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Weidman v. Exxon Mobil Corp.

United States District Court, E.D. Virginia, Alexandria Division

July 26, 2016

RICHARD WEIDMAN Plaintiff,
v.
EXXON MOBIL CORPORATION, Defendant.

          MEMORANDUM OPINION

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment.

         Richard Weidman ("Plaintiff") is a physician who the Defendant ExxonMobil ("Defendant") employed for approximately five years as the manager of the occupational medical clinic at its Fairfax campus. Defendant has a global health department called Medicine and Occupational Health ("MOH") that provides global occupational and public health services to all ExxonMobil employees.

         On March 26, 2013, Plaintiff filed suit against Defendant and ten additional individual Defendants, all employees of ExxonMobil. The Complaint alleged four counts: (i) fraud; (ii) intentional infliction of emotional distress; (iii) personal injury; and (iv) wrongful discharge. On April 30, 2013, Defendants moved to dismiss the entire Complaint.

         In an Order and Memorandum Opinion dated August 1, 2013, this Court granted Defendants' Motion to Dismiss, holding that Plaintiff failed to state a claim for which relief may be granted on each of his claims. In dismissing the wrongful discharge claim, this Court held that "Plaintiff failed to identify the public policy statute that ExxonMobil violated in discharging him from employment, and in allegedly operating illegal pharmacies, and thus did not remotely establish that his termination falls within the public policy exception." Plaintiff appealed this decision, and the Fourth Circuit affirmed this Court's dismissal of all claims except for the wrongful discharge claim. The Fourth Circuit held that Plaintiff had sufficiently stated a claim for wrongful discharge under the theory that he was fired for refusal to engage in a criminal act - his alleged "refusal to practice pharmacy without a license" in violation of the public policy of sections § 54.1-3310 and § 54.1-3435 of the Virginia Code. The Fourth Circuit found that, while Plaintiff did not cite these statutes in his Complaint, his citation to them in his opposition brief was sufficient.

         As a result, Plaintiff's sole claim remaining before this Court is a claim for wrongful discharge on the theory that he was fired for refusing to "practice pharmacy." On October 1, 2007, Defendant hired Plaintiff as a physician and clinic manager. In this position, Plaintiff was responsible for providing occupational health services and supervising the medical clinic at Fairfax, Virginia. For the first few years of his career with Defendant, Plaintiff managed two other ExxonMobil clinics in Clinton, New Jersey and Paulsboro, New Jersey.

         In June or July of each year, the MOH supervisors come together to discuss the performance of MOH employees. During this meeting, employees are competitively ranked amongst their peers, with each employee being given a ranking from 0 to 99, with 0 being the lowest performer and 99 being the top performer. Because they are new to the job, first-year employees are not competitively ranked and, thus, are given an "in the middle" ranking of 50. The following year, however, the new employee is competitively ranked.

         In or around October of each year, the supervisor meets with the employee and provides him or her with an oral evaluation of that employee's performance. Employees are not told their exact ranking, with the exception that employees in the bottom 10% are typically informed of their ranking for the purpose of Performance Improvement Plans ("PIP"). In the June or July 2009, Plaintiff was competitively ranked against his peers for the first time. He was given a ranking of 11, just on the cusp of the bottom 10% when compared against his peers.

         In mid-2009, when the H1N1/09 virus was declared by the World Health Organization as a "pandemic, " Dr. Stephen Jones, an ExxonMobil physician based in the United Kingdom, and Plaintiff's second-level supervisor, assisted with the development of ExxonMobil's pandemic flu response. The Defendant's pandemic flu response included a plan that would have Tamiflu available at ExxonMobil clinics for lawful distribution to personnel performing critical operations in the event of an emergency.

         In or around June 2009, it was discovered that there may be state laws affecting Defendant's ability to store and distribute Tamiflu. As such, Defendant began reviewing the legal implications of the program. In or around November 2009, Plaintiff claims he received a letter from the Virginia Board of Pharmacy ("Board") informing him that it would be conducting an audit of the Fairfax clinic's pharmacy operations. Plaintiff then alleges he anonymously called the Board "trying to find out whether it was a legal operation or not." He claims he asked the Board "general information about . . . how one could operate a pharmacy operation." Based on that conversation, Plaintiff came to the conclusion that "the whole operation of dispensing medication to employees" was unlawful.

         Plaintiff alleges he "immediately" told the Fairfax clinic's nurse, Kathy Ludwig, to cease dispensing medication at the clinic. Plaintiff then placed a second call to the Board, informing it that the pharmacy is closed so there was no need to conduct an inspection. The Board's audit of the Fairfax clinic was then cancelled.

         On December 31, 2009, Plaintiff sent an e-mail to his supervisor, Glen Douglas, M.D., and Margaret Carlson, another MOH administrative employee, pertaining to Tamiflu storage as part of the Defendant's pandemic flu response. Following the correspondence, the Tamiflu supply was removed from the Fairfax clinic and "that was the end of it." As stated by the Plaintiff, "[a]s I recall, it was not brought up again." Defendant states that neither Dr. Jones nor any other ExxonMobil manager took issue with Plaintiff's decision not to dispense medication or store Tamiflu at the Fairfax clinic.

         In or around June 2010, Victoria M. Weldon, M.D., U.S. Occupational Health Manager, became Plaintiff's direct supervisor. In taking over as Plaintiff's supervisor, Dr. Weldon identified a number of performance-related issues. Dr. Weldon states that while Plaintiff was good at providing one-on-one physician care, he struggled with the management and administrative side of occupational medicine. Dr. Weldon found that, although he had been with the Company for over two years, he had little understanding of management functions, processes, and the expectations for his role. She also discovered there were issues with Plaintiff's attendance. While Dr. Weldon was physically located in Houston, she received reports that Plaintiff was often late or would leave the clinic without finding proper physician coverage. Additionally, Dr. Weldon observed that Plaintiff seemed to have difficulty with interpersonal relations, particularly when collaborating with colleagues.

         Given these performance issues, as well as the fact that Plaintiff still had not obtained his New Jersey medical license, Defendant removed his management responsibilities over the two New Jersey clinics. This resulted in him having the smallest workload of any Clinic Manager in the country.

         In June 2010, annual ranking meetings were held, and Plaintiff was ranked in the bottom 10%. On October 12, 2010, Dr. Weldon met with Plaintiff to deliver his annual evaluation. During this meeting, Dr. Weldon relayed to Plaintiff that his relative performance continued to be low and that he was now ranked in the bottom 10%. Additionally, Dr. Weldon told Plaintiff that he would be placed on a PIP, which is typical for employees in the bottom 10%.

         Over the next several months, Dr. Weldon worked with Human Resources to develop a PIP for Plaintiff. Just before Defendant was to present Plaintiff with the PIP, Dr. Weldon was advised that an investigation was being initiated to address complaints Plaintiff had recently brought forward.[1] On advice of Human Resources, Dr. Weldon postponed issuing the PIP until Plaintiff's complaint could be investigated.

         In April 2011, Defendant concluded its investigation of Plaintiff's January 2011 complaint. Given that the annual evaluation and rankings were approaching, it was decided to ...


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