree a particular job would be waiting for him.

7. In early 2006, Plaintiff's immediate supervisor, Dave Lloyd, approached Plaintiff regarding a temporary assignment as a Utility Inspector at the Carson Terminal, Southern California Pipeline facility. He remained an hourly union employee eligible for overtime. Lloyd felt that Plaintiff performed his job duties well.

8. In late 2006, Shell Pipeline's management decided to make the temporary job duties performed by Plaintiff part of a new permanent position. Pursuant to Lloyd's request, Plaintiff assisted in formulating a job title and description for this new position. Plaintiff also assisted in preparing a job posting for the new position within the company's intranet.

9. Shell Pipeline maintains an intranet system for job postings called Open Resourcing ("OR") and Managed Open Resourcing ("MOR").

The newly created position was given the title Pipeline/Terminal Inspector ("PT Inspector") and was posted to OR so that all interested employees could apply. The successful applicant would report to Lloyd, the Maintenance Manager at the Carson facility. The posting for the PT Inspector specifically stated: "Anticipated assignment length 3 years."

10. The OR posting for the PT Inspector described the job responsibilities including the following:

"Key responsibilities are to provide direct support to Carson Terminal and SoCal Pipeline maintenance, operations, and to ensure compliance for all standards that relates to local, state, federal, and company regulations, policies, and procedures. This person will be the lead liaison of all major projects between maintenance and operation personnel, project engineers, Houston CC, supervisors and managers."

11. Plaintiff and several other Shell employees applied for this new position through OR. After interviews and consideration of the qualifications of all the applicants, and with Lloyd's recommendation, Plaintiff was considered the preferred candidate and was hired for the position on or about November 1, 2006.

12. The PT Inspector position was a non-union staff position and Plaintiff became a staff employee. Plaintiff's duties differed from his prior position as a Line Rider. For the year 2005- 2006 Plaintiff's base salary was approximately $62,400. Moreover, in his new staff position Plaintiff became eligible for Performance Bonuses.

13. According to Shell Pipeline's criteria the PT Inspector position was a promotion from Plaintiff's previous position of Line Rider.

14. After Plaintiff was awarded the position, a Human Resources representative sent an email to him congratulating him on his "promotion". Other managers and employees did likewise. In response to these congratulatory emails, Plaintiff replied stating "Thank you, Alice! >:)"; "Thanks, Steve!! I praise your wisdom and positive influence you gave me . . . I am sincerely thankful for all you have done for me."

15. No jobs at Shell Pipeline are "permanent" in the sense that they exist in perpetuity. Jobs come and go depending on the need for work performed, reorganization, downsizing, and other considerations. When Plaintiff was first hired he signed an agreement acknowledging that he was not guaranteed a job with any Shell entity for any fixed term and his employment could end at any time for any reason.

16. Beginning in the first quarter/early second quarter 2009 Shell Pipeline Supply and Distribution (S&D) initiated a global downsizing process. The process affected all regions in the U.S. Ultimately 20 positions were eliminated in the West and Gulf of Mexico Regions. Clorinda Nothstein, the Western Regional Operations Manager, headed the downsizing process in West Region with the assistance of other high level managers.

17. The downsizing process was conducted in phases. In Phase 1, the goal was to reduce the staff through attrition. When an employee retired or transferred or otherwise terminated employment, the work for that position was to be redistributed to others to the extent possible, and the position would not be replaced. No severance packages were to be offered under this scenario. Phase 2 contemplated specific job eliminations and focused on non-essential positions and the future needs in the Region. This group of employees would receive severance packages pursuant to Shell Pipeline's Severance Policy. The target dates for Phase 2 were July 2009 to December 31, 2009.

18. In or about March 2009, Shell Pipeline entered Phase 2 of the downsizing process. Clorinda Nothstein, the Western Region Operator consulted Don Herman, the Carson/SoCal Pipeline Operations Manager, one of her direct reports, and asked him to determine which positions under her supervision at Carson Terminal were non-essential. Herman analyzed the positions under his purview for approximately two weeks. He then notified Nothstein and HR of his recommendations. Herman made his decisions without regard to race or age of the individuals holding those positions.

19. Ultimately, leadership within the West Region determined that eight (8) positions would be eliminated, including the following:

* Engineering Assistant (Environmental): held by Maria D. La Grass, a Hispanic, 58 years old;

* Senior Administration Operations Assistant: held by Kenneth R. Goldman, a Caucasian, 63 years old;

* Operations Support Analyst: held by Volker Leuthardt, a Caucasian, 67 years old;

* Public Awareness Representative: held by Dan Coburn, a Caucasian, 58 years old;

* Administrative Assistant: held by Meredith A. Johnson, a Caucasian, 53 years old;

* Dispatcher: held by Keith A. Fritz, a Caucasian, 67 year old;

* Operations Lead Carson Redevelopment: held by Jesus T. Meza, a Hispanic who was 54 years old at the time; and

* Pipeline/Terminal Inspector: held by Plaintiff.

20. Herman determined that the PT Inspector position held by Plaintiff was non-essential for several reasons. The position was inconsistent with the way the job duties were handled at other facilities in North America and around the world. Based upon his experiences, the inspection activities performed by the PT Inspector at Carson, especially on the Health, Safety and Environmental (HSE) side, were performed by contractors or engineers at other facilities.

21. Herman concluded that, though the PT Inspector position included some essential functions, these functions could be performed by others at the Carson facility as they were at all other similar Shell Pipeline facilities.

22. In 2009, Shell Pipeline did not employ a facility specific pipeline inspector on a permanent basis at any facility other than Carson facility -- Plaintiff was the only person holding this position. Herman did not consider Plaintiff's race or age in determining that his job function was non-essential.

23. In May 2009, Herman told Plaintiff that his position as PT Inspector was being eliminated effective December 31, 2009 as a result of a global downsizing effort and cost savings. Plaintiff was not offered a severance package at that time because the severance packages had not yet been completed. Shahan, Herman and Lloyd recommended that Plaintiff immediately start posting on OR so that he could find another position. Shahan took a special interest in assisting Plaintiff in finding a new position. She informed him of available openings before they ...


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