JULIE A. ROBINSON, District Judge.
This case comes before the Court on Defendant's Motion for Summary Judgment (Doc. 41) on plaintiff's Complaint, alleging violations of the Family Medical Leave Act
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to a judgment as a matter of law."
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
There are clear and firm rules and requirements for what testimony and documents are properly before the Court for consideration.
At the outset, the Court notes that its determination of what constitutes the factual record in this case has been a laborious and difficult process, largely because plaintiff has failed to abide by Fed. R.Civ.P. 56, and the local rule governing summary judgments, D. Kan. Rule 56. Plaintiff fails to support many of her statements of fact with reference to exhibit numbers in the summary judgment record. Instead, plaintiff references documents by their deposition number, without even identifying to whose deposition such exhibit was attached, and without using the exhibit numbering sequence plaintiff employed in its filings in this case.
And this Court's Local Rule 56.1(b)(1) requires that one opposing a motion for summary judgment identify in numbered paragraphs each fact in dispute, referring "with particularity those portions of the record upon which the opposing party relies."
Plaintiff further failed to abide by the federal and local rules governing summary judgment motions, by citing to documents that were inadmissible for lack of authentication or because they were hearsay documents offered for truth of the matter asserted. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
Local Rule 56 requires that,
When deciding a summary judgment motion, the Court may consider evidence submitted, if admissible in substance, even if it would not be admissible, in form, at the trial.
Defendant challenges a number of the documents that plaintiff cites to in support of her factual assertions because the documents
There are some documents in this category that defendant also cited to and that defendant properly authenticated. The Court does consider those documents, since they were properly authenticated, albeit by defendant.
Other documents plaintiff cites to are not properly considered by the Court because the documents are substantively hearsay. For example, there are several doctors' notes that defendant properly authenticated and that the Court properly considers as germane to plaintiff's FMLA claims. These are doctors' notes that plaintiff provided to her employer when requesting leave. Yet plaintiff, without authenticating these same notes through the affidavit or deposition testimony of the authoring doctor, cites to the notes for the truth of the matter asserted by the doctors in the notes. The Court disregards the substance of the notes as inadmissible hearsay in these instances. One such example is a doctor's note, which is properly before the Court, as defendant properly cited to and authenticated the note, offered to show that this note was given by plaintiff to her employer. But, the note is not properly before the Court for the purpose plaintiff seeks, a purpose germane to plaintiff's ADA claim, which is that the doctor stated, and that it is thus true, that plaintiff had fecal incontinence issues of a certain severity as of that time.
With respect to testimonial evidence, the court may consider affidavits in support of summary judgment, despite the fact that affidavits are inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form.
Defendant also objects to some of the averments in plaintiff's affidavit attached to her memorandum in response to the summary judgment motion. Defendant claims that certain statements are inconsistent with plaintiff's testimony, or raised for the first time, in a manner that renders her affidavit a "sham." While a court should not automatically reject a declaration because it conflicts with prior sworn statements,
In this case, the Court has carefully reviewed plaintiff's prior deposition testimony and finds that defendant's complaints about plaintiff's affidavit are largely unmerited.
In short, the Court disregards documents that are not cited to with particularity nor cited to in a manner in which the Court can readily find them in the record. The Court disregards documents that are not properly authenticated, or the content of documents that are hearsay, to the extent they are offered for truth of the matter asserted. The Court disregards any statements in plaintiff's affidavit that meet the test of a "sham" affidavit. All of these important rules have significance, for Rule 56(e) gives the Court the discretion to consider as uncontroverted, facts that one party asserts are controverted yet fails to support with proper reference to the record.
Plaintiff moves for leave to file a surreply on the basis that defendant filed a ninety-seven page reply brief raising new evidence and new arguments, which requires a response from plaintiff. "[I]f the court relies on new materials or new arguments in a reply brief, it may not forbid the nonmovant from responding to those new materials."
With the above rules of law and principles of application in mind, the following facts are uncontroverted, stipulated to, or viewed in the light most favorable to plaintiff.
Defendant is in the business of developing, manufacturing, and marketing global positioning system products. Defendant hired plaintiff in 2004 as a Raw Material Inspector (RMI). RMIs are responsible for timely inspecting and ensuring the quality of materials received by outside vendors, before defendant stocks or uses these materials. All RMIs, including plaintiff, worked a set schedule Monday through Friday, assigned to either the day shift or night shift. At all relevant times, the RMIs, including plaintiff, were supervised by Tommy Johnson.
At all relevant times, and as stated in the RMI job description, an essential requirement of each RMI was compliance with defendant's Attendance Policy. The Attendance Policy, implemented over ten years ago, is a points-based policy that gives offending employees differing point levels for different types of attendance infractions. No points are assessed for military leave, authorized and approved FMLA leave and workers' compensation absences, and other types of approved "paid-time-off" absences. The Attendance Policy also prescribes the progressive discipline to be issued to employees who have accrued certain numbers of points for unapproved or unauthorized absences. The discipline ranges from Verbal Counseling upon accrual of four points, to Notice of Written Review upon accrual of five points, to Notice of Final Warning upon accrual of six points, to Termination upon accrual of seven points. Employees have the opportunity to eliminate one point for each period of thirty consecutive days in which they have no attendance occurrence. Supervisors are generally responsible for correctly "inputting" an employee's absence in defendant's attendance tracking system and ensuring that the employee is appropriately assessed attendance points. Defendant's Human Resources Department ("HR") runs and reviews an attendance report every Tuesday, identifying which employees have accrued points in the preceding week and what level of progressive discipline is prescribed. The supervisor would then administer the progressive discipline, and would have available to the employee their complete attendance and discipline records, for review.
At all relevant times, defendant also had a well-established "Schedule Deviation" policy that allowed employees to modify their set shift schedule without accruing an attendance point under the Attendance Policy. Supervisors could approve an employee requested shift or schedule deviation if the request met each of four conditions:
Prior to May 2008, while defendant terminated employees who accrued seven attendance points, the Attendance Policy gave defendant the discretion to terminate employees who received three Notices of Final Warning within a twelve month period. Prior to April 18, 2008, the relevant attendance policy for operations employees such as plaintiff read, "[t]hree written warnings within a 12 month period may constitute grounds for termination." On April 18, 2008, the attendance policy for operations employees was merged with the attendance policy for call center employees, and the Attendance Policy, which applied to all employees, including plaintiff, read that in addition to the table of progressive discipline based on accumulation of points, "[t]hree written warnings within a 12 month period may also constitute grounds for termination."
During her entire first three years of employment, from May 2004 to December 2007, plaintiff received eight Notices of Verbal Counseling, five Notices of Written Review and three Notices of Final Written Review. During this period, plaintiff never challenged the assessment of any attendance points during all times relevant to this action. During the twelve months preceding October 7, 2008, plaintiff received two Notices of Final Warning, on March 12 and May 9, 2008.
Throughout her employment, plaintiff requested and received protected leave under defendant's FMLA policy. During all times relevant to this action, plaintiff was never assessed an attendance point for an absence caused by an FMLA eligible event when she had FMLA leave available. In the year before her October 2008 termination, plaintiff was absent on approved FMLA leave at various times in October, November, and December 2007, and January 2008. By January 22, 2008, plaintiff had exhausted her available FMLA leave, and was not eligible to take FMLA leave again until October 8, 2008.
In November 2007, plaintiff sustained an injury to her left rotator cuff, causing pain and limitation in movement. Plaintiff took FMLA leave because of this condition. Plaintiff scheduled surgery on her shoulder for October 8, 2008, the first date for which she was eligible to take FMLA leave again. Her surgery was inexplicably delayed to October 21, 2008. From November 2007 through her period of post-surgery recovery, plaintiff's doctor restricted her from lifting more than ten pounds during three periods, totaling about six months over a span of one year: from November 21, 2007 to February 7, 2008; April 10 to May 10, 2008, and September 9 to November 20, 2008. Four weeks post-surgery, plaintiff had no lifting or pulling restrictions of any kind and her doctor fully released her to work.
In February 2008, plaintiff's supervisor, Tommy Johnson, began allowing plaintiff to modify her work schedule because of her medical issues with her shoulder and bowel. Johnson testified that he allowed plaintiff to modify her schedule, out of empathy for her medical condition, but also because he needed plaintiff on staff; his department was understaffed at that point. Thus, he allowed plaintiff take absences of hours or days in duration. Plaintiff had presented to defendant her doctor's note stating that she could work forty hour weeks, but would need scheduling modifications to accommodate her medical problems. If plaintiff did not make up the missed time in the same work week, Johnson assessed plaintiff an attendance point. But if plaintiff made up the missed time within the same work week, Johnson did not assess any attendance points.
Johnson discovered, when he received refresher training on September 16, 2008, that his practice of allowing plaintiff such schedule deviations was not in compliance with defendant's Schedule Deviation Policy, and that he was not authorized to grant the schedule deviations he had been granting to plaintiff. Johnson had allowed plaintiff to take schedule modifications for more than four hours in a given day; he had not required plaintiff to request such modification at least one day in advance; and he had allowed plaintiff to take such leave for medical reasons beyond attending a doctor's appointment. To plaintiff's knowledge, no other employee during plaintiff's tenure was allowed to take such schedule deviations without accruing attendance points.
Johnson determined that he would not assess plaintiff points retroactively for work weeks preceding the week of September 14, 2008. And after the week of September 14, Johnson granted no further schedule deviations that were not in compliance with defendant's Schedule Deviation Policy. But during the week of September 14, Johnson did assess an attendance point. On the day Johnson was taking the training course, plaintiff was absent; Johnson had approved plaintiff's request for a schedule deviation such that she could be absent on Monday, September 15 and Tuesday, September 16. Plaintiff worked on September 17, 18 and 19. Consistent with Johnson's prior approval of her schedule deviation request, plaintiff worked four extra hours on Friday September 19, and 12 hours on Saturday September 20, making up for the 16 hours she had missed on September 15 and 16 of that work week. Nonetheless, Johnson assessed plaintiff an attendance point for September 15.
Plaintiff worked full shift days on September 22 and 23. On Tuesday, September 23, the day that HR reviewed the attendance records and determined if progressive discipline was in order, Johnson presented plaintiff with a Notice of Verbal
Plaintiff was absent again on September 25 and 26, 2008. For both of these absences, plaintiff gave about an hour's notice that she would be absent because of her medical problems. Johnson did not approve a schedule deviation, and Johnson assessed another attendance point for these absences. Plaintiff was again absent on September 29. On October 1, Johnson and a representative from HR met with plaintiff, presenting her with a Notice of Written Review for passing the five point threshold. Plaintiff again asked for a leave of absence through October 7 and her request was declined. Plaintiff was absent October 2. Plaintiff came to work on October 3, but left after about two hours, when Johnson declined her request to make up her absences on September 29 and October 2 with schedule deviations. Johnson told plaintiff she would be assessed an attendance point for her absence on October 2; plaintiff thus accrued another attendance point, bringing her total to 6.25 points, and she received a Notice of Final Warning. This was plaintiff's third Notice of Final Warning in a twelve month period. On Tuesday October 7, 2008, HR reviewed the attendance records, and determined that plaintiff had received three Notices of Final Warning. Plaintiff was terminated on October 7, 2008, one day before her previously approved FMLA was to commence.
Before May 2008, although its Attendance Policy stated that defendant "may" terminate an employee for receiving three Notices of Final Warning within a twelve month period, defendant had not terminated any employee on that basis. In May 2008, defendant learned that employee Brandon Large had a pattern of receiving three Notices of Final Warning, but falling short of accumulating the seven attendance points that had theretofore resulted in automatic termination. Consequently, defendant decided to start enforcing as mandatory the language in its Attendance Policy that allowed for termination upon the issuance of three Notices of Final Warning within a twelve month period. Defendant did not immediately terminate Large; it terminated him in May 2008, after he received his fourth Notice of Final Warning. Plaintiff was the first employee to be terminated upon receipt of a third Notice of Final Warning. After plaintiff's termination, in December 2008, employee Jack Santos was terminated upon receipt of his fourth Notice of Final Warning. Defendant claims to not have discovered that Santos had received three such notices until he received the fourth. In 2009, defendant terminated four employees upon their receipt of three Notices of Final Warning. These terminations all occurred after plaintiff had commenced her EEOC complaint against defendant.
The FMLA entitles a qualified employee up to twelve weeks of leave during any twelve month period "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee."
Under the interference theory, plaintiff has the burden to show entitlement to FMLA leave, but need not show the employer's intent to interfere with FMLA leave.
A prima facie case of interference thus requires a showing that: (1) plaintiff was entitled to FMLA leave; (2) that an adverse action by the employer interfered with plaintiff's right to take FMLA leave; and (3) that the employer's adverse action was related to the exercise or attempted exercise of plaintiff's FMLA rights.
What is disputed in this action is whether defendant's termination of plaintiff was related to her exercise or attempted exercise of her FMLA rights. Defendant contends that it had a legitimate reason to terminate plaintiff on October 7, for she had accumulated three Notices of Final Warning, grounds for termination under defendant's Attendance Policy. When an employee requests and can demonstrate an entitlement to FMLA leave, she has no greater rights than the employee who continues to report to work.
First, it is undisputed that prior to 2008, no employee had been terminated for receiving three Notices of Final Warning within a twelve month period, unless that employee also had accumulated at least seven points under the Attendance Policy. Defendant claims that prior to October 7, 2008, it had decided to enforce this discretionary language and mandate termination of anyone receiving three such warnings within a twelve month period, irrespective of the employee's accrued points. Defendant explains that its decision to enforce this provision as mandatory was due to a perceived abuse of the attendance policy by another employee, Brandon Large, whom defendant terminated in May, 2008. But the undisputed evidence was that at the time of termination, Large had received four written warnings within twelve months. Despite its change in enforcement of the policy, defendant did not immediately terminate Large at the time defendant was aware that Large had three written warnings. Rather, defendant waited until Large had received another written warning, his fourth within twelve months, to terminate him in May 2008.
Plaintiff was terminated in October 2008, upon receipt of her third Notice of Final Warning. In contrast, Jack Santos was terminated in December 2008, but only after receiving his fourth written warning. Defendant explained that its HR department mistakenly overlooked Santos's third warning and did not terminate him until they realized he had four written warnings within a twelve month period. This chain of events raises a genuine and material issue as to whether defendant would have terminated plaintiff under defendant's so-called mandatory three written warning policy, irrespective of plaintiff's request for FMLA leave, which was to commence the day after termination. Although defendant proceeded to terminate other employees in 2009 upon their receipt of three, rather than four, written warnings, the fact that, except for plaintiff, defendant did not actually enforce its alleged change of policy in this manner until after plaintiff's EEOC complaint was filed, demonstrates that there remains a factual issue surrounding defendant's interference with plaintiff's FMLA rights.
Moreover, plaintiff's supervisor's practice of allowing plaintiff schedule deviations until he learned he was in violation of defendant's Schedule Deviation Policy,
This practice came to a halt in September 2008, after Johnson attended a refresher training course about defendant's attendance policy. In the training course, and through a discussion afterward with the trainer that day, Johnson learned that his practice of allowing plaintiff to deviate from her scheduled work hours was in violation of defendant's Schedule Deviation Policy. That policy allowed for deviations only when certain conditions were met: (1) the modification was for no more than four hours in a workday; (2) the associate had requested the modification at least one day in advance; (3) the associate made up all the missed time in the same work week; and (4) the modification was for the associate to attend a medical, dental or court appointment. Unless all four conditions were met, Johnson learned, he had no authority to grant the schedule deviation request. Because Johnson had allowed plaintiff to modify her schedule for more than four hours in a work day and because plaintiff had not always requested the modifications at least one day in advance, Johnson had been violating the policy. Moreover, at least some of the absences were not due to plaintiff having a medical appointment; rather, the absences were due to her medical condition, and consistent with her doctor's note that she would periodically need to be accommodated with modifications to her schedule.
On September 16, 2008, armed with the realization that he had been allowing plaintiff unauthorized schedule deviations since February, Johnson did not assess points against plaintiff for days prior to September 15 in which he had granted deviations in violation of the policy. But for that particular work week, September 14-20, Johnson did assess an attendance point for plaintiff's absence on September 15. Prior to the training session on September 16, Johnson had granted plaintiff's request for a schedule deviation for her absences on September 15 and 16. Both of these absences were due to her ongoing medical problems with her shoulder and/or bowel; and for both absences, plaintiff gave only about an hour prior notice. Neither absence was thus a permissible schedule deviation under the terms of defendant's policy, but Johnson had already granted these deviations. Plaintiff made up the sixteen hours by working four extra hours on Friday September 19 and twelve hours on Saturday, September 20. Nonetheless, Johnson assessed plaintiff an attendance point for September 15.
There remains an issue of fact concerning the propriety of defendant assessing this attendance point for September 15.
Other factual issues surround the element of causal connection. During the counseling session on September 23, plaintiff claims that she requested an unpaid leave of absence through October 7. Plaintiff also claims that she requested a personal leave of absence through October 7, when Johnson and a representative of HR gave her the Notice of Written Warning on October 3. Whether plaintiff asked for these leave of absences is controverted, but a fact issue germane to whether there was a causal connection between plaintiff's attempted exercise of FMLA leave and her termination the day before it was to commence. These requests for leave through October 7 may have appropriately been declined under the terms of defendant's policy, yet a reasonable fact finder could also rely upon this as still more evidence of a causal connection between plaintiff's attempted exercise of her FMLA rights and her termination, as well as evidence that defendant's stated reason for terminating her was a pretext for discrimination. Accordingly, summary judgment is denied on plaintiff's claim of interference with FMLA rights.
Plaintiff also claims that defendant retaliated against her for her attempted exercise of FMLA rights when it terminated her on October 7, the day before her FMLA leave was to commence. Retaliation claims under the FMLA are subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green.
To state a prima facie case of retaliation, plaintiff must show that: (1) she engaged in a protected activity; (2) defendant took an action that a reasonable employee would have found materially adverse;
To establish the third element of a prima facie case of retaliation, plaintiff must show a causal connection between her protected activity of taking FMLA leave and defendant's decision to terminate her employment.
The court has also emphasized, however, that a plaintiff may rely on temporal proximity alone only if "the termination is very closely connected in time to the protected activity."
Even if this strong temporal showing were insufficient to show a causal connection, plaintiff offers other facts demonstrating that her termination occurred under circumstances that give rise to an inference of unlawful discrimination. As the Court explained in its discussion of plaintiff's interference claim, there are facts, or issues of fact, surrounding the assessment of an attendance point against plaintiff for the week of September 14, and the resulting verbal warning she received, and there are facts, or issues of fact surrounding plaintiff's termination for three Final Notices of Warning, when Brandon Large and Jack Santos were not
Plaintiff having stated a prima facie case of retaliation, the burden shifts to defendant to state a legitimate, non-retaliatory reason for terminating plaintiff. This defendant accomplishes, with evidence that it decided in May 2008 to enforce the discretionary language of its Attendance Policy and mandatorily terminate an employee who received three written warnings in a twelve month period, irrespective of the accumulated number of points.
But, plaintiff points to sufficient facts or issues of fact that show that defendant's proffered reason was a pretext for discrimination. To raise a fact issue of pretext, plaintiff must present evidence of temporal proximity plus circumstantial evidence of retaliatory motive.
Pretext can also be shown by proving that similarly situated non-protected individuals were treated more favorably for committing comparable conduct.
In October 2008, plaintiff was terminated for three written warnings, yet after the change to mandatory termination, two employees were not terminated until they had received four written warnings. Moreover, as the Court discussed above, the assessment of an attendance point against plaintiff during the week of September 14 could raise an inference of discrimination, as well as an issue as to whether defendant's stated reason for terminating plaintiff was a pretext. Accordingly, summary judgment is also denied on plaintiff's claim of retaliation under the FMLA.
The ADA prohibits employers from discriminating on the basis of disability. Where, as here, a plaintiff relies exclusively upon circumstantial evidence of discrimination, the Tenth Circuit had held that the analytical framework used in the familiar McDonnell Douglas case controls the analysis.
Defendant argues that plaintiff can neither prove that she is disabled within the meaning of the ADA, nor that she is qualified to perform the essential functions of the job, nor that she suffered discrimination. Consistent with its analysis above, the Court finds that plaintiff points to sufficient facts to raise a jury question as to whether defendant discriminated against plaintiff on the basis of her medical conditions, an injured shoulder and a bowel condition. Moreover, there are sufficient undisputed facts to find that plaintiff was qualified to perform her job as an RMI, with reasonable accommodation, that is, deviations in schedule that allowed her to take absences, even while working a total of forty hours a week. Indeed, until she was terminated, the arrangement between plaintiff and Johnson largely worked. Plaintiff had managed to work forty hours in most work weeks, and had received only two written warnings in a twelve month period, until she received the third written warning in October.
The ADA defines disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."
Plaintiff also claims that her bowel condition was an impairment that substantially limited the major life activity of controlling one's bowels. Plaintiff's condition included fecal incontinence or the frequent urge to have bowel movements. Yet plaintiff has failed to show that this condition was anything more than a temporary impairment. Plaintiff testified that from February 2008 to March 2009, the period in which she was plagued with this condition, the symptoms were not constant, but would intermittently "come and go." Although she needed to have a parking space close to the building for some period of time and needed to be close to a bathroom, admittedly she was able in most weeks to work forty hours. By November 2008 she had no restrictions from her doctor related to this (or any other purported) condition;
Moreover, plaintiff fails to show how her bowel condition affected a major life activity, much less substantially affected a major life activity. Plaintiff argues that controlling bowels is a major life activity, something that the Tenth Circuit has not recognized. Rather, problems with controlling body waste are sometimes claimed as substantially impairing the major life activity of working, rather than impairing the ability to control bowels.
There are material issues of fact surrounding the events leading up to defendant's termination of plaintiff that prevent judgment as a matter of law on her claims of interference and retaliation under the FMLA. Although defendant contends that plaintiff was terminated because she received three notices of final warning under its Attendance Policy, there are material issues of fact as to whether she appropriately received the third final warning, for it was based on absences made up for with compensatory work time, consistent with the practices of plaintiff's supervisor. Moreover, plaintiff was effectively the first employee to be terminated solely for three final warnings but fewer than seven attendance points, although defendant purported to have changed its policy a few months before terminating plaintiff. All of these disputed issues of fact surrounding defendant's changes in practices and tightening of enforcement of its policies could lead a reasonable jury to find that defendant's termination of plaintiff was related to her exercise or attempted exercise of FMLA rights, and thus interfered with her right to FMLA. These factual issues could further lead a reasonable jury to find that there was a causal connection between plaintiff's attempted exercise of FMLA
The Court further concludes that there are no material issues of fact surrounding the threshold issue of whether plaintiff was disabled within the meaning of the ADA. Although plaintiff had two physical impairments, an injured left rotator cuff and an intermittent problem with bowel and fecal incontinence, neither impairment substantially limited her in one or more major life activities. Accordingly, summary judgment is granted on plaintiff's ADA claim.