Opinion
Case No. 04-4024-KGS.
June 22, 2005
MEMORANDUM AND ORDER
Plaintiff brought this suit under the federal Family Medical Leave Act ("FMLA") and Kansas common law. Plaintiff claims the defendant discharged him in retaliation for seeking benefits for a job-related injury. Defendant moves for summary judgment, arguing that because plaintiff is not covered by the FMLA and cannot dispute the legitimate justification for the disciplinary act, no genuine issue of material fact exists and it is entitled to judgment as a matter of law. (Docs. 37 and 38). Plaintiff moves for judgment with respect to liability and requests that the court allow the case to proceed to the jury for the determination of damages. (Docs. 41 and 42). Both sides filed their responsive briefs.
Plaintiff's Response to defendant's Motion for Summary Judgment was filed on April 8, 2005 (Doc. 56) ("Plaintiff's Response"). Defendant's Reply in support of its Motion for Summary Judgment was filed on May 2, 2005 (Doc. 58) ("Defendant's Reply"). Defendant's Response to plaintiff's Motion for Summary Judgment was filed on March 14, 2005 (Doc. 51) ("Defendant's Response"). Plaintiff's Reply in support of his Motion for Summary Judgment was filed on April 13, 2005 (Doc. 57) ("Plaintiff's Reply").
I. Summary Judgment Standard.
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." For purposes of reviewing a summary judgment motion, a factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." A "genuine" issue of fact exists where "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. To meet this standard, the moving party that does not bear the ultimate burden of persuasion at trial does not need to negate the claims of the non-movant; instead, the moving party can simply point out the absence of evidence for the non-moving party on an essential element of that party's claim. Once the moving party satisfies this initial burden in a properly supported motion, the burden shifts to the non-moving party to show that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." The non-moving party may not rest on mere allegations or denials in its pleading in opposition to summary judgment, but "must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat a properly supported motion for summary judgment. The court must consider the record in the light most favorable to the non-moving party.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). See also Doebele v. Sprint Corp., 157 F.Supp.2d 1191, 1195 (D. Kan. 2001), Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir., 1991).
Adams v. Am. Guarantee Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).
Liberty Lobby, 477 U.S. at 256.
Id.
See Doebele, 157 F. Supp.2d at 1195. See also Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).
On a motion for summary judgment, the "judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." The standard for summary judgment mirrors the standard for directed verdict. The court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." "If the [c]ourt concludes a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment."
Liberty Lobby, 477 U.S. at 249.
Id. at 251-52.
Anderson v. City of Cleveland, 90 F. Supp. 2d 906, 907-08 (E.D. Tenn. 2000), citing Anderson v. Liberty Lobby, 477 U.S. at 251-52.
II. Facts
The following facts are either uncontroverted or, if controverted, construed in the light most favorable to the non-moving party. Immaterial facts and factual averments not properly supported by the record are omitted.
Plaintiff, Jackie Wilkins, was employed as a print operator in the defendant's printing department from 1989 until his discharge in 2002. At the time of the incident giving rise to this suit, plaintiff was working the evening shift. During the entire tenure of plaintiff's employment, defendant maintained a written attendance policy outlined in its Employee Handbook, distributed to all employees. Under the attendance policy, various unexcused absences are charged a certain number of points. Successive point totals within a one-year period can lead to progressive discipline, and the accumulation of more than nine points subjects an employee to discharge. While in defendant's employ, plaintiff received numerous "write-ups" for accumulated points. During most of plaintiff's employment, defendant also maintained a leave of absence policy, including a policy for leave under the FMLA. Prior to the incidents that gave rise to the instant lawsuit, plaintiff took periods of FMLA leave for his own medical conditions and to care for his ailing wife. During his employment tenure, plaintiff also availed himself of workers' compensation benefits, reporting various minor job-related injuries. Following all such past instances of leave, plaintiff was returned to his regular job duties.
During his evening shift on March 4, 2002, Plaintiff reported that wrist pain from which he suffered for some time had become acute. He believed this was a work-related injury and sought treatment for it that very evening at the Lawrence Memorial Hospital. The following day plaintiff saw Doctor Fevurly. After examining the plaintiff, Dr. Fevurly prescribed restrictions to his right arm activities and scheduled him for a follow up appointment within two weeks. Plaintiff then met with Ms. Deanna Hemming ("Hemming"), defendant's Benefits Coordinator, who determined that Plaintiff's restrictions were not consistent with his regular job duties in the printing department. Hemming offered plaintiff the choice of accepting a light duty position in the Quality Assurance ("QA") department or staying home without pay until he was able to return to his regular job. All QA work is done during the morning shift, which begins at 7 a.m., when the QA supervisor, Mark Quackenbush ("Quackenbush"), is on duty to oversee the employees.
Exhibit 7 to defendant's Memorandum in Support of Motion for Summary Judgment.
On March 7, 2002, plaintiff called Hemming around 8 a.m. and left a phone message informing her that he was not coming to work. In his message plaintiff indicated that he would begin his work on Monday, March 11, 2002. On March 11, plaintiff once again telephoned around 8 a.m. and left Hemming another message stating that he was not coming to work. On both occasions, plaintiff did not explain the reason behind his absence.
Plaintiff did report to work on Tuesday, March 12, at 7 a.m. That day plaintiff worked until 12:15 p.m., at which time he clocked out and never returned. At 3 p.m. that afternoon plaintiff was scheduled for another doctor's appointment in Shawnee Mission, KS. Defendant does not maintain a written policy regarding the amount of time its employees may take off to attend medical appointments. Defendant specifically informed the plaintiff that he needed to arrive at his doctor's appointment fifteen minutes early to complete the necessary paperwork. Plaintiff used the time between his departure from work and the appointment to eat lunch at his house, shower, change his clothes and drive to the doctor's office.
There appears to be some dispute regarding the start time of the appointment. In Defendant's Reply, defendant points out that new evidence shows the appointment to be actually at 3:45 p.m., not 3 p.m. However, plaintiff and a number of persons have testified that the appointment was, in fact, at 3 p.m. The court finds that the newly discovered evidence does not show anything other than the fact that Dr. Hendler actually saw the plaintiff at 3:45 and says nothing about the actual scheduled time of the appointment.
Under the defendant's attendance policy, missing a scheduled shift calls for the assessment of one attendance point. Failure to report an absence prior to the beginning of the shift that is missed is assessed a total of three attendance points. Early departure during any shift is assessed one-half attendance point. Accordingly, plaintiff was assessed three attendance points each for the March 7 and March 11 absences and a one-half attendance point for leaving early on March 12. Plaintiff was not assessed any points for his absence on March 8.
On March 13, 2002, the day after his doctor's appointment, defendant suspended the plaintiff until March 15, on which date the plaintiff was terminated. The decision to terminate the plaintiff was made by Mr. Kevin Woods ("Woods"), defendant's Human Resources Director. At the time of his termination, plaintiff had 14.5 attendance points. On March 19, 2002, the plaintiff participated in a termination review arranged by the defendant and conducted by two of the defendant's managers — David Yates ("Yates") and Ross Freese ("Freese"). Yates and Freese upheld the termination, concluding that the plaintiff was properly assessed points for the days he missed, that the overall circumstances of his termination were fair, and that policy had been followed.
III. Analysis
A. FMLA Claim
Plaintiff alleges that defendant violated the FMLA when it terminated his employment on March 15, 2002. Specifically, plaintiff argues that defendant wrongfully interfered with his FMLA rights and retaliated against him for attempting to exercise his FMLA rights. Defendant denies plaintiff's allegations and moves for summary judgment on the FMLA claim. Defendant asserts that the plaintiff is not entitled to FMLA protection because his alleged injury did not amount to a serious health condition protected by that statute.
1. Entitlement Theory
Plaintiff's first theory is that defendant should have designated his absences on March 7 through 12 as FMLA leave and not assessed him points for those days. The FMLA provides, in pertinent part, that an eligible employee shall be entitled to a total of 12 workweeks of unpaid leave during any 12-month period for various conditions, including the employee's own serious health condition that renders the employee unable to perform the functions of his or her position. Under this theory, plaintiff has the burden to show entitlement to FMLA leave, but need not show the employer's intent to interfere with FMLA leave.
Under the interference theory, if an employer interferes with an employee's FMLA-created right to a medical leave, it has violated the FMLA regardless of its intent. See Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002). In such a case, the employee must demonstrate her entitlement to the disputed leave. Id. The intent of the employer is immaterial. Id. If dismissal would have occurred regardless of the request for an FMLA leave, however, an employee may be dismissed even if dismissal prevents her exercise of her right to an FMLA leave. Id.
See 29 C.F.R. § 825.220(c) (FMLA leave cannot be counted under `no fault' attendance policies.").
Bones v. Honeywell International, Inc., 223 F. Supp. 2d 1203, 1213-14 (D. Kan. 2002), citing 29 U.S.C. § 2612.
Bones v. Honeywell Intern., Inc., 366 F.3d 869, 877 (10th Cir. 2004).
To establish a prima facie case under this theory, plaintiff must show "that [he] is entitled to the protections of the FMLA and that [his] employer interfered with, restrained, or denied the exercise of [his] rights under the Act."
Mardis v. Central Nat. Bank Trust of Enid, 1999 U.S. App. LEXIS 7261, *2 (10th Cir. April 15, 1999).
Plaintiff contends that he had a "serious health condition" because of the injury to his wrist, which required continuing treatment by a physician. Defendant denies that plaintiff's injury qualifies as a "serious health condition" and thus disputes plaintiff's entitlement to any FMLA leave.
29 C.F.R. § 825.114(a)(2) provides that a "serious health condition" entitling an employee to FMLA leave includes an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider. A "serious health condition involving continuing treatment by a health care provider" is defined to include a period of incapacity (i.e. inability to work . . . due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves treatment two or more times by a health care provider. The plaintiff must, therefore, "make a two-pronged showing of both an incapacity requiring absence from work [of more than three consecutive calendar days], and continuing treatment."
Bones, 223 F. Supp. 2d at 1214.
Defendant concedes that the plaintiff was undergoing a continuing course of treatment at the time of his discharge, but disputes that plaintiff's injury resulted in a period of incapacity of more than three consecutive calendar days. Defendant argues that the plaintiff cannot show that his injury required him to miss more than three consecutive calendar days because the plaintiff was released to light duty work by his physician and because the defendant provided him with light duty work.
Plaintiff disputes the defendant's assertion that he was not incapacitated for more than three days. Plaintiff argues that, despite his release to work with restrictions, he was incapable of performing the functions of his job. Plaintiff specifically states that from the date of his injury until the date of his termination he remained under the light duty restrictions and, therefore, unable to return to his original position. Plaintiff further claims that he did not believe himself capable of carrying out light duty functions on March 7, 8 and 11.
Defendant urges the court to discount plaintiff's testimony that he was not able to work and to rule that, based on objective medical evidence presented in the form of Dr. Fevurly's release to work with restrictions, plaintiff was not incapacitated for more than three consecutive days. In support of its position, defendant relies on Brannon v. Oshkosh B'Gosh, Inc. In Brannon, the court found no proof that the plaintiff was incapacitated for more than three consecutive calendar days where she stayed home from work but could not show that she was unable to work "due to" her illness. Brannon is distinguishable from the present case. In Brannon, the plaintiff reported to the defendant that she was absent for three and a half days because of an upper respiratory infection. The physician who examined the plaintiff diagnosed her with gastroenteritis, but did not place any restrictions on her return to work. And although the plaintiff's physician testified that it would have been reasonable for the plaintiff to be absent from work for three and one-half days, the court found that such "speculation" was "insufficient to prove that the absence was necessary."
897 F. Supp. 1028 (M.D. Tenn. 1995).
Brannon, 897 F. Supp. at 1037.
Brannon, 897 F. Supp. at 1031.
Id. at 1032.
Id. at 1037.
Here it is undisputed that the plaintiff's physician advised him that he could not perform the functions of his regular job. Although Dr. Fevurly released the plaintiff to work, he did so only after imposing restrictions that limited plaintiff's options to performing light duty work during a shift different from his own or staying home without pay. Defendant argues that because plaintiff was released to light duty work, defendant provided such work, and plaintiff admitted in a portion of his deposition that he was capable of performing the light duty work, plaintiff was not incapacitated within the meaning of the FMLA. However, plaintiff specifically stated that he did not believe himself capable of performing light duty until the morning of March 12, 2002, the day he eventually returned to Packerware. Furthermore, defendant's own records indicate that plaintiff's absences on March 5, 6 and 7 were considered "workers' compensation." It is not clear to the court why the absence on March 7, 2002, would be coded "workers' compensation" while the absence on March 11, 2002, the day which in every other way mirrored March 7, would be coded "unexcused." In support of its motion, defendant has not offered a completely satisfactory explanation for its different treatment of March 7 and March 11 absences or for its assessment of attendance points on a day that was coded in its own records as "workers' compensation."
Exhibit 5 to defendant's Memorandum in support of its Motion for Summary Judgment, Plaintiff's deposition, 72:14 — 73:14.
Exhibit 11 to defendant's Memorandum in support of its Motion for Summary Judgment.
Id.
As this court found in Wessel v. Enersys, plaintiff's testimony that he was incapacitated for more than three consecutive days alone is not sufficient to establish that he was suffering from a serious health condition protected under the FMLA. However, additional factors such as the physician's restrictions and the defendant's own attendance records cause this court to conclude that plaintiff has raised a triable issue of fact as to whether he was incapacitated for a period of more than three consecutive days. In other words, making all inferences in plaintiff's favor, it appears that he could not perform his regular job for more than three days and he may not have been able to perform light duty work during that time either. And if the plaintiff was, indeed, incapable of performing the light duty job, then a rational trier of fact could find that he was incapacitated for more than three consecutive days and thus entitled to FMLA protection. Therefore, defendant's motion for summary judgment with respect to plaintiff's FMLA claim is denied.
2005 U.S. Dist. LEXIS 3103, *18 (D. Kan. February 17, 2005).
Now that the court has denied the defendant's motion for summary judgment, it must turn to the plaintiff's motion for judgment as a matter of law on the issue of defendant's liability. As noted above, to establish a prima facie case of FMLA entitlement, plaintiff must show "that [he] is entitled to the protections of the FMLA and that [his] employer interfered with, restrained, or denied the exercise of [his] rights under the Act." The court has found above that the plaintiff has raised a triable issue of fact as to whether he was incapacitated for a period of more than three consecutive days. However, plaintiff has not conclusively demonstrated his entitlement to FMLA leave and, therefore, entry of judgment in his favor is not appropriate at this time.
Mardis, 1999 U.S. App. LEXIS 7261, *7.
2. Retaliation Theory
The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a).
To establish a prima facie FMLA retaliation claim, a plaintiff must show that (1) she availed herself of a protected right under the FMLA, (2) an employment decision adversely affected her, and (3) a causal connection between the two actions exists. Morgan v. Hilti, Inc., 108 F.3d 1319, 1325 (10th Cir. 1997). Once a prima facie case of discrimination is established, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for plaintiff's termination. If the defendant can do so, the burden shifts back to the plaintiff to produce evidence the employer's reason is a pretext for the retaliatory reason. Id. "A plaintiff can demonstrate pretext by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's reasons for its action, which a reasonable fact finder could rationally find unworthy of credence."
Chavez v. Thomas Betts Corporation, 396 F. 3d 1088, 1104 (10th Cir. 2005), citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997).
Defendant, having posited its motion for summary judgment on the argument that the plaintiff is not entitled to FMLA protection because he did not suffer from a serious health condition, does not address plaintiff's retaliation claim in particular. Therefore, the court will consider the plaintiff's motion for summary judgment on the issue of liability with respect to this claim. Having reviewed plaintiff's Memorandum in Support of Motion for Summary Judgment in great detail, the court is forced to note that plaintiff's discussion of his FMLA retaliation claim is incomplete. The last paragraph on page 34 of that document reads as follows:
In addition, "[P]rotected conduct closely followed by adverse action may justify an inference of retaliatory motive. . . . [T]he phrase `closely followed' must not be read too restrictively where the pattern of retaliatory conduct begins soon after the filing of the . . . complaint and only culminates
Plaintiff's Memorandum in support of his Motion for Summary Judgment, p. 34. (Doc. 42).
This sentence is followed by the heading "Conclusion" and by the conclusion itself to the plaintiff's memorandum. Whatever intention the plaintiff's counsel had to complete his arguments on the FMLA retaliation claim, he did not appear to have followed through with it. Plaintiff's Reply does not shed any more light on the nature of the arguments he intended to make in furtherance of his request for judgment. As such, the court is left with plaintiff's inconclusive memorandum in support of his motion and the defendant's response that generally disputes the applicability of FMLA to plaintiff's claims. The court cannot order summary judgment in favor of the plaintiff on such incomplete presentation of the evidence. It is possible that, after hearing plaintiff's argument in full, the jury would still conclude that the defendant did not retaliate against him in violation of the FMLA. But, because the court cannot usurp the function of the trier of fact, especially where the arguments before it are not fully developed, summary judgment in favor of the plaintiff on the question of FMLA retaliation must be denied.
B. Kansas Workers' Compensation Claim
In order to establish a prima facie case of retaliatory discharge under Kansas law, a plaintiff must prove the following:
(1) [he] filed a claim for workers' compensation benefits or sustained an injury for which [he] might assert a future claim for benefits; (2) defendants had knowledge of [his] workers' compensation claim or of [his] sustaining a work-related injury for which [he] might file a future claim for benefits; (3) defendants terminated [his] employment; and (4) a causal connection exists between [his] termination and [his] protected activity or injury.
Bones, 366 F.3d at 875, citing Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1193 (10th Cir. 2002); Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998).
Defendant contends that plaintiff has raised insufficient evidence to make out a prima facie case because he has demonstrated no causal connection between his workers' compensation injury and his termination. In addition, defendant argues that even if the court were to presume the existence of a prima facie case, plaintiff cannot show that defendant's proffered rreason that he was terminated for his attendance policy violations was a pretext for illegal retaliation.
To establish the requisite causal connection, a plaintiff must prove an unlawful intent on the part of the employer to terminate [him] because [he] had filed a workers' compensation claim or had sustained a work-related injury for which [he] might file such a claim.
Bones, 366 F.3d at 876, citing Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1116 (10th Cir. 2001).
Temporal proximity is often used to prove causation.
See Meiners v. University of Kansas, 359 F.3d 1222, 1231 (10th Cir. 2004).
Defendant argues that the plaintiff cannot establish a causal connection between his injury and his termination because it did not know nor should it have known that the absences for which the plaintiff was assessed points that eventually led to his termination were due to his wrist injury. Where, argues defendant, the plaintiff has presented no evidence that the defendant was aware or should have been aware that plaintiff's work injury caused him to miss work, no causal connection can exist between the injury and the termination. Plaintiff responds in two ways. First, plaintiff argues that he had informed his superiors that his absences were necessitated by his injury. And second, plaintiff notes that the temporal proximity between the injury and the termination is, by itself, compelling evidence of causation.
The court, after reviewing all the evidence, finds that, for the purposes of his summary judgment motion, the plaintiff has established a prima facie case of retaliatory discharge. The plaintiff has testified that he informed defendant's supervisory employees that he was absent from work because of his injury. Defendant's primary decision-maker, Kevin Woods, died in a car accident shortly after the plaintiff was fired; as such, the court is unable to determine whether Woods knew anything regarding plaintiff's absences. Defendant's other employees have testified that the plaintiff had never given a reason for his absences. The existence of such divergent views of these facts precludes the entry of summary judgment because the court cannot make credibility determinations and must leave fact-finding duties to the jury.
Exhibit 5 to defendant's Memorandum in support of its Motion for Summary Judgment, Plaintiff's Deposition, 174:3 — 175:9.
Causation may also be established through a showing of temporal proximity. In this case, plaintiff was injured on March 4, 2002. He did not return to work until March 12, the day of his second medical appointment, was suspended the very next day and fired on March 15, 2002. In other words, defendant suspended the plaintiff one day after his follow-up doctor's appointment and fired him 11 days after he reported his injury. The court finds that such temporal proximity is enough to satisfy the causation element of the prima facie case of retaliation. The evidence presented by the plaintiff raises a triable issue of fact as to whether defendant assessed points for absences which it knew or should have known were due to a work-related injury.
The burden shifts next to the defendant to articulate a non-retaliatory reason for the discharge. Defendant states that its reason for plaintiff's termination was because his absences exceeded the maximum permitted by its attendance policy and were unsupported by medical documentation. This is sufficient to raise a triable issue as to defendant's proffered legitimate, non-retaliatory reason for discharging plaintiff.
Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998).
See Bausman, 252 F.3d at 1120.
The burden shifts back to the plaintiff to produce evidence the defendant's proffered reason is a pretext for retaliation. Mere conjecture that the employer's explanation is a pretext is an insufficient basis for denial of summary judgment.
Pretext can be shown by "`such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.'"
See Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988).
Bausman, 252 F.3d at 1120 (quoting Olson v. General Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996) (further citation omitted).
The record must support a reasonable inference of retaliatory intent by the decision-makers. Plaintiff must show that, at the time of his discharge, "the decision-makers who terminated [his] employment were aware or should have been aware that the absences for which [he] was discharged were the result of a work-related injury." This "knew or should have known" standard "charges an employer with knowledge of those facts concerning an employee's workplace injury reasonably available to the employer at the time." This "rule of reason" must be applied even-handedly in balancing the interests of both the employer and its employees.
Bones, 366 F.3d at 876, citing Foster, 293 F.3d at 1193.
Bausman, 252 F.3d at 1121-22.
Id.
Plaintiff contends this burden is met because he told the defendant's managerial employees that he could not work because of his injury and yet they fired him for alleged attendance violations. Plaintiff further argues that the question of whether his 12:15 p.m. departure on March 12 was reasonable must be left to the determination of the jury. Defendant disputes that it knew or had any reason to suspect that plaintiff's absences were due to his wrist injury. Defendant points out that on the date of his termination, plaintiff had 14.5 attendance points — a level well beyond the 9-point threshold that subjects Packerware employees to termination. Plaintiff counters by arguing that the mere assessment of the 6.5 of these points evidences retaliatory intent because the dates for which the points were assessed, namely March 7, 11 and 12, were the very dates he was either unable to work or seeking medical treatment for the injury. Without these points, argues the plaintiff, his attendance record contained only 8.5 points. 8.5 points does not subject defendant's employees to termination.
Defendant states that plaintiff never informed its management of the cause behind his absences on March 7 and 11. Defendant further claims that plaintiff's early departure on March 12 was unreasonable and, therefore, punishable under the attendance policy. In support of its position, defendant points to its "long record" of allowing plaintiff to take both workers' compensation and FMLA leave and argues that it had no reason to retaliate against the plaintiff for taking medical leave for this claim. According to the defendant, plaintiff's failure to return to work when scheduled, to notify the defendant of his absence prior to the commencement of his scheduled shift, and to work longer on the day of his doctor's appointment were all legitimate reasons for point assessment, dispelling any retaliatory motive on the part of the defendant.
To bolster its position, defendant cites recent Kansas case authority holding that an employer may require all of its employees to comply with the terms of its attendance policy, including the obligation to report any injury-related absences to the employee's supervisors. However, Gonzalez also stands for the proposition that the application of the employer's call-in requirement to a particular employee is a question of fact. While defendant is correct to state that an employer may require its employees to comply with the attendance policy, it is not clear to the court that the plaintiff failed to do so on the days for which he was assessed points. Plaintiff has repeatedly asserted his understanding that, during the time his physical restrictions required him to remain on the light duty shift, he had an option of staying home without pay rather than reporting to work as scheduled. Plaintiff testified as follows to this effect during his deposition:
Gonzalez-Centeno v. North Central Kansas Regional Juvenile Detention Facility, 278 Kan. 427, 436 (2004) ("[Defendant's] lack of knowledge of Gonzalez' daily status made a call-in requirement necessary rather than superfluous.").
Gonzalez, 278 Kan. at 434 ("[W]hether an employer's discharging an employee for failing to call in an anticipated absence that results from a work-related injury gives rise to liability is a question of fact.").
A. . . . the way I had the understanding, for what I recollect, that [Hemming] had expressed it to where when you actually do start your work performance, the day you come into start work is the day that I will be held entitled to be there to do that work. And I had the understanding any time prior to that wouldn't be held — held, you know, prior, you know, towards me or anything. . . .
Q. Let me see if I understand what you just said?
A. I just felt — I felt like [Hemming] and I had poor communications.
Q. Let me under — let me see if I understand what you just said. It was your understanding that you were being offered light duty, but you didn't have to accept it, correct?
A. Yes.
Q. But that if you accepted it you were expected to be there —
A. Yes.
Q. — and work the schedule that you worked?
A. Yes, and that would — the day that I had started, came in and actually started working would be the day of accepting. That's the way I understood it from [Hemming].
Q. So you understood that — that it was entirely up to you whether to come and do light duty work or not?
A. The way [Hemming] presented it, yes. I felt like [Hemming] presented it, you know, that I felt like that's how she presented it to me.
Exhibit 5 to defendant's Memorandum in support of its Motion for Summary Judgment, Plaintiff's Deposition, 152:8 — 153:25.
Defendant contends that such an understanding as the one professed by the plaintiff is without any basis in reality and that its employees never conveyed to the plaintiff that he could choose to come and go with impunity while on light duty. However, the court may not, when considering a motion for summary judgment, select between two competing evidentiary views of the same fact. The question of reasonableness of the plaintiff's understanding is a matter for the jury. On this basis alone the court would be compelled to allow this claim to proceed to trial.
In addition, throughout its briefs the defendant suggests that its treatment of the plaintiff was strictly in accordance with its attendance policy and was not only fair, but also overly generous towards the plaintiff in every respect. However, defendant's own records show that two absences, which could appear to be identical in terms of their factual set up — namely the absences on March 7 and March 11 — were coded differently. March 7 was coded as "workers' compensation" whereas March 11 was coded as "unexcused." Yet, despite their inconsistent codes, both days appear to have been treated the same for purposes of assigning attendance points. Defendant offers no explanation for this inconsistency. Because the presence of such contradictory evidence could cause a reasonable factfinder to conclude that the defendant did not act for the asserted non-retaliatory reasons, the court finds that a triable issue of fact exists as to whether defendant's proffered legitimate reason for discharging the plaintiff is a pretext for unlawful retaliation.
Exhibit 11 to defendant's Memorandum in Support of its Motion for Summary Judgment.
Plaintiff also contends that the termination review conducted by Yates and Freese was a sham because neither manager had any understanding of the Kansas employment law. The court has reviewed the evidence presented by both sides regarding the termination review and finds that a reasonable jury could view it either as proof of defendant's non-retaliatory intent or as a sham designed to cover up improper motives. As such, the court concludes that factual disputes regarding the review also merit the denial of summary judgment on the Kansas workers' compensation claim in favor of either party.
For the foregoing reasons, defendant's motion for summary judgment is, therefore denied. Because the plaintiff has not conclusively demonstrated that defendant's rationale was pretextual or that he is otherwise entitled to judgment in his favor on this claim, plaintiff's motion for summary judgment is, likewise, denied.
IT IS THEREFORE ORDERED that defendant's Motion for Summary Judgment (Doc. 37) is denied.
IT IS FURTHER ORDERED that plaintiff's Motion for Summary Judgment (Doc. 41) is denied.