Robey v. Weaver Popcorn Company Inc

Filing 27

OPINION AND ORDER: Court GRANTS 22 Motion for Summary Judgment. Judgment is entered in favor of the Defendant and against the Plaintiff. Signed by Chief Judge Theresa L Springmann on 10/11/2017. (Copy mailed to pro se party)(tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LANCE B. ROBEY,

)
)
Plaintiff,
)
)
v.
)
)
WEAVER POPCORN COMPANY, INC., )
)
Defendant.
)

CAUSE NO.: 1:16-CV-281-TLS

OPINION AND ORDER
The Plaintiff, Lance B. Robey, has sued his former employer, Weaver Popcorn Company,
Inc. The Plaintiff alleges that the Defendant retaliated against him and interfered with his attempt
to secure leave under the Family Medical Leave Act (FMLA). This matter is before the Court on
the Defendant’s Motion for Summary Judgment [ECF No. 22], filed on August 17, 2017. The
Defendant maintains that the undisputed material facts show that the Plaintiff was not eligible for
FMLA leave. Further, the Plaintiff is not entitled to recover for retaliation because he cannot
establish that there was a causal connection between his attempt to take leave and his termination
from employment, that he was meeting his employer’s legitimate expectations, that similarly
situated employees who did not engage in protected activity were treated more favorably, or that
the Defendant’s non-retaliatory reasons for taking the adverse actions were a pretext for
retaliation.

BACKGROUND
On June 24, 2016, the Plaintiff, proceeding pro se, filed a Complaint in state court against
his former employer. The Defendant removed the matter to federal court on grounds that the

Plaintiff’s Complaint contained a claim under the FMLA, 29 U.S.C. § 2601, et seq. In addition to
invoking federal question jurisdiction pursuant to 28 U.S.C. § 1331, the Defendant asserted that
any remaining state law claims were removable pursuant to 28 U.S.C. § 1441(c).
On August 17, 2017, the Defendant filed its Motion for Summary Judgment, requesting
that the Court enter judgment in its favor as a matter of law. On this same date, the Defendant
filed a Notice of Summary Judgment Motion [ECF No. 25], advising the Plaintiff of the
implications of the Motion, his response obligations, and the consequences of failing to read and
carefully follow Federal Rule of Civil Procedure 56 and Northern District of Indiana Local Rule
56-1. The Plaintiff has not filed a response to the Defendant’s Motion for Summary Judgment, or
asked for any extensions of time to do so.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Summary judgment is the moment in litigation where the non-moving party is required to
marshal and present the court with evidence on which a reasonable jury could rely to find in his
favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). “To survive
summary judgment, the nonmoving party must show evidence sufficient to establish every
element that is essential to its claim and for which it will bear the burden of proof at trial.”
Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir. 2016) (first quoting Life
Plans, Inc. v. Sec. Life of Denver Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015); then citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). To determine whether a genuine dispute of

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material fact exists, the Court must construe all facts in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party’s favor. See Ogden v. Atterholt,
606 F.3d 355, 358 (7th Cir. 2010). This does not extend to inferences that are “supported by only
speculation or conjecture,” Williams v. Brooks, 809 F.3d 936, 944 (7th Cir. 2016) (quoting
Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)), and “[c]onclusory allegations
alone cannot defeat a motion for summary judgment,” Thomas v. Christ Hosp. & Med. Ctr., 328
F.3d 890, 892–93 (7th Cir. 2003).
At the summary judgment stage, the Court does not consider an assertion of fact unless it
is supported by “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R.
Civ. P. 56(c). If a party “fails to properly address another party’s assertion of fact as required by
Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.” Fed. R.
Civ. P. 56(e). Finally, material facts are those that are outcome determinative under the
applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997).

MATERIAL FACTS
The Defendant is a manufacturer of popcorn products with a production facility in
Van Buren, Indiana. In June 2012, the Defendant hired the Plaintiff as a machine operator.
According to the Defendant’s Attendance Policy, which was provided to the Plaintiff as
part of the Associate Handbook, an employee will receive a written warning #1 if the employee
has, in a rolling six month period, either (1) three unexcused tardies, late arrivals, and/or leave

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earlies, or (2) two unexcused absences. Another unexcused absence, late arrival, or leave early
within ninety days of earning the written warning #1 will result in a written warning #2. Another
unexcused absence, late arrival, or leave early within a ninety day period after earning a written
warning #2 results in termination of employment. Approved FMLA absences are excused
absences under the Attendance Policy.
At around 2:45 p.m. on May 22, 2014, the Plaintiff’s lanyard with retractable cord caught
on a stationary ladder that he was hurriedly passing. It caused him to fall, and the Plaintiff heard
a pop in his back. During his break, the Plaintiff went to his car, took a couple of over-thecounter pain relievers, and finished the remainder of his shift, which ended at 4:45 p.m. He was
not able to sleep that night and arrived late to work the next day, May 23. That day, the Plaintiff
was issued a written warning #1, with an effective date of May 9, 2014, which stated that the
Plaintiff had unexcused absences on March 4, March 5, and March 28, 2014. The March 4 and 5
absences were counted as one occurrence. Because the Plaintiff was late to work on May 23, he
was also issued a written warning #2. The listed absences were the same absences from the
warning #1 plus a partial absence for his late arrival on May 23. The Plaintiff complained about
being issued both his written warning #1 and written warning #2 on the same date, May 23, even
though the first one had an effective date of May 9.1
According to the Defendant’s written work-related injury policy, employees must
“immediately” report any “work-related accident . . . no matter how small” to the employee’s
1

The Defendant’s Chief Financial Officer testified, by affidavit, that the Defendant relies on the
effective date of a written warning, rather than its issuance date, when administering its Attendance
Policy. He explained that written warnings may not be issued on the actual date of a violation for various
reasons, such as the unavailability of the issuing manager, or administrative oversight. As a consequence,
it is not unusual for an employee to receive two written attendance warnings on the same date with
different effective dates.

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team leader. (Ex. 6 to Robey Dep., ECF No. 24-1 at 29.) The Plaintiff did not report his accident
to any management representative either when it occurred, or during the remaining two hours of
his shift. Instead, the Plaintiff reported the injury by sending a text message to the Defendant’s
Safety Manager, Dudley Berthold, that was time stamped 5:40 p.m. That evening, he also sent a
text message to his supervisor, Team Leader Corey Watson. On May 23, the Defendant
suspended the Plaintiff pending further investigation into why he did not timely report his
accident as required by the Defendant’s policy. The suspension was in place until May 27, 2014.
On May 27, the Plaintiff was seen at RediMed, the Defendant’s worker’s compensation
medical provider. Dr. Julie Stark cleared the Plaintiff to return to work that day. The Defendant
made three attempts to contact the Plaintiff to advise him that he was still employed and to
arrange for his return to work on May 28. The Plaintiff did not agree with Doctor Stark’s
assessment, and he did not go to work on May 28. Instead, he contacted Jenna Valentine in the
Defendant’s Human Resources department through text message, indicating that he did not agree
with the doctor’s assessment and was hurt. On the morning of May 29, Valentine emailed the
Plaintiff information concerning how to apply for FMLA leave.
The Defendant outsources administration of its FMLA leave to a third-party
administrator named FMLASource. The Plaintiff completed paperwork to request intermittent
leave from May 30, 2014, through the following May. FMLASource required that the Plaintiff
provide it with medical certification by June 17 to support the request. The Plaintiff also
requested continuous leave from May 28, 2014, through June 4, 2014. Medical certification for
that request was also due by June 17 before FMLASource would approve the leave.
In a letter dated June 18, 2014, FMLASource informed the Plaintiff that his request for

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intermittent leave was denied because no medical certification had been received. It denied the
Plaintiff’s request for continuous leave for the same reason. Meredith Pitts from the Defendant’s
Human Resources department contacted the Plaintiff by email to tell him that the FMLA
certification paperwork had not been received, and the third-party vendor had denied his request.
She advised that, because he already had a level 2 written warning for attendance and his leave
had not been approved, his employment would normally be terminated as of that day. However,
the Defendant was giving the Plaintiff five additional days to supply the certification. Pitts
advised the Plaintiff that if the paperwork was received by June 24, and his leave was approved,
his employment would continue. However, if his leave was not approved, the Defendant would
terminate his employment per the attendance policy.
FMLASource received medical certification, but the documentation did not cover the
Plaintiff’s absences for May 28, 31, June 1, or 2. No medical provider excused the Plaintiff from
work on those dates due to his medical condition. As a result, FMLASource never approved his
FMLA leave request. The Defendant’s Human Resources department notified Robey by text
message on June 24, followed up by certified letter on June 26, that his employment was
terminated on June 24 for violating the Attendance Policy as a result of having an additional
unexcused absence within ninety days after the May 23 effective date of his written warning #2.

ANALYSIS
In its Motion for Summary Judgment, the Defendant analyzes the Plaintiff’s claim under
a retaliation theory. The FMLA provides that it is unlawful for any person to “discharge or in
any other manner discriminate against any individual for opposing any practice made unlawful”

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by the FMLA. 29 U.S.C. § 2615(a)(2). The Act also makes it unlawful to “discharge” or
“discriminate” against a person for taking part in proceedings or inquiries under the FMLA. 29
U.S.C. § 2615(b). The Court will take the same approach as that advanced in the Defendant’s
Motion, and will analyze whether a reasonable jury could conclude that the Defendant retaliated
against the Plaintiff for his FMLA activity. However, the Plaintiff’s allegations also appear to
include an FMLA interference claim. The Plaintiff believes that he was entitled to receive
FMLA leave but that his employer interfered so that he could not get it, which then led to his
unexcused absences and termination. (See, e.g., Pl.’s Dep. 84, ECF No. 24-1.) To advance an
interference claim, the Plaintiff must present evidence upon which a jury could rely to find that
his employer denied him FMLA benefits to which he was entitled. See Goelzer v. Sheboygan
Cty., Wis., 604 F.3d 987, 993 (7th Cir. 2010) (setting forth elements of an FMLA interference
claim).
Although the Defendant does not specifically analyze an interference claim, it presents
evidence in the context of the retaliation claim to show that the Plaintiff did not engage in
protected activity, and this evidence is also relevant to the interference claim. The Defendant
designates evidence that its third-party provider denied the Plaintiff leave because he failed to
provide the requisite medical certification. It is not improper to require medical certification, so
the failure to timely return the medical certification is evidence that undermines any claim that
the Plaintiff was entitled to benefits. See Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832,
837 (7th Cir. 2014) (“When an employee initially requests FMLA leave, the employer may take
the employee at his word and grant the request, or ‘may request certification by the employee’s
healthcare provider.’”) (first citing Kauffman v. Fed. Exp. Corp., 426 F.3d 880, 886 (7th Cir.

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2005); then citing 29 U.S.C. § 2613(a))). Although the Plaintiff acknowledges that he did not
provide timely certification, he claims this was because the RediMed doctor, who was going to
sign his medical certification, changed his mind because Dudley Berthold, the Defendant’s
Safety Manager, directed him not to sign it. (Pl.’s Dep. 84.) In making this claim, the Plaintiff
himself recognized that his allegation was based on conjecture:
That’s speculation. You’re right. But I just know what [Berthold] said, hey, this
guy’s not hurt. We need to get rid of him. He’s troublesome. And, like I said, that’s
speculation based on what I’ve learned in my life and what I’ve seen. And I know
that, working there, that [the doctor and Berthold] obviously know each other and
that [Berthold] interfered in the process of treatment.
(Pl.’s Dep. 84–85.)
Uncorroborated testimony cannot prevent summary judgment if the claim is based on
“speculation, intuition, or rumor” or is inherently implausible. Darchak v. Chi. Bd. of Educ., 580
F.3d 622, 631 (7th Cir. 2009) (citing Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003)). As
“speculation may not be used to manufacture a genuine issue of fact,” Springer v. Durflinger,
518 F.3d 479, 484 (7th Cir. 2008) (quoting Amadio v. Ford Motor Co., 238 F.3d 919, 927 (7th
Cir. 2001)), and speculation is all that the Plaintiff offers in support of claim that the Defendant
denied him FMLA benefits to which he was entitled, there is no admissible evidence in the
record before the Court that the Defendant interfered with any attempt by the Plaintiff to receive
FMLA leave. The Plaintiff does not present any evidence that would permit a reasonable jury to
believe his version of events—that the RediMed doctor would have provided the medical
certification but for Berthold’s interference. Accordingly, the Court will grant summary
judgment in favor of the Defendant on the Plaintiff’s interference claim.
The Plaintiff also alleges that his employment was terminated because he was injured and

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sought FMLA leave, which the Court construes as a retaliation claim. Claims of retaliatory
discharge under the FMLA are analyzed in the same manner as retaliatory discharge claims
under other employment statutes, such as Title VII and the ADA. See Buie v. Quad/Graphics,
Inc., 366 F.3d 496, 503 (7th Cir. 2004); see also Malin v. Hospira, Inc., 762 F.3d 552, 562 (7th
Cir. 2014) (stating that the “same model of proof” applied to both the plaintiff’s “Title VII and
FMLA retaliation claims”). Accordingly, to survive summary judgment, the Plaintiff must point
to evidence supporting a reasonable inference that he was fired because he engaged in protected
activity. See Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017);
see also id. at 697 (“[T]he dispositive question remains whether a reasonable jury could find a . .
. causal link between the protected activities and adverse actions at issue”); Tibbs v. Admin.
Office of the Ill. Cts., 860 F.3d 502, 505 (7th Cir. 2017) (“The critical question” at the summary
judgment stage “is simply whether the inference of unlawful intent is reasonable.”).
A plaintiff can rely on circumstantial evidence to show retaliatory motive, such as
“suspicious timing, ambiguous statements, treatment of similarly-situated employees, and any
other relevant information that could permit an inference of retaliation.” Burton, 851 F.3d at 697.
However, if the Defendant has presented non-retaliatory reasons for its action, “the true question
is whether the proffered reasons were pretext for retaliation.” Id. (citing Majors v. Gen. Elec.
Co., 714 F.3d 527, 539 (7th Cir. 2013)).
Pretext “involves more than just faulty reasoning or mistaken judgment on the part of the
employer; it is [a] lie, specifically a phony reason for some action.” Burton, 851 F.3d at 698
(quoting Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 864 (7th Cir. 2015)). Merely
disagreeing with an employer’s reason does not meet this standard. See Liu v. Cook Cty., 817

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F.3d 307, 316 (7th Cir. 2016) (“‘The question is not whether the employer’s stated reason was
inaccurate or unfair, but whether the employer honestly believed the reason it has offered’ for the
adverse action.” (quoting O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011))).
“[T]he question is never whether the employer was mistaken, cruel, unethical, out of his head, or
downright irrational in taking the action for the stated reason, but simply whether the stated
reason was his reason: not a good reason, but the true reason.” Forrester v. Rauland-Borg Corp.,
453 F.3d 416, 418 (7th Cir. 2006).
The Plaintiff points to various circumstances that he believes are suspicious and reveal an
unlawful motive for his termination. For example, the Plaintiff thinks it suspect that he was given
two attendance warnings on the same date, immediately after he was injured. A failure to follow
normal procedures can support an inference of unlawful motives. See Jajeh v. Cty. of Cook, 678
F.3d 560, 572 (7th Cir. 2012). But the Defendant has presented evidence that it relied on the
effective date of the warnings, rather than the issuance date, to administer its Attendance Policy.
Moreover, it was not uncommon for a warning’s issuance date to be after the effective date, or
for two warnings with different effective dates to be issued on the same date. The Defendant has
identified other employees who were issued multiple attendance warnings on the same day for
violations that had different effective dates. These employees, Clyde Hosier, Charles West, and
Stephanie Hoffacker, were also subsequently terminated for incurring an additional attendance
violation within ninety days of the effective date of the second warning. None of these
employees requested or took FMLA Leave. Thus, while the Plaintiff may believe that there are
flaws in the Defendant’s administration of its policy, he does not provide any evidence that these
flaws were a cover for retaliation.

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Nor does he present any evidence that his employer did not honestly believe that the
Plaintiff had already received a written warning #2 when it referred him to FMLASource. When
the Plaintiff did not submit supporting medical documentation, the Defendant gave the Plaintiff
additional time to show that his absences should be FMLA-approved. When that certification did
not excuse his absences, the Defendant acted pursuant to its uniformly enforced Attendance
Policy. The Policy is facially legitimate and, as the Seventh Circuit has reiterated often, courts
“do not sit as a super-personnel department,” examining the wisdom of employers’ business
policies and decisions. See Widmar v. Sun Chem. Corp., 772 F.3d 457, 464 (7th Cir. 2014);
Traylor v. Brown, 295 F.3d 783, 790 (7th Cir. 2002). The Defendant can administer its
Attendance Policy in the manner it deems fit, as long as it does not use it to adversely impact
employees who engage in protected activity.
The Plaintiff also disagrees with the suspension he received while the Defendant
investigated his failure to timely report his work accident. Again, he has not presented any
evidence to suggest that the Defendant was not acting in accordance with its written policies.
Nor is there any evidence that the suspension impacted his eligibility for FMLA leave. None of
the suspension dates were counted against the Plaintiff’s attendance record.
The Plaintiff, if he had responded to the Motion for Summary Judgment, may have
attempted to rely on temporal proximity as circumstantial evidence of his employer’s motive.
“[S]uspicious timing must be evaluated in the context of the whole record.” Taylor–Novotny v.
Health Alliance Med. Plans, Inc., 772 F.3d 478, 495–96 (7th Cir. 2014). “Deciding when the
inference [of causation] is appropriate cannot be resolved by a legal rule; the answer depends on
context, just as an evaluation of context is essential to determine whether an employer’s

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explanation is fishy enough to support an inference that the real reason must be discriminatory.”
Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011). In addition to suspicious
timing, a plaintiff must ordinarily present other evidence that the employer’s explanation for the
adverse action was pretext for retaliation. Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857,
864–65 (7th Cir. 2015); Simpson v. Office of Chief Judge of Cir. Ct. of Will Cty., 559 F.3d 706,
713–14 (7th Cir. 2009). The context of this case, and the absence of other evidence that the
Defendant’s actions were a pretext for retaliation, does not warrant an inference of causation.
The Plaintiff did not merely request FMLA leave and then experience an adverse employment
action. The third-party administrator denied the leave for failure to timely submit the required
medical certification, and the Plaintiff was absent on May 28, 31, June 1, and 2. These absences
occurred within ninety days of having received a written warning #2. The Defendant has
supplied evidence that every employee who has had a third attendance violation within ninety
days of earning a written warning #2 has been terminated from the Defendant’s employment.
(Hamilton Aff. ¶ 3.e.) The Plaintiff may not have agreed with the assessment of the medical
providers, but he has no evidence that the Defendant did not honestly believe that he had not
been approved to take FMLA leave for any of the days he was absent.
Because the Plaintiff has failed to advance sufficient evidence that would permit a
reasonable fact finder to conclude that there was a causal connection between the termination of
his employment and his attempt to take FMLA leave, summary judgment for the Defendant on
the Plaintiff’s FMLA retaliation claim is appropriate.

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CONCLUSION
For the reasons stated above, the Court GRANTS the Defendant’s Motion for Summary
Judgment [ECF No. 22]. The Clerk is directed to enter judgment in favor of the Defendant and
against the Plaintiff.
SO ORDERED on October 11, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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