Knott v. Grede II, LLC

Filing 44

ORDER, GRANTING Defendant's 32 Motion for Summary Judgment; DENYING Plaintiff's 37 Motion for Summary Judgment; and finding as MOOT Defendant's 38 Motion to Strike. Signed by Judge Callie V. S. Granade on 1/28/2016. (copy to pltf) (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRIAN M. KNOTT,

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Plaintiff,
vs.
GREDE II, LLC,
Defendant.

CIVIL ACTION NO. 14-00287-CG-M

ORDER
This matter is before the Court on the Motion for Summary Judgment (Doc.
32), Brief in Support (Doc. 33), and Evidentiary Submission in Support (Doc. 34)
filed by Grede II, LLC (“Defendant”), the Motion for Summary Judgment in
Opposition (Doc. 37) filed by Brian M. Knott (“Plaintiff”), Defendant’s reply (Doc.
39), and Defendant’s Motion to Strike (Doc. 38). For the reasons set forth herein,
Defendant’s motion for summary judgment is due to be GRANTED, Plaintiff’s
motion for summary judgment is due to be DENIED, and Defendant’s motion to
strike is due to be DENIED AS MOOT.
I. BACKGROUND
Plaintiff, an African American male, was employed as an “NDT operator” by
Defendant, “a cast iron foundry and machine operations facility.” (Doc. 34-1, p. 14;
Doc. 33, p. 2). Plaintiff’s daughter had oral surgery in late April or early May of
2012. (Doc. 1-1, pp. 5-6; Doc. 34-1, pp. 26-27; Doc. 34-5, pp. 3-4). The daughter’s
physician certified to Defendant that Plaintiff would need time off to care for his

daughter from April 30th to May 9th, with no recurring flare-ups of her condition
expected. (Doc. 1-1, pp. 6-7; Doc. 34-5, pp. 4-5). Plaintiff claims that the certification
was faxed directly to Defendant from the physician and that he was never informed
of its contents. (Doc. 34-1, pp. 25, 27). Defendant alleges that Plaintiff had
numerous attendance issues during his employment and tried to improperly claim
several instances after his daughter’s surgery as FMLA leave. (Doc. 33, pp. 7-16).
Plaintiff contends that during this time period he was passed over for promotion to
a grinder position. (Doc. 34-1, p. 17). He claims he wanted the position because of its
accompanying work schedule, which would “reduce the amount of FMLA call-ins.”
(Doc. 1-1, p. 14). Upon receiving a tardy that exceeded the allowable amount under
Defendant’s attendance policy, Plaintiff was terminated. (Doc. 34-1, p. 23).
Plaintiff filed charges with a handful of federal and state administrative
agencies, including the United States Equal Employment Opportunity Commission,
to no avail. (Doc. 1; Doc. 37). Plaintiff subsequently filed this lawsuit against
Defendant. After sifting through Plaintiff’s muddled complaint and assorted
attached documents, the Court deduces that Plaintiff has two claims: racial
discrimination under Title VII of the Civil Rights Act of 1964 and wrongful
termination under the Family and Medical Leave Act.
II. ANALYSIS
A. The Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) instructs that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” The trial
court’s mission is to “determine whether there is a genuine issue for trial” and not
to “weigh the evidence.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986).
The burden is on the moving party to show that there is no genuine dispute
as to any material fact. Id. at 256. In conducting its summary judgment analysis,
the Court must construe all evidence “in the light most favorable to the party
opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
After the movant meets its burden, the burden shifts to the nonmoving party
“to make a showing sufficient to establish the existence of an element essential to
that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the
nonmoving party fails to do so, the “complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Id. at 323. Further, Rule 56 “requires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is
a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). There is no
genuine issue for trial “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
B. Pro Se Litigants
The pro se litigant’s road to trial is fraught with peril. Ever mindful of the

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difficulties that pro se litigants face, a trial court will hold pro se pleadings “to a less
stringent standard than pleadings drafted by attorneys.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998). The court will therefore “liberally
construe” the pro se pleadings. Fernandez v. United States, 941 F.2d 1488, 1491
(11th Cir. 1991). Despite this leniency, pro se litigants must “conform to procedural
rules.” Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002). A pro se litigant “is
subject to the relevant law and rules of court, including the Federal Rules of Civil
Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). The Local Rules
of this Court set out the following: “All persons proceeding pro se shall be bound by,
and must comply with, all Local Rules of this Court, as well as the Federal Rules of
Civil and Criminal Procedure, unless excused by Court order.” Gen. Local R. 83.5(a).
The Supreme Court has recognized that the “rules of procedure are based on the
assumption that litigation is normally conducted by lawyers,” stating that the Court
has “never suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without counsel.” McNeil
v. United States, 508 U.S. 106, 113 (1993). Pro se litigants proceed at their own
risk.
C. Title VII of the Civil Rights Act of 1964
Title VII prohibits employers from discriminating against employees based
on race. See 42 U.S.C. § 2000e-2 (2012). If an employee fails to alert a court to direct
evidence of discrimination, as is the case here, the claim must be analyzed under
the McDonnell Douglas framework, provided by the Supreme Court in McDonnell

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Douglas Corp. v. Green, 411 U.S. 792 (1973), and Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248 (1981). The employee must first “make out a prima facie case
of discrimination.” See Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1336
(11th Cir. 2015). If the employee succeeds, the burden shifts to the employer to
provide a nondiscriminatory reason for the adverse employment action. Id. If the
employer does so, the parties will then “litigate whether the employer’s proffered
reason for its action is pretext.” Id.
It appears that Defendant focuses on Plaintiff’s termination as giving rise to
the Title VII claim. For discrimination by termination, the employee must first
make out a prima facie case by showing “(1) that he is a member of a protected
racial class, (2) that he was qualified for the position, (3) that he experienced an
adverse employment action, and (4) that he was replaced by someone outside of his
protected class or received less favorable treatment than a similarly situated person
outside of his protected class.” Id. The Court agrees with Defendant that Plaintiff’s
termination was not Title VII discrimination. Plaintiff admitted that he was
unaware of any person outside his protected class who was treated more favorably.
(Doc. 34-1, p. 40). Further, Plaintiff admitted in his deposition that he has no
evidence that he was fired because of his race. Id. at 39-40. In fact, Plaintiff stated,
“You know, really my complaint is they fired me for tardies.” Id. at 40. Also, the
human resources manager of Defendant at the time of Plaintiff’s termination swore
in an affidavit that Plaintiff was fired because of attendance policy violations and
not because of race. (Doc. 34-2, p. 11). Plaintiff has failed to show a prima facie case

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of discrimination based on his termination, and Defendant is therefore entitled to
summary judgment.
Although Defendant interpreted Plaintiff’s poorly written complaint as
charging discrimination for his termination, the complaint appears to associate
discrimination with his being passed over for a promotion instead. (Doc. 1, pp. 1-2).
For failure to promote, the employee must make out a prima facie case of
discrimination by showing “(1) that the plaintiff belongs to a protected class; (2) that
she applied for and was qualified for a promotion; (3) that she was rejected despite
her qualifications; and (4) that other equally or less-qualified employees outside her
class were promoted.” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir.
2010). “Promotion” is defined as “[t]he act of promoting someone to a higher job,
grade, or rank, or the fact of being so promoted.” The American Heritage Dictionary
of the English Language 1410 (5th ed. 2011). Plaintiff admitted in his deposition
that the grinder position he was allegedly passed over for did not receive more in
salary or benefits and was not considered a promotion. (Doc. 34-1, p. 19). Plaintiff’s
claim is really for denial of transfer. Plaintiff did not apply for the position. Id. at
18. Rather, he claims that he was tricked into not applying, although he provides no
evidence other than mere speculation. Id. at 17-18, 40. Even assuming that is the
truth, the constructive denial of transfer did not result “in a serious and material
change in the terms, conditions, and privileges of employment,” and Plaintiff’s
“wages, benefits, or rank were not affected.” See Webb-Edwards v. Orange Cnty.
Sheriff’s Office, 525 F.3d 1013, 1032-33 (11th Cir. 2008); see also Harrison v. Int’l

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Bus. Machs. (IBM) Corp., 378 F. App’x 950, 954 (11th Cir. 2010) (unpublished).
Thus, Plaintiff has not suffered an adverse employment action based on his failure
to transfer positions. Plaintiff’s prima facie case of discrimination based on denial of
transfer fails, and Defendant is entitled to summary judgment.
D. Family and Medical Leave Act
The Family and Medical Leave Act (“FMLA”) provides that “an eligible
employee shall be entitled to a total of 12 workweeks of leave during any 12-month
period . . . [i]n order to care for the spouse, or a son, daughter, or parent, of the
employee, if such spouse, son, daughter, or parent has a serious health condition.”
29 U.S.C. § 2612(a)(1) (2012). The Act defines “[s]erious health condition” as “an
illness, injury, impairment, or physical or mental condition that involves (A)
inpatient care in a hospital, hospice, or residential medical care facility; or (B)
continuing treatment by a health care provider.” Id. § 2611(11).
The Act allows leave to “be taken intermittently or on a reduced leave
schedule when medically necessary.” Id. § 2612(b)(1). The employee is required to
provide the employer with notice in advance when the leave is foreseeable. Id. §
2612(e)(2). When the leave is not foreseeable, “an employee must provide notice to
the employer as soon as practicable under the facts and circumstances of the
particular case.” 29 C.F.R. § 825.303(a) (2015). The notice must “provide sufficient
information for an employer to reasonably determine whether the FMLA may apply
to the leave request.” Id. § 825.303(b). The notice “must explain the reasons for the
needed leave so as to allow the employer to determine whether the leave qualifies

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under the Act.” Id. § 825.301(b). Otherwise, the employee risks having the leave
request denied. Id. An employer may require “certification issued by the health care
provider of the eligible employee or of the son, daughter, spouse, or parent of the
employee . . . as appropriate. The employee shall provide, in a timely manner, a
copy of such certification to the employer.” 29 U.S.C. § 2613(a) (2012). The
certification must state:
(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the knowledge of the health
care provider regarding the condition;
(4)(A) for purposes of leave [to care for a family member], a statement
that the eligible employee is needed to care for the son, daughter,
spouse, or parent and an estimate of the amount of time that such
employee is needed to care for the son, daughter, spouse, or parent;
and
...
(7) in the case of certification for intermittent leave, or leave on a
reduced leave schedule, [to care for a family member], a statement that
the employee’s intermittent leave or leave on a reduced leave schedule
is necessary for the care of the son, daughter, parent, or spouse who
has a serious health condition, or will assist in their recovery, and the
expected duration and schedule of the intermittent leave or reduced
leave schedule.
Id. § 2613(b).
The FMLA provides for two causes of action for violations of the Act:
interference claims and retaliation claims. See Strickland v. Water Works & Sewer
Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001). For
interference, the Act states, “It shall be unlawful for any employer to interfere with,

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restrain, or deny the exercise of or the attempt to exercise, any right provided under
this subchapter.” 29 U.S.C. § 2615(a)(1) (2012). For retaliation, the Act states, “It
shall be unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by this
subchapter.” Id. § 2615(a)(2). The Code of Federal Regulations sheds some more
light on violations of the FMLA:
The Act’s prohibition against interference prohibits an employer from
discriminating or retaliating against an employee or prospective
employee for having exercised or attempted to exercise FMLA rights.
For example, if an employee on leave without pay would otherwise be
entitled to full benefits (other than health benefits), the same benefits
would be required to be provided to an employee on unpaid FMLA
leave. By the same token, employers cannot use the taking of FMLA
leave as a negative factor in employment actions, such as hiring,
promotions or disciplinary actions; nor can FMLA leave be counted
under no fault attendance policies.
29 C.F.R. § 825.220(c) (2015) (emphasis added). It is unclear whether Plaintiff is
asserting claims of interference, retaliation, or both, so each will be analyzed.
1. Interference
Interference requires an employee to show “that he was entitled to a benefit
under the FMLA and was denied that benefit.” Surtain v. Hamlin Terrace Found.,
789 F.3d 1239, 1247 (11th Cir. 2015).
In order to determine whether Defendant interfered with Plaintiff’s FMLA
rights, it is necessary to characterize Plaintiff’s attendance during the relevant
period leading up to his dismissal. The attendance policy in effect at the time of
Plaintiff’s termination tracked absences and the times when employees arrived late
or left early, colloquially referred to as “tardies” and “leave earlies,” respectively.

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The policy allowed for a maximum of four unexcused absences, twenty-one
unexcused and excused absences in total, six tardies, and six leave earlies in a
twelve-month period. (Doc. 34-4, p. 5). The total number of each category was
calculated on a rolling basis. Id. Upon reaching the maximum limit of any
particular category, the employee was reviewed for discharge. Id. Plaintiff was
terminated on February 22, 2013, so the relevant time period is from February 23,
2012, to the date of termination. In that time, a tally of the absence reports reveals
that Plaintiff accumulated five tardies (including the tardy on which his
termination was based), seven excused absences, four certified FMLA absences, one
unexcused absence, four personal days, fourteen absences Plaintiff claimed under
the FMLA, thirteen tardies Plaintiff claimed under the FMLA, and zero leave
earlies. (Doc. 34-2, pp. 8-10; Doc. 34-7, pp. 56-95).
The total of five non-FMLA-related tardies contradicts Defendant’s assertion
that Plaintiff was fired for accumulating six tardies in violation of the attendance
policy. The absence reports indicate that Plaintiff received non-FMLA-related
tardies on March 1, 2012, May 21, 2012, September 12, 2012, December 10, 2012,
and February 21, 2013. However, a meeting was held on September 25, 2012, where
Defendant informed Plaintiff that he had four tardies in his file at that time,
instead of the three revealed by the absence reports. (Doc. 34-8, p. 4). Plaintiff
confirmed this in his deposition, although he argued that he was given the four
tardies for FMLA-covered leave. (Doc. 34-1, pp. 25-26). It is unclear when Plaintiff
received the fourth tardy, and it is possible that he was given a tardy for one of the

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instances he was late for work in which he claimed coverage by the FMLA. Plaintiff
was also issued a written warning that he had accumulated five tardies on
December 13, 2012, which Plaintiff admitted in his deposition. (Doc. 34-6, p. 9; Doc.
34-1, pp. 30-31). Plaintiff admitted that he was fired upon receiving his final tardy
due to car trouble. (Doc. 34-1, p. 23).
Even if the extra tardy was assessed to Plaintiff based on one of the instances
when he purported to use FMLA leave, Defendant’s termination of Plaintiff did not
violate the FMLA. The certification for FMLA leave that Plaintiff obtained from his
daughter’s physician lists the period of leave from April 30, 2012, to May 9, 2012.
(Doc. 1-1, p. 6; Doc. 34-5, p. 4). The certification indicates that the physician did not
anticipate any “episodic flare-ups periodically preventing the patient from
participating in normal daily activities” and that the daughter would not “require
care on an intermittent or reduced schedule basis.” (Doc. 1-1, pp. 6-7; Doc. 34-5, pp.
4-5). Plaintiff also admitted in his deposition that he never requested that his
daughter’s doctor inform Defendant that Plaintiff needed more time off for his
daughter. (Doc. 34-1, p. 28). In fact, Plaintiff admitted that he has not taken his
daughter to see any physician about her condition since her surgery. Id. at 27.
Plaintiff claims that his daughter regularly experiences pain from the operation,
but he just gives her medication to ease her pain. Id. at 27-28. However, “activities
that can be initiated without a visit to a health care provider [are insufficient] to
constitute a regimen of continuing treatment for purposes of FMLA leave.” 29
C.F.R. § 825.113(c) (2015). The uncontroverted evidence shows that the treatment

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ended approximately on May 9, 2012, well before the onslaught of absences and
tardies that were claimed by Plaintiff to be covered by the FMLA. (Doc. 1-1, p. 6;
Doc. 34-5, p. 4). There is no indication that Plaintiff’s daughter suffered from the
statutorily-defined “serious health condition” on the days he claims under the
FMLA. Plaintiff has not shown by a preponderance of the evidence that he was
entitled to FMLA leave beyond the days covered by the physician’s certification.
Thus, Defendant is due to be granted summary judgment on the interference claim.
2. Retaliation
Retaliation requires the employee to “demonstrate that his employer
intentionally discriminated against him in the form of an adverse employment
action for having exercised an FMLA right.” Strickland, 239 F.3d at 1207. If the
employee lacks direct evidence that the employer intentionally retaliated against
him, as is the case here, the employee’s claim is subject to the McDonnell Douglas
framework provided by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981). See Strickland, 239 F.3d at 1207. For a prima facie case of retaliation, the
employee must show that “(1) he engaged in a statutorily protected activity; (2) he
suffered an adverse employment decision; and (3) the decision was causally related
to the protected activity.” Id.
Plaintiff suffered an adverse employment decision through his termination.
However, he fails to meet the other two elements. As discussed above, Plaintiff did
not engage in statutorily protected activity. The leave he claimed under the FMLA

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was not eligible for coverage. Further, because Plaintiff accumulated at least six
tardies, none of which were covered by the FMLA, viewing the evidence in the light
most beneficial to Plaintiff reveals that Defendant’s decision to fire Plaintiff was
based on his violation of the attendance policy and not any FMLA leave. Defendant
is entitled to summary judgment on this claim.
E. Plaintiff’s Motion for Summary Judgment
Plaintiff’s Motion for Summary Judgment in Opposition reads more like a
response to Defendant’s motion for summary judgment. (Doc. 37). Plaintiff “moves
for summary judgment” but only “urges the court to deny Grede II, LLC’s motion for
summary judgment.” Id. at 1. The Court found above that Defendant is entitled to
summary judgment on all claims. To the extent that Plaintiff’s motion can possibly
be interpreted as one for summary judgment, the motion is denied.
F. Defendant’s Motion to Strike
Because Defendant’s motion for summary judgment is due to be granted,
even when considering the information proffered by Plaintiff that Defendant wants
stricken, Defendant’s motion to strike is moot.
CONCLUSION
Defendant’s motion for summary judgment is hereby GRANTED, Plaintiff’s motion
for summary judgment is DENIED, and Defendant’s motion to strike is DENIED
AS MOOT.
DONE and ORDERED this 28th day of January, 2016.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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