Keeler v. Aramark

Filing 174

MEMORANDUM AND ORDER granting #118 Motion for Summary Judgment; terminating #157 Motion to Strike ; denying #166 Motion for Summary Judgment. Signed by District Judge Monti L. Belot on 8/11/2011.Mailed to pro se party Quincey Gerald Keeler by certified mail ; Certified Tracking Number: 70110110000213990892. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

QUINCEY GERALD KEELER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ARAMARK, et al.,
Defendants.

CIVIL ACTION
No.

08-1168-MLB

MEMORANDUM AND ORDER
This case comes before the court on the following motions:
1.

Defendants’ motion for summary judgment (Doc. 118) and

memorandum in support (Doc. 119)1, plaintiff’s response (Doc. 158) and
defendants’ reply (Doc. 163);
2.
response

Plaintiff’s

motion

(Doc.

plaintiff’s

161),

supplemental reply (Doc.

to

strike

(Doc.

157),

defendants’

reply

(Doc.

165),

defendants’

167) and plaintiff’s supplemental reply

(Doc. 172); and
3.

Plaintiff’s

motion

for

summary

judgment

(Doc.

166),

defendants’ response (Doc. 169) and plaintiff’s reply (Doc. 171).
I.

Motion to Strike (Doc. 157)
The court will first turn to the motion to strike plaintiff’s

deposition because it affects this court’s determination of the facts
in this case.

Plaintiff asserts that the court must strike his

deposition because he did not have the opportunity to review the
transcript and make necessary changes.
1

The motion for summary judgment was filed by Aramark and
defendant Larry Gengler has joined in the motion. (Doc. 160).

Plaintiff was deposed on March 31, 2010.

At his deposition he

informed the court reporter that he wanted the opportunity to review
the transcript.

The court reporter did not immediately issue a

transcript because defendants believed they needed to continue the
deposition at a later date. At some point, defendants determined that
they did not need to continue the deposition and discovery closed on
June 23, 2010.

Defendants filed their motion for summary judgment on

June 30, 2010. In their motion, defendants cited significant portions
of plaintiff’s deposition and attached the pages cited as exhibits.
Plaintiff did not immediately object to defendants’ filing.

Instead,

plaintiff filed a motion to compel pertaining to other discovery and
a motion to extend the filing of his response.

Plaintiff’s motions

were granted in part and plaintiff was given until March 7, 2011, to
file his response.

Plaintiff contemporaneously filed his motion to

strike with his response.
In their response, defendants stated that they had no knowledge
that plaintiff was never given an opportunity to review his deposition
for

errors.

Defendants

contacted

the

court

reporter

who

then

immediately supplied plaintiff with his deposition and an errata
sheet. Instead of reviewing his deposition, plaintiff refused to sign
the certification and errata sheet due to his belief that defendants
were at fault for using his deposition in the motion for summary
judgment prior to plaintiff’s review of the deposition.
Under Rule 30(f), “[e]xcerpts from depositions are not competent
summary judgment evidence unless the party offering them attaches a
copy of the court reporter's certificate certifying that the copy is
true and correct.”

Zhu v. Countrywide Realty, Co., Inc., 165 F.
-2-

Supp.2d 1181, 1194 (D. Kan. 2001).

In this case, defendants did not

submit the certificate when they attached the deposition.

However,

plaintiff was given an opportunity to correct his deposition and he
refused to do so for invalid reasons.

Moreover, plaintiff also has

not made any specific objection to portions of his deposition.
Therefore, the court will not strike the deposition for failure to
comply with Rule 30(e).2
Facts3

II.

Plaintiff was hired by Aramark in January 2006 as a food service
worker.

Plaintiff’s position is located in the cafeteria at Wesley

Hospital in Wichita, Kansas.

Upon his hiring, plaintiff was given a

copy of Aramark’s employee handbook.

As a food service worker,

plaintiff’s duties include cashiering, food preparation, filling
machines,

setting

up

food

areas,

stocking

customers, carving meat and cleaning tables.

condiments,

serving

On September 6, 2007,

plaintiff brought a doctor’s note stating he had been hospitalized
from August 28, 2007, to September 5, 2007, for a posterior neck

2

In any event, the court would not allow plaintiff to make
substantive changes to his deposition. See Rios v. Welch, 856 F.
Supp. 1499, 1502 (D. Kan. 1994)(“It is the court's belief that a
plaintiff is not permitted to virtually rewrite portions of a
deposition, particularly after the defendant has filed a summary
judgment motion, simply by invoking the benefits of Rule 30(e). As the
court stated in its previous order, a deposition is not a ‘take home
examination’ and an ‘errata sheet’ will not eradicate the import of
previous testimony taken under oath.”)
3

The following facts are either uncontroverted or, if
controverted, taken in the light most favorable, along with all
favorable inferences, to plaintiff. See Hall v. United Parcel Serv.,
No. Civ. A. 992467-CM, 2000 WL 1114841, at *5 (D. Kan. July 31, 2000)
(citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998)). To the extent relevant, the factual disagreements between the
parties will be noted.
-3-

abscess.

Plaintiff also produced an additional doctor’s note which

stated that he was unable to work until September 15.

Aramark

informed plaintiff that he qualified for FMLA leave for his absence.
On September 14, plaintiff delivered another doctor’s note to Aramark
which stated that plaintiff needed to be relieved from work until
October 1 because of a draining wound.

On September 27, plaintiff’s

doctor wrote an additional note which stated that plaintiff had a
Methicillin-resistant Staphylococcus Aureus infection (MRSA) and could
not work until October 31.

The note additionally stated that Aramark

was to contact the doctor if it approved of plaintiff working while
he had MRSA, a highly contagious infection.

Aramark did not allow

plaintiff to return to work until the doctor examined plaintiff’s
wound and determined it to be free of infection.

This is because

Wesley Hospital is required to follow the CDC Health Guidelines which
instruct that employees diagnosed with an MRSA infection with a
draining lesion are to be restricted from contact with patients and
food handling until the lesion has been resolved.
On October 25, plaintiff delivered another doctor’s note which
stated that plaintiff needed to be relieved of work until November 1.
On November 1, plaintiff again delivered a doctor’s note to Aramark
which stated that plaintiff could not return to work until November
2.

Plaintiff did return to work on November 2 as a food service

worker.

Plaintiff continued to work in the cafeteria and had similar

duties.

The work logs maintained by Aramark show that plaintiff

worked as a cashier for 165 days in 2006, 169 days in 2007 and 175
days in 2008.
Aramark initially scheduled plaintiff to work on November 1
-4-

based on the October 25 doctor’s note.

When plaintiff did not report

for work, Aramark marked an unexcused absence on plaintiff’s record.
Aramark corrected this absence at a later date.

All other alleged

unexcused absences which were noted during plaintiff’s medical leave
have been removed from plaintiff’s record.
Plaintiff filed a complaint against Aramark and various other
defendants in June 2008.

The court dismissed plaintiff’s claims

against all defendants except Aramark and Larry Gengler, plaintiff’s
supervisor,

and,

in

addition,

dismissed

several

remaining claims against Aramark and Gengler.

of

plaintiff’s

(Docs. 75, 86).

Aramark and Gengler now move for summary judgment on plaintiff’s
remaining claims.
III.

Plaintiff’s Pro Se Status
The court is mindful that plaintiff is proceeding pro se.

It

has long been the rule that pro se pleadings, including complaints and
pleadings
construed.

connected

with

summary

judgment,

must

be

liberally

See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.

1991); Hill v. Corrections Corp. of America, 14 F. Supp.2d 1235, 1237
(D. Kan. 1998). This rule requires the court to look beyond a failure
to cite proper legal authority, confusion of legal theories, and poor
syntax or sentence construction. See Hall, 935 F.2d at 1110. Liberal
construction does not, however, require this court to assume the role
of advocate for the pro se litigant.

See id.

Plaintiff is expected

to construct his own arguments or theories and adhere to the same
rules of procedure that govern any other litigant in this district.
See id.; Hill, 14 F. Supp.2d at 1237.

A pro se litigant is still

expected to follow fundamental procedural rules.
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Ogden v. San Juan

County, 32 F.3d 452, 455 (10th Cir. 1994).
III.

Summary Judgment Standards
The rules applicable to the resolution of this case, now at the

summary judgment stage, are well-known and are only briefly outlined
here.

Federal Rule of Civil Procedure 56(c) directs the entry of

summary judgment in favor of a party who "show[s] that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c).

An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
disposition of the claim.

Adamson v. Multi Community Diversified

Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

When confronted

with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party."
477 U.S. 242, 250 (1986).
judgment.
IV.

Anderson v. Liberty Lobby, Inc.,

If so, the court cannot grant summary

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Analysis
A.

FMLA Claims

Plaintiff brings claims for FMLA interference/entitlement and
discrimination/retaliation pursuant to 29 U.S.C. § 2615(a)(1) and
(a)(2), respectively.

The FMLA affords a qualified employee twelve

weeks of unpaid leave each year for serious health problems that
prevent

the

employee

from

performing
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his

job.

29

U.S.C.

§

2612(a)(1)(D). The FMLA requires an employer to reinstate an employee
to his former position or its equivalent upon the employee's timely
return from FMLA leave.

29 U.S.C. § 2614(a).

An employee may recover damages against the employer when it has
interfered with the right to medical leave or reinstatement following
medical leave.

29 U.S.C. § 2615; Smith v. Diffee Ford-Lincoln

-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002).
To make out a prima facie claim for FMLA interference, a
plaintiff must establish (1) that he was entitled to FMLA
leave, (2) that some adverse action by the employer
interfered with his right to take FMLA leave, and (3) that
the employer's action was related to the exercise or
attempted exercise of his FMLA rights.
Jones, 427 F.3d at 1319.
To state a prima facie case of retaliation, [a plaintiff]
must show that: (1) she engaged in a protected activity;
(2) [the defendant] took an action that a reasonable
employee would have found materially adverse; and (3) there
exists a causal connection between the protected activity
and the adverse action.
Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th
Cir. 2006).

If a plaintiff establishes interference with his FMLA

rights, then the employer bears the burden of proof on the third
element.

Id. at 1172.

Plaintiff has alleged a total of 11 claims under the FMLA.

Both

defendants and plaintiff have moved for summary judgment on all
claims.
1.

Claims 1, 2, 3, 4, 6, 8, 11

In these claims, plaintiff alleges that Aramark has violated the
FMLA by counting his absences on the days plaintiff was in the
hospital and on medical leave as “no fault” absences instead of leave

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under the FMLA.4

Aramark asserts that these claims must be dismissed

because Aramark has removed all of the erroneous notations from
plaintiff’s record.

Plaintiff responds that he is seeking relief in

the form of an injunction prohibiting defendants from future incorrect
attendance notations. Plaintiff cites to an exhibit in support of his
position that Aramark continues to improperly document his absences,
but plaintiff fails to demonstrate exactly where in the lengthy
exhibit the error occurred.
The

FMLA

permits

(Doc. 158 at 26).

recovery

for

"wages,

salary,

employment

benefits, or other compensation denied or lost," and “for such
equitable

relief

reinstatement,
(a)(1)(B).

as

and

may

be

promotion."

appropriate,
29

U.S.C.

including
§

employment,

2617(a)(1)(A)(i)(I),

The FMLA clearly allows plaintiff to seek damages other

than actual economic damages.

See Roseboro v. Billington, 606 F.

Supp.2d 104, 113 (D. D. C. 2009)(the plaintiff had a valid claim for
equitable relief when the defendant improperly documented his absences
as “absent without leave” and the court ordered the defendant to
expunge the plaintiff’s employment record of the wrongful charge.)
The problem with plaintiff’s position is that “§ 2617 provides
no relief unless the employee has been prejudiced by the violation.”
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S. Ct.
1155, 1161 (2002).
suffered.

Id.

And then, the remedy is tailored to the harm

Based on plaintiff’s own admissions, he has not

suffered any prejudice.

Plaintiff’s record is void of any unexcused

4

The record is somewhat confusing, but it appears that the
medical leave days were noted in his record as unexcused absences on
June 5 and September 22, 2008. (Doc. 158, exh. D at 11-12). These
notations have been corrected in plaintiff’s employment record.
-8-

absences and plaintiff has failed to provide evidence of any other
prejudice.

Moreover, plaintiff has provided no evidence that future

harms will occur.

In the absence of compelling evidence of a future

violation, the court cannot grant plaintiff injunctive relief.
Therefore, defendants’ motion for summary judgment on claims 1,
2, 3, 4, 6, 8, 11 is granted and plaintiff’s motion is denied.
2.

Claim 5

In claim 5, plaintiff contends that he was not paid on September
3, 2007, Labor Day, in violation of the FMLA.

Aramark’s Human

Resources Director Jeanne Doege submitted an affidavit which states
that Aramark does not offer Holiday pay to any employee who is on FMLA
leave or non-FMLA leave. (Doc. 130, exh. 9). Plaintiff contends that
Aramark’s written policy offers paid holiday leave to all employees
and cites to the policy in the handbook.

(Doc. 158, exh. E).

Aramark’s policy states that “In order to be eligible for holiday pay,
you must work the last regularly scheduled workday (full shift) before
the holiday and the first regularly scheduled workday (full shift)
following the holiday, unless the absence is previously approved by
your Manager.”

(Doc. 158, exh. E at 4)(emphasis supplied).

Contrary to plaintiff’s assertions, he has not controverted
Aramark’s statement of fact concerning holiday pay.

The policy cited

by plaintiff does not discuss holiday pay for those employees who have
taken leave.

The policy states that all full time employees will be

paid if they work the last workday prior to the holiday and the first
workday after.
leave.

Plaintiff did not work those days due to his medical

Additionally, the policy states that an employee would be

eligible for pay if he was absent prior to or after a holiday but only
-9-

if the absence has been previously approved.

In this case, plaintiff

has presented no evidence that his absence was approved by a Manager
prior to the Labor Day holiday.

The uncontested facts show that

plaintiff submitted his doctor’s note, which excused his absences the
last week of August and the first week of September, on September 6.
Therefore, plaintiff did not meet the condition of the policy and
would

not

receive

holiday

pay

regardless

of

Aramark’s

position

concerning holiday pay for employees who are on leave.
Defendants’ motion for summary judgment on claim five is granted
and plaintiff’s motion is denied.
3.

Claim 7

In plaintiff’s seventh claim, he alleges that he lost pay during
September and October because Aramark refused to allow him to return
to work even though he had been released by his doctor on September
15 to return to work as a cashier.

Apparently, plaintiff is relying

on the initial doctor’s note of September 6 which stated plaintiff
could return to work on September 15. (Doc. 130, exh. 11).

On

September 14, however, plaintiff presented a doctor’s note which said
that he could not work until “at least Oct 1" due to a draining wound.
(Doc. 130, exh. 12).

On September 27, plaintiff’s doctor wrote an

additional note stating that plaintiff had an MRSA and could not work
until October 31.

The note also states “Please notify me if pt can

return to work with the wound.”

(Doc. 130, exh. 10).

Plaintiff asserts that defendants violated his rights by refusing
to allow him to return to work on September 15 as a cashier even
though

plaintiff

admittedly

had

a

highly

contagious

infection.

Plaintiff contends that Aramark’s requirement of keeping them updated
-10-

on his medical condition somehow violated his rights under the FMLA.
Aramark had a legal right to request continuous updates concerning
plaintiff’s medical condition and to require plaintiff to have a
medical release prior to working.

Buettner v. N. Okla. County Mental

Health Ctr., 2005 WL 3164698, *4 (10th Cir. Nov. 29, 2005)(citing 29
CFR § 825.311).

The statements submitted by plaintiff’s doctor

clearly did not release plaintiff to work on September 15.

The

doctor’s note submitted on September 27 suggests that Aramark could
contact the doctor if it was possible for plaintiff to work with MRSA.
The note, however, is not a release to work.
Moreover, Aramark, operating inside a hospital, is justified in
stating that an employee with a contagious infection cannot be
permitted to work.

Those actions are not “actions that a reasonable

employee would have found materially adverse.” Metzler v. Federal Home
Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006)(emphasis
supplied). Therefore, plaintiff has failed to establish a prima facie
claim of retaliation under the FMLA.

Defendants’ motion for summary

judgment on claim seven is granted and plaintiff’s motion is denied.
4.

Claims 9 and 10

In these two claims, plaintiff asserts that Aramark violated the
FMLA by failing to reinstate him to his position of cashier. The FMLA
requires employers to restore an employee returning from FMLA leave
to either the same position or “an equivalent position with equivalent
employment

benefits,

pay,

and

other

terms

and

conditions

of

employment.” 29 U.S.C. § 2614(a)(1)(A)-(B). The regulation defining
an equivalent position focuses on the factors of equivalent pay,
equivalent

benefits,

and

equivalent
-11-

terms

and

conditions

of

employment. 29 C.F.R. § 825.215 (2000).
have

substantially

similar

duties,

An equivalent position must

conditions,

responsibilities,

privileges and status as the employee's original position.

Id. at §

825.215(e).
Plaintiff’s position prior to FMLA leave and after returning from
leave was “food service worker.”
that of a “cashier.”
“cashier.”

Plaintiff’s position has never been

Aramark does not have a job position entitled

The only evidence plaintiff points to in support that

there is such a position is a task checklist which is used daily at
Wesley Hospital. (Doc. 158, exh. G). This checklist does not support
plaintiff’s contention that there is a separate position of “cashier.”
Moreover, the undisputed facts show that plaintiff has the same duties
after his leave that he held prior to his leave. Therefore, plaintiff
is unable to show that Aramark has violated the FMLA for failing to
reinstate plaintiff to his prior position.
Defendants’ motion for summary judgment on claims nine and ten
is granted and plaintiff’s motion is denied.
B.

Negligence Claims

In claims fifteen, sixteen and seventeen, plaintiff states that
Aramark

has

negligently

management staff.

supervised,

retained

and

trained

its

Aramark asserts that these claims should be

dismissed because they are duplicative of the FMLA claims, citing Day
v. Excel Corp., No. 94-1439, 1996 WL 294341, *14 (D. Kan. May 17,
1996). Day held “a claim for negligent supervision is precluded where
there are adequate statutory remedies under state or federal law.”
Id. (citing Schweitzer-Reschke v. Avnet, Inc., 874 F. Supp. 1187 (D.
Kan. 1995).
-12-

Plaintiff’s claims appear to be based on his allegations set
forth in his FMLA claims.

Plaintiff asserts that Aramark employees

failed to investigate his complaints, improperly documents his FMLA
absences as unexcused absences and harassed him by instigating an
investigation. These internally inconsistent allegations are somewhat
different from his FMLA claims.

He also requests relief for his

mental stress and the continued retaliation by Aramark employees.
Relief for emotional damages is not available under the FMLA.
Moreover, the FMLA clearly provides that “Nothing in this Act or
any amendment made by this Act shall be construed to supersede any
provision of any State or local law that provides greater family or
medical leave rights than the rights established under this Act or any
amendment made by this Act.”

29 U.S.C. § 2651(b).

The language in

the statute supports a finding that plaintiff may pursue a state
remedy if it provides that plaintiff with greater rights.

See

Aldridge v. Indian Elec. Co-op., No. 07-633, No. 2008 WL 1777480, *4
(N.D. Okla. April 17, 2008).
Defendants also move for summary judgment on these claims on the
merits.
1.

Negligent Supervision and Retention

Plaintiff

has

alleged

claims

of

negligent

supervision

and

retention against Aramark due to an alleged denial of his FMLA rights
and the improper notations in his record.

To establish negligent

supervision under Kansas law, plaintiff must show that “the employer
had reason to believe that an undue risk of harm to others would exist
as a result of the employment of the alleged tortfeasor” and “such
harm is within the risk.”

Estate of Sisk v. Manzanares, 262 F.
-13-

Supp.2d 1162, 1187 (D. Kan. 2002).

Plaintiff has failed to show that

Aramark had any reason to believe that a risk of harm to others would
result from the employment of Joe Neubaur, CEO of Aramark, or Jeanne
Doege.

Moreover,

plaintiff

has

failed

to

show

that

Aramark’s

employees’ conduct resulted in any harm to plaintiff because, as
previously discussed, plaintiff’s record has been corrected.
In order to establish a claim of negligent retention, plaintiff
must show that Aramark has retained an employee that it knows or
should have known is incompetent.

Beam v. Concord Hosp., Inc., 873

F. Supp.c 491, 503 (D. Kan. 1994).

Plaintiff must also establish

that Aramark “had reason to believe that an undue risk of harm to
others would exist as a result of the employment of the alleged
tortfeasor.”
(D.Kan.

Estate of Sisk v. Manzanares, 262 F. Supp.2d 1162, 1187

2002).

Plaintiff

has

not

met

his

burden.

Therefore,

defendant’s motion for summary judgment on these claims is granted and
plaintiff’s motion is denied.
2.

Negligent Training

Plaintiff has also alleged that Aramark was negligent in training
its staff on handling FMLA requests.

In order to state a claim of

negligent training, however, plaintiff must establish that Aramark had
a reason to believe that its employees were not properly trained.
Thomas v. County Comm’rs of Shawnee County, 40 Kan. App.2d 946, 961,
198 P.3d 182 (2008).

Plaintiff has failed to establish that Aramark

had reason to believe that its employees were not properly trained and
therefore his claim of negligent training cannot survive summary
judgment.

Aramark’s motion for summary judgment on this claim is

granted and plaintiff’s motion is denied.
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V.

Conclusion
Defendants’ motion for summary judgment is granted (Doc. 118) and

plaintiff’s motion for summary judgment is denied (Doc. 166).

The

clerk is directed to enter judgment in favor of Aramark and Gengler
and against plaintiff.
A motion for reconsideration of this order pursuant to this
court's Rule 7.3 is not encouraged.

The standards governing motions

to reconsider are well established. Comeau v. Rupp, 810 F. Supp. 1172
(D. Kan. 1992).

Any such motion shall not exceed three double-spaced

pages and shall strictly comply with the standards enunciated by this
court in Comeau v. Rupp.

If the motion does not comply with those

standards it will be stricken.

The response to any motion for

reconsideration shall not exceed three pages.

No reply shall be

filed.

IT IS SO ORDERED.
Dated this

11th

day of August 2011, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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