Parks v. UPS Supply Chain Solutions, Inc.

Filing 49

MEMORANDUM OPINION & ORDER: It is ordered 1) Defendant's 28 MOTION for Summary Judgment is GRANTED with regard to Plaintiff's claims for FMLA retaliation and common law wrongful discharge and DENIED with respect to Plaintiff's claims for FMLA interference and ADA/KCRA failure to accomodate; 2) STATUS CONFERENCE set for 2/27/2014 at 11:30 AM in COVINGTON before Judge David L. Bunning.. Signed by Judge David L. Bunning on 02/04/2014.(TED)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 11-404-DLB-CJS
GENE PARKS

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

UPS SUPPLY CHAIN SOLUTIONS, INC.

DEFENDANT

**********************
I.

Introduction

This matter is before the Court on UPS’ motion for summary judgment on Gene
Parks’ employment discrimination claims under the Family and Medical Leave Act, the
Kentucky Civil Rights Act and Kentucky common law (Doc. # 28). In its motion, UPS
argues that Parks failed to establish a prima facie case of FMLA interference or retaliation
because he did not demonstrate that there was a causal connection between his use of
FMLA leave and his termination. Second, UPS asserts that Parks failed to establish a
prima facie case of disability discrimination under the Kentucky Civil Rights Act. Third,
Defendant argues that the FMLA preempts Plaintiff’s claim for wrongful discharge in
violation of public policy. The Court has removal jurisdiction over this matter pursuant to
28 U.S.C. §§ 1331, 1441, and 1446.
II.

Factual and Procedural Background

In February 1999, Defendant UPS Supply Chain Solutions, Inc. (hereinafter “UPS”)
hired Plaintiff Gene Parks (hereinafter “Parks”) to work at its Hebron campus. (Doc. # 32
1

at 61). As a material handler assigned to UPS’ Honeywell account, Parks’ job duties
included driving a forklift, moving boxes, picking products and controlling inventory. (Id. at
62-68).

Supervisor TJ Lovelace (hereinafter “Lovelace”) characterized Parks as an

“average” employee who sometimes worked diligently throughout his shift and sometimes
slacked off. (Doc. # 29-1 at 16). Although Lovelace did not recall having any specific
problems with Parks when he worked on the Honeywell account, the record indicates that
Parks’ work was not always accurate. (Docs. # 32 through 38). Between 2002 and 2009,
Parks’ supervisors filled out fifteen SCS Discrepancy Forms detailing his errors in pallet
building, putaway and labeling. (Id.).
While assigned to the Honeywell account, Parks took a leave of absence on several
occasions. (Doc. # 32 at 84). In late 2003, Parks requested time off to recover from an
allergic reaction and a blood clot. (Id. at 84; Docs. # 35-3 and 35-4). Parks also took leave
in July 2003 and November 2004 to deal with complications from a shoulder injury that he
sustained in a car accident a few years earlier. (Id.; Docs. # 35-2 and 35-6). In June 2004,
January 2005 and February 2006, UPS gave Parks more time off to care for his ailing wife,
who suffers from a heart condition. (Id. at 85; Docs. # 35-5, 32-6 and 32-7). By Parks’ own
admission, UPS never interfered with him taking leave on these occasions. (Id. at 91).
In 2009, UPS transferred Parks to the new Birkenstock account, where he continued
to work as a material handler under the supervision of Khris Jacobs (hereinafter “Jacobs”)
and Jennifer Valdez (hereinafter “Valdez”). (Id. at 62). Around this time, Parks began
experiencing severe neck pain. (Doc. # 32-9). When his pain persisted, Parks applied for
FMLA certification from UPS’ Human Resources Department.

(Doc. # 32-10).

In

accordance with company policy, Parks asked his physician to complete the necessary
2

paperwork, then submitted it to a Human Resources Representative. (Docs. # 30-1 at 17
and 33 at 11). On February 1, 2010, Parks was approved for FMLA intermittent leave,
which allowed him to take up to twelve weeks of leave per year to cope with flare-ups or
receive medical treatment. (Doc. # 32-10). Parks’ supervisors, aware of his certification,
gave him time off for a series of cortisone injections and repeatedly told him to go home
when he began experiencing flare-ups on the job. (Docs. # 31-5, 31-7 and 32-19).
However, Parks’ paperwork indicated that he was capable of performing all essential job
functions in between flare-ups. (Id.).
UPS’ “progressive discipline policy” is designed to address a variety of employee
infractions, including sub-par performance, safety violations, misconduct, rule violations,
tardiness and insubordination. (Doc. # 28-2 at 1). Supervisors typically issue informal
“verbal warnings” to first time offenders, then resort to first, second, third and final written
warnings for subsequent infractions. (Id.; Doc. # 29-1 at 28). Termination is the final step
in the disciplinary process. (Doc. # 29-1 at 29). Management has discretion to deviate
from this process and proceed straight to a final written warning or termination if the
employee’s conduct is severe enough to warrant such action. (Doc. # 31-1 at 62). These
warnings “roll off” the employee’s record after a given amount of time, usually one year,
and do not carry over from one type of infraction to another. (Docs. # 29-1 at 35-36 and
31-1 at 52, 92).1

1

If, for example, an employee commits a second performance error, he would receive a
first warning for performance. (Doc. # 31-1 at 92). A pre-existing first written warning for safety
would not impact the employee’s first written warning for performance. (Id.) That employee
would have two first written warnings, one for safety and one for performance, not one second
written warning. (Id.). Termination usually results when an employee receives a final written
warning in one area. (Id.). Accordingly, an employee will not usually be terminated for having a

3

In May 2010, Valdez and Jacobs issued Parks a verbal warning for failure to meet
standard productivity goals (hereinafter “MARs”) in either replenishment or picking. (Doc.
# 31-7). Valdez also noted that Parks had a record of poor quality in receiving. (Id.).
Parks attributed his errors to a medical condition that adversely affected his concentration,
quality and performance. (Id.). Human Resources Representative Julie Welch (hereinafter
“Welch”), also present during this conversation, informed Parks that his current FMLA
paperwork only authorized intermittent leave and indicated that he could perform all
essential job functions between flare-ups. (Id.). When Parks admitted that he had asked
his doctor not to label him as disabled because he feared losing his job, Welch urged Parks
to update his FMLA paperwork for his own safety and that of other employees. (Id.).
Although Welch admitted that she could not guarantee Parks a job if he updated his
paperwork, she promised that he would not be treated any differently because of a
disability. (Id.). She further explained that Parks “has to either get updated FMLA
paperwork that lists specific job duties that he is unable to perform or be held accountable
at the current production levels (MARS).” (Id.).
A few days later, Parks received a first written warning for low MARs in picking.
(Doc. # 32-18). He immediately e-mailed Human Resources Supervisor Jennie Davis and
informed her that he intended to submit updated FMLA paperwork reflecting his physical
limitations. (Id.). Parks also expressed concern that he was “being rushed out the door”
because this write up “was a week or so later after the first write up.” (Id.). He felt “backed
into a corner” because he often felt able to work, and did not want to use his intermittent

total of four written warnings for different infractions. (Id.).

4

leave on those occasions, but feared that he would get written up if his performance was
“less than 120%.” (Id.).
That same day, Parks asked Valdez for advice about his situation. (Doc. # 32-19).
Valdez felt that Parks was “fishing for an answer” and wanted her to either tell him to go
home or allow him to continue to work with excuses. (Id.). She refused to do either,
explaining to Parks that he needed to “be safe and follow his doctor’s orders” because he
would receive no accommodations until the updated paperwork was processed. (Id.).
Human Resources later received and approved the updated FMLA paperwork, which
reflected Parks’ limited ability to drive a forklift, bend, stoop and lift. (Doc. # 32-11).
In August 2010, Lovelace replaced Jacobs as a supervisor on the Birkenstock
account. (Doc. # 29-1 at 8). Shortly thereafter, Lovelace and Valdez began using a
random audit system to review employee performance. (Docs. # 29-1 at 64-72 and 31-1
at 40, 72-104). When either supervisor had some spare time, they would consult their
record of past audits and select an employee whose work had not been reviewed recently.
(Docs. # 29-1 at 65 and 31-1 at 30). Usually they would audit this employee by checking
a small percentage of the boxes he put away that day, but they occasionally planted errors
for the employee to find instead. (Id.). Sometimes they also asked material handlers to
audit an entire aisle of the warehouse. (Id.; Doc. # 29-1 at 66).
In addition to this auditing process, Lovelace and Valdez regularly reviewed
production reports, which include a list of boxes that were not logged into the computer
system that day. (Docs. # 31-1 at 30 and # 30-1 at 15). When a material handler puts a
box away at a physical location in the warehouse, that location must be recorded in the
computer system so pickers can easily retrieve that package for later shipment. (Id.). If
5

the computer system is inaccurate, reflecting either no physical location or an incorrect
physical location, then the pickers must search throughout the warehouse until they find
the product. (Id.). This time-consuming process has an adverse impact on overall
productivity. (Id.). The pickers’ efficiency is similarly impaired when the material handler
puts a box away upside down because they cannot quickly read and scan the label on the
boxes. (Id.).
Over the next few months, Lovelace and Valdez disciplined Parks several times for
such errors. (Docs. # 32-23, 32-24, and 32-29). In December 2010, Parks received his
first written performance warning because he put cartons away physically but recorded an
incorrect location in the computer system. (Doc. # 32-23). One month later, an audit
revealed that Parks had physically put away four boxes in receiving but failed to enter their
location in the computer system. (Doc. # 32-24). Lovelace and Valdez issued a second
written performance warning for this error. (Id.). In May 2011, Parks received his third
written performance warning for putting six boxes away upside down. (Doc. # 32-29). All
three warnings indicated that Parks would face further discipline or termination if he did not
improve his quality while meeting his productivity goals. (Id.).
One week later, Parks earned a final written performance warning for putting seven
boxes away upside down. (Doc. # 31-19). According to Lovelace and Valdez, Parks’
boxes were the only ones out of those audited that were upside down. (Id.). When Parks
found out about this final warning, he approached Lovelace and Valdez individually and
explained that he simply was not as fast as he used to be due to his medical condition.
(Doc. # 31-6). Both supervisors informed Parks that FMLA only covers missed time, not
performance at work, and recommended that he submit new FMLA paperwork if he felt that
6

he could not do his job. (Id.).
Parks also had a record of safety violations, equipment handling errors and
behavioral issues while working on the Birkenstock account.2 (Docs. # 29 at 11 and 31-9).
Although his supervisors made notes about each incident, it appears that Parks was only
disciplined for two infractions. (Id.). The first took place in Fall 2010, shortly after the news
broke that UPS had lost the Honeywell account to an underbidder and planned to close the
facility. (Doc. # 29-1 at 14). Parks went to the Honeywell building and badgered those
employees about the loss of the account and their potential unemployment. (Doc. # 31-13).
Parks maintained that he was trying to reach out to his former co-workers, but many of the
employees were offended by his remarks. (Doc. # 32 at 154-56). Due to the severity of
Parks’ actions, Valdez issued him a final conduct/behavior warning.

(Id.).

Valdez

disciplined Parks again in April 2011, when she caught him driving down an aisle
backwards. (Doc. # 31-17). He received his “only warning” for this safety violation. (Id.).
As Parks’ disciplinary file at UPS grew thicker, so did his medical records. In early
2010, Parks’ family doctor, Dr. Gary Melton (hereinafter “Dr. Melton”), prescribed a three
month course of physical therapy to strengthen Parks’ muscles. (Docs. # 32 at 20-22, 99103 and 32-13). However, the physical therapy did not alleviate the pain, so Dr. Melton

2

The record reflects that Parks drove a stock picker into a bay in April 2010. (Doc. # 29
at 11-13). He claimed that the machine’s guide wire malfunctioned, a complaint that had been
voiced by other equipment drivers as well, but the equipment maintenance company found
nothing wrong with the stock picker. (Id.). Two weeks later, Parks committed another
unspecified equipment violation. (Doc. # 31-10). UPS documents also show that fellow
employees complained about Parks’ handling of heavy equipment, because he refused to slow
down and almost ran over another employee. (Docs. # 31-12 and 31-10). These incidents did
not cause any personal injury or property damage. On a behavioral note, Parks was once
involved in an altercation with a security guard because he refused to comply with UPS policy
and take out his wallet before entering the building. (Doc. # 31-16).

7

referred Parks to the Mayfield Clinic, where he received cortisone shots on a regular basis.
(Id.). When this course of treatment proved ineffective, Parks returned to Dr. Melton to
discuss his remaining options. (Doc. # 32 at 123). Dr. Melton referred Parks to the CAST
Institute, which specializes in spinal injuries. (Doc. # 32 at 21). After performing a series
of MRIs and x-rays, Dr. Nael Shanti (hereinafter “Dr. Shanti”) determined that Parks was
probably suffering from a degenerative disc condition. (Id.).
When Parks had to leave work early for doctor’s appointments or other treatment,
he always informed Lovelace and Valdez. (Docs. # 32 at 45-47 and 29 at 48). Parks also
notified his supervisors when it became likely that he would need surgery. (Id.). His last
FMLA certification, submitted in January 2011, also indicated that Parks would likely
undergo surgery in the future, at which time he would require continuous leave to recover
from the procedure. (Doc. # 32-10). In the mean time, Parks inquired about temporarily
working as a floor picker, but there were no available positions. (Doc. # 32 at 45-47).
Parks also did not want to operate an older-model cherry picker because its jerky
movements aggravated his neck condition, but he continued to do so because he was one
of the few employees certified to operate heavy equipment. (Id.).
In late May, Parks had his second appointment with Dr. Shanti, who confirmed that
surgery would be necessary in the near future. (Docs. # 32 at 18-19, 23 and 32-14). Parks
went to work as usual that week, but left early on Friday due to a flare-up. (Doc. # 32 at
23). When he got home, Parks had a voicemail from Dr. Shanti, explaining that his surgery
had been scheduled for June 16, 2011. (Id. at 24). Parks alleges that he told his
supervisors about his scheduled surgery at the beginning of his shift the following week.
(Id. at 25-26). However, Lovelace and Valdez do not recall discussing Parks’ scheduled
8

surgery that morning. (Docs. # 31-1 at 24-25 and 29-1 at 46-51). They maintain that they
were only aware of his general need for surgery at some point in the future. (Id.).
That same day, Valdez discovered that Parks had put a container away in the
correct location physically, but logged it in at an incorrect location in the computer system.
(Docs. # 31-1 at 22-28 and 31-19). He had also failed to record another container’s
location in the computer system. (Id.). E-mails indicate that Valdez initially intended to
issue Parks a written warning, but she realized that he was already on a final written
warning for both performance and conduct/behavior. (Doc. # 31-19). After conferring with
Lovelace, Valdez contacted Welch to recommend that Parks’ employment be terminated.
(Id.). Welch forwarded this recommendation to her superior, Human Resources Manager
Michelle Chavez (hereinafter “Chavez”), who approved the decision to terminate.3 (Id.).
Chavez made the decision solely based on his performance history. (Doc. # 28-3). In fact,
the documents she reviewed made no mention of Parks’ FMLA certification. (Id.).
Valdez, Lovelace and Welch met with Parks towards the end of his shift and told him
that his employment had been terminated. (Docs. # 29-1 at 48-49, 31-1 at 83-85 and 30-1
at 12). All three recalled that Parks was very upset with the decision. (Id.). He repeatedly
asked them “How can you do this to me?” and requested that they continue to employ him
until he had his surgery so he could receive benefits. (Id.). They refused. (Id.). Welch
gave Parks an information packet about COBRA, but he threw it away because he felt
COBRA was too expensive. (Doc. # 32 at 27-28).

3

Valdez sent courtesy copies of this correspondence to campus director Tony Migliozzi
and facility manager Scott Reinhart, but these men played no role in the decision-making
process. (Docs. # 29-1 at 34 and 31-19).

9

Parks alleges that Lovelace behaved in a hostile manner towards FMLA certified
employees. (Doc. # 33 at 24-27). According to Parks, Lovelace often insinuated that those
employees were just trying to game the system. (Id.). Pallet builder Joe Chrisman,
formerly employed on the Honeywell account, also heard Lovelace, co-supervisor Joe
Feuser, and Human Resources personnel make derogatory comments about FMLA leave.
(Doc. # 43-4 at 3). However, Parks and Chrisman do not recall these individuals directing
negative comments at them. (Id.; Doc. # 33 at 24-27).
Parks also believes that UPS’ “progressive discipline policy” allows for disparate and
inconsistent treatment of employees. (Doc. # 42 at 24). He argues that Brenda Kinman
and Kevin Wiley received more favorable treatment than he did, even though they were all
similarly situated. However, these employees were disciplined for different matters. (Doc.
# 31-1 at 122). Kinman and Wiley were put on Performance Improvement Plans
(hereinafter “PIPs”) to increase their productivity, which was only an occasional problem
for Parks. (Id. at 100). UPS typically uses additional training, rather than PIPs, to address
quality concerns. (Id. at 96). Since Parks consistently had a problem with quality rather
than performance, he was offered additional training each time he received a warning. (Id.
at 97). However, he failed to take advantage of these improvement opportunities. (Id.).
According to Parks, Cathy Harms also received more favorable treatment because
she was not discharged despite the fact that she committed seventeen quality-related
errors in a month. (Doc. # 42 at 24). However, Harms received one warning for eight
errors committed on the same day and another warning for a set of nine errors. (Doc. # 311 at 122).

Each of Parks’ warnings corresponded to multiple errors committed

simultaneously, which is consistent with Harms’ treatment. (Docs. # 32-21, 32-24 and 3210

29). Harms also accepted retraining on each of these occasions. (Doc. # 31-1 at 122).
Finally, Parks maintains that a disproportionate number of errors were attributed to
him because the UPS system is flawed. (Doc. # 32 at 28). While the computer system
shows which employee scanned each box in, Parks points out that the system has no way
of identifying another employee’s subsequent errors. (Id.). For example, an employee
could put a box in the correct location, scan it properly, and drive away. (Id.). However,
another employee could later move the box to an incorrect location.

(Id.).

When

questioned about certain errors that he made on the Honeywell account, Parks offered a
similar explanation. (Id. at 192). He excused himself from other errors by noting that
several people got “hammered” for the same thing. (Id. at 193).
Without his UPS benefits, Parks was unable to afford the spinal surgery. (Id. at 73).
He is still living with the degenerative herniated disc condition, which imposes significant
limitations on his daily activities. (Id.). However, he hopes to receive benefits from his
current employer, an AT&T subcontractor, in the near future. (Doc. # 33 at 54-55, 56-57).
III.

Analysis
1.

Summary Judgment Standard

Summary judgment is appropriate when 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). If there is a dispute over facts that might affect the outcome of the case under
governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading
the court that there are no disputed material facts and that he is entitled to judgment as a
matter of law. Id. Once a party files a properly supported motion for summary judgment
11

by either affirmatively negating an essential element of the non-moving party’s claim or
establishing an affirmative defense, “the adverse party must set forth specific facts showing
that there is a genuine issue for trial.” Id. at 250.
2.

Plaintiff’s FMLA Claim

Under the Family and Medical Leave Act, an employee who suffers from “a serious
health condition that makes [him or her] unable to perform the function of the position” may
take up to twelve weeks of leave per year. 29 U.S.C. § 2612(a)(1)(D). The Act prohibits
employers from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt
to exercise, any right provided by [the Act].” 29 U.S.C. § 2615(a)(1). It is also unlawful for
employers to “discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by [the Act].” 29 U.S.C. § 2615(a)(2). Employers
who violate these provisions of the Act may be held liable to the employee for damages and
other equitable relief. 29 U.S.C. § 2617(a)(1).
A.

Analytic Framework for FMLA Claims

The Sixth Circuit recognizes two distinct theories of recovery under the Family and
Medical Leave Act. Arban v. West Publishing Corp., 345 F.3d 390, 401 (6th Cir. 2003).
The interference theory, arising out of § 2615(a)(1), allows recovery for any interference
with the FMLA-created right to medical leave, regardless of the employer’s intent. Id. By
contrast, the key inquiry under the retaliation theory, derived from § 2615(a)(2), is “whether
the employer took the adverse action because of a prohibited reason or for a legitimate
nondiscriminatory reason.” Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274,
282 (6th Cir. 2012)(quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006)).
Although a “claim for retaliatory discharge is cognizable under either theory, the requisite
12

proofs differ.” Id.
Despite the distinction between these two theories of recovery, a plaintiff’s failure
to specify which theory he is advancing is not necessarily fatal to his claim. See Morris v.
Family Dollar Stores of Ohio, 320 Fed. App. 330, 335-36 (6th Cir. 2009)(reversing the
district court’s finding that the plaintiff waived a claim based on the interference theory
because he did not specify which theory he sought to use); Wysong v. Dow Chemical Co.,
503 F.3d 441, 446 (6th Cir. 2007)(finding it appropriate to analyze the plaintiff’s claim under
both theories of recovery because the complaint alleged broad FMLA violations that could
encompass one or both theories).
However, courts may also consolidate a plaintiff’s FMLA claim if it sounds in one
theory of recovery only. See Seeger, 681 F.3d at 282. In Seeger, the plaintiff predicated
his retaliatory discharge claim on both theories, but this Court determined that the plaintiff’s
claim essentially sounded in retaliation theory and analyzed his claim accordingly. Id. This
Court ultimately granted the defendant’s motion for summary judgment and the plaintiff
appealed, arguing that this Court improperly consolidated his FMLA claims. Id. The Sixth
Circuit affirmed this Court’s decision, reasoning that the plaintiff’s claim was fundamentally
one for retaliation, not interference, because his employer “did not shortchange his leave
time, deny reinstatement, or otherwise interfere with his substantive FMLA rights.” Id. at
283.
In this case, Defendant urges the Court to adopt the same approach it used in
Seeger and analyze Plaintiff’s FMLA claim under the retaliation theory only. Defendant
indicates that consolidation is appropriate because, although Plaintiff’s FMLA claim invokes
both theories of recovery, Plaintiff does not specify how Defendant’s actions constituted
13

interference. Instead, Plaintiff simply alleges that Defendant terminated his employment
after he notified his supervisors of his intent to take FMLA leave. Based on its reading of
the Complaint, Defendant concludes that Plaintiff’s claim sounds in the retaliation theory
only. Although not stated in such explicit terms, Defendant also suggests that Plaintiff
received all of the FMLA leave that he was entitled to, and therefore cannot proceed under
the interference theory, because he testified in his deposition that Defendant certified all
of his prior requests for FMLA leave.
Instead of opposing Defendant’s request, Plaintiff’s Response focuses solely on the
retaliation theory. Despite this lack of argument, the Court is not inclined to pare down
Plaintiff’s FMLA claim because the facts of this case are not sufficiently analogous to those
presented in Seeger. While it is clear that Defendant granted Plaintiff’s leave requests in
the past, there is a factual dispute as to whether Plaintiff informed his supervisors of his
scheduled surgery on the morning of his termination. Plaintiff insists that he informed his
supervisors, Lovelace and Valdez, that his surgery had been scheduled on May 31, 2011.
Because he allegedly notified them at the beginning of his shift, Plaintiff surmises that his
supervisors, Lovelace and Valdez, began corresponding about his termination afterwards.
Although both supervisors were aware that Plaintiff would likely undergo surgery at some
point in the future, at which time he would require continuous leave to recover from the
procedure, neither recalled having any discussion with Plaintiff about the scheduled surgery
that morning.
As discussed above, a claim for wrongful discharge is cognizable under either theory
of recovery. Although courts will not treat a plaintiff’s allegations of general § 2615
violations as a waiver of one theory, neither will courts allow plaintiffs to advance both
14

theories of recovery without supporting facts. While Plaintiff’s complaint is quite general
in substance, it provides enough information for Plaintiff to proceed under both theories.
Specifically, the factual dispute as to whether Plaintiff notified his supervisors of his intent
to take leave for his scheduled surgery suggests possible interference with FMLA’s
substantive rights. Accordingly, the Court will reject Defendant’s argument and analyze
Plaintiff’s FMLA claim under both theories of recovery.
B.

Interference Theory

A claim for interference with the FMLA’s substantive rights requires proof of the
following five elements: 1.) Plaintiff was an eligible employee; 2.) Defendant is a covered
employer; 3.) Plaintiff was entitled to leave under the FMLA; 4.) Plaintiff gave Defendant
notice of his intent to take leave; and 5.) Defendant denied Plaintiff his FMLA benefits or
interfered with FMLA rights to which he was entitled. Hoge v. Honda of America Mfg, Inc.,
384 F.3d 238, 244 (6th Cir. 2004). If the defendant claims that the plaintiff would have
been discharged regardless of his use of FMLA leave, then the plaintiff must also, “in the
course of establishing the right [protected by § 2615(a)(1)], convince the trier of fact that
the evidence submitted by employer is insufficient and that the employee would not have
been discharged if he had not taken FMLA leave.” Arban v. West Publishing Corp., 345
F.3d 390, 401 (6th Cir. 2003).
“[T]he critical test for substantively sufficient notice is whether the information that
the employee conveyed to the employer was reasonably adequate to apprise the employer
of the employee’s request to take leave for a serious health condition that rendered him
unable to perform his job.” Brenneman v. MedCentral Health System, 366 F.3d 412, 421
(6th Cir. 2004). Sixth Circuit case law suggests that an employee may satisfy this test by
15

verbally notifying his supervisor of his need for leave. See Treadaway v. Big Red
Powersports, LLC, 611 F. Supp. 2d 768, 780 (E.D.T.N. March 12, 2009)(finding that the
reasonable notice prong was satisfied because the plaintiff told her supervisor that she
would need leave until her employer took adequate precautions to address her medical
concerns and attempted to give him supporting documentation); Curry v. Goodwill
Industries of Kentucky, Inc., Civ. A. No. 1:11CV-00093-JHM, 2013 WL 1411132 at *6
(W.D.K.Y. Apr. 8, 2013)(concluding that plaintiff gave reasonable notice by informing her
supervisor of her need for leave prior to filing a formal request for leave a month in advance
of her scheduled surgery). The employee need not mention the FMLA as the source of his
right to request such leave. Brenneman, 366 F.3d at 421.
If it is not clear from the record whether the employee gave such notice, then there
exists a factual dispute sufficient to preclude summary judgment on the interference claim.
In Hoge, Plaintiff sued her employer for interference with her substantive FMLA rights. See
384 F.3d at 238. Specifically, she complained that her employer failed to immediately
restore her to the position she had occupied prior to surgery. Id. at 244. Although it was
clear that her employer approved her request for leave to recuperate from abdominal
surgery, “the record d[id] not establish her new return date and the parties dispute[d]
whether Honda had reason to expect her return on the morning of June 27.” Id. at 248.
The Court denied the employer’s summary judgment motion, reasoning that these
discrepancies in the record created a genuine issue of material fact as to whether the
plaintiff provided the defendant with reasonable notice that the plaintiff would be returning
from leave sooner than expected. Id.

16

As in Hoge, the record in this case does not clearly establish whether Plaintiff gave
reasonable notice of his intent to take leave in June. Lovelace and Valdez admit that they
were aware of Plaintiff’s need for surgery in the future, as evidenced by numerous e-mails
referencing his condition. However, neither supervisor remembers discussing Plaintiff’s
scheduled surgery with him on the morning of his termination. Plaintiff recalls just the
opposite. He alleges that he found out about his scheduled surgery after leaving work on
Friday and notified his supervisors at the beginning of his shift the following week.
However, there is no record of this alleged dialogue, nor are there any other documents
indicating that Plaintiff notified his supervisors. For example, Plaintiff did not submit any
formal written notice of his intent to take leave in June. E-mails exchanged between
Lovelace and Valdez that day make no mention of his scheduled surgery, focusing solely
on his sub-par work performance. Because there is no evidence of this conversation, apart
from the parties’ conflicting deposition testimony, there is a genuine issue of material fact
as to whether Plaintiff notified his supervisors of his scheduled surgery on May 31, 2011.
Accordingly, the Court finds that summary judgment on Plaintiff’s FMLA interference claim
is inappropriate.
C.

Retaliation Theory

A claim for FMLA retaliation requires proof of the following five elements: 1.) Plaintiff
was engaged in a statutorily protected activity; 2.) Defendant knew that he was exercising
his FMLA rights; 3.) Plaintiff suffered an adverse employment action; and 4.) A causal
connection existed between the protected FMLA activity and the adverse employment
action. Seeger, 681 F.3d at 283. To establish a prima facie case of retaliation, plaintiff
must put forth some credible evidence that enables the court to deduce that there is a
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causal connection between the retaliatory action and the protected activity. Id. If sufficient
evidence is presented, a presumption of discrimination arises. Id. Courts have held that
close temporal proximity between FMLA leave and termination may be sufficient to meet
the low threshold of proof necessary to establish a prima facie case of retaliatory discharge.
See id. at 283 (finding that the timing did meet the threshold of proof because “Seeger’s
termination followed on the heels of CBT’s investigation, which commenced during
Seeger’s FMLA leave”).
If the plaintiff succeeds in creating a presumption of discrimination, the McDonnell
Douglas burden shifting scheme becomes applicable. Id. Accordingly, the defendant has
the opportunity to rebut that presumption by articulating a legitimate, non-discriminatory
reason for discharging the plaintiff. Id. Courts have held that “[p]oor performance is a
legitimate, non-discriminatory reason for terminating a person’s employment” and is
sufficient to satisfy the defendant’s initial burden under the McDonnell-Douglas framework.
Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 546 (6th Cir. 2008).
Once the defendant has rebutted the presumption of discrimination, the burden
shifts back to the plaintiff, who must produce adequate evidence demonstrating that the
defendant’s proffered reason was a pretext for discrimination. Seeger, 681 F.3d at 285.
The proffered reason cannot be a pretext for discrimination unless it is shown that the
reason was false and that discrimination was the real reason. Id. A plaintiff may establish
pretext by showing that the employer’s proffered reasons have no basis in fact, did not
actually motivate the action or were insufficient to warrant the action. Id. While temporal
proximity was sufficient to establish a prima facie case of discrimination, it cannot be the
sole basis for finding pretext. Id. Timing can still be a “strong indicator of discrimination,
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but it must be accompanied by some other, independent evidence.” Id.
In this case, Plaintiff attempts to establish pretext using the “cat’s paw” theory of
liability, which holds an employer liable “when a biased intermediate employee’s actions
are ‘a causal factor in the ultimate employment action’ such that the animus of the
intermediate employee can be attributed to the employer.” Staub v. Proctor Hospital, 131
S.Ct. 1186, 1191 (2011). “Cat’s paw” liability will not attach unless the employee’s
discriminatory animus is “a motivating factor in the employer’s action.” Grant v. Walgreen
Co., No. 10-11392, 2011 WL 2079923 at *8 (E.D.M.I. May 25, 2011). To establish that
discriminatory animus was a motivating factor, the plaintiff must do more than simply allege
that the intermediate employee made discriminatory comments or favored other
employees. Id. at *10 (finding that supervisor’s discriminatory comments about age “do not
raise an issue that [supervisor] targeted Plaintiff and used Plaintiff’s age as a reason to
terminate her”). A motivating factor exists when the employee who made the adverse
employment decision acted out of personal hostility to the employee’s protected status.
See Staub, 131 S.Ct. at 1196 (finding that Staub’s supervisor manifested a discriminatory
animus directly related to his participation in the Army Reserves by scheduling him for
additional shifts without notice “so that he would pay back the department for everyone else
having to bend over backwards to cover his schedule for the Reserves” and asking a coworker to help her get rid of him because his “military duty has been a strain on the
department”).
Defendant argues that summary judgment is appropriate on Plaintiff’s FMLA
retaliation claim because he cannot establish a causal connection between his attempt to
take leave and his termination. Specifically, Defendant argues that timing alone is not
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enough to establish such a causal connection. However, this Court, and others within the
Sixth Circuit, have previously held that timing alone is enough to satisfy the low threshold
of proof required to state a prima facie case. In this case, Plaintiff testified that he left work
early on Friday, May 27, 2011, due to a flare-up. When he returned to work the next week,
he stated that he immediately notified his supervisors of his intent to take FMLA leave in
June, explaining that his surgery had finally been scheduled. His employment was
terminated a few hours later. The Court finds that the very short period of time between
Plaintiff’s request for leave and his termination is sufficient to establish a prima facie case
of FMLA retaliation. Therefore, a presumption of discrimination arises and the burden
shifts to Defendant rebut this presumption.
Defendant maintains that Plaintiff was discharged for poor performance, which the
law recognizes as a legitimate, non-discriminatory reason for termination. To support this
assertion, Defendant has produced thorough documentation of Plaintiff’s performance
issues at UPS. Plaintiff received multiple written warnings for his sub-par performance, all
of which indicated that he could face termination if his work did not improve. Despite this
admonition, Plaintiff declined additional training opportunities. Although Plaintiff’s errors
became more frequent as his neck condition worsened, Lovelace, Valdez and Welch
repeatedly told him that, while his FMLA paperwork authorized time off to cope with his
condition, it did not excuse poor performance. As long as Plaintiff chose to work, he would
have to meet the standards expected of all employees. If Plaintiff felt that he could not do
so, then he needed to update his paperwork again. Defendant has not only demonstrated
that Plaintiff had consistent performance issues, it has shown that Plaintiff failed to heed
warnings or take advantage of opportunities for improvement, knowing full well that
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termination could result from continued errors. Therefore, the Court finds that Defendant
has articulated a legitimate, non-discriminatory reason for terminating Plaintiff, thus shifting
the burden back to Plaintiff.
Plaintiff argues that Defendant’s reason is pretextual by once again emphasizing the
timing of his termination. However, the law is clear that timing alone cannot establish
pretext, so Plaintiff attempts to show that Defendant’s stated reason did not actually
motivate its termination decision. Plaintiff alleges that Lovelace manifested a discriminatory
animus against him by making derogatory comments about employee use of FMLA.
Ultimately, Plaintiff argues that this discriminatory animus motivated the termination
decision, and therefore, this animus should be attributed to Defendant for liability purposes.
However, Plaintiff only produces evidence that Lovelace was not fond of FMLA policies and
sometimes spoke negatively about them. There is no indication that such comments were
ever specifically directed at him or any other employee. In short, this case cannot be
properly compared to Staub because there is no evidence in the record that Lovelace
targeted Plaintiff for his use of FMLA leave.
Plaintiff also attempts to establish pretext with a weak allegation that he was treated
differently than other, similarly situated employees. However, a closer examination of the
examples cited by Plaintiff actually suggests that the opposite is true. Plaintiff takes issue
with the fact that other employees were put on Performance Improvement Plans, which
UPS uses to remedy productivity problems. Since Plaintiff had consistent quality issues,
he was offered additional training, but declined it each time. Plaintiff also complains that
an employee named Cathy Harms was not terminated for committing seventeen errors in
one month, which is more than he committed. However, Harms committed nine quality
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errors on one occasion and eight on another. She received one warning for each set of
errors and accepted retraining each time. Plaintiff overlooks the fact that he was given the
exact same treatment. He was issued one warning for each set of errors and offered
retraining. Therefore, there is no evidence that Plaintiff was treated differently than other
similarly situated employees. Having concluded that Plaintiff has not met his burden of
demonstrating that Defendant’s reason for termination was pretextual, the Court finds that
summary judgment on Plaintiff’s FMLA retaliation claim is appropriate.
3.

Plaintiff’s ADA/KCRA Claim

The Americans with Disabilities Act prohibits employers from “discriminat[ing]
against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of employment.”4

42 U.S.C. §

12112. An employer’s failure to make “reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability” constitutes
discrimination as defined in the statute. Id.
To state a claim of disability discrimination for failure to accommodate, a plaintiff
must demonstrate that following elements: 1.) Plaintiff is disabled within the meaning of the
Act; 2.) Plaintiff is otherwise qualified for the position with or without reasonable
accommodation; 3.) Defendant knew or had reason to know about Plaintiff’s disability; 4.)

4

The Kentucky Civil Rights Act provides the same protections as the Americans with
Disabilities Act, so courts use the federal framework to analyze claims under the state statute.
Compare 42 U.S.C. § 12112 with Ky. Rev. Stat. Ann. § 344.010, et seq.; see Bryson v. Regis
Corp., 498 F.3d 561, 754 (6th Cir. 2007); Hallahan v. Courier-Journal, 138 S.W.3d 699, 706-07
(Ky. Ct. App. 2004).

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Plaintiff requested an accommodation; and 5.) Defendant failed to provide the necessary
accommodation.5 See Kleiber v. Honda of America Mfg., Inc., 485 F.3d 862, 869 (6th Cir.
2007).

To satisfy the fourth element, the plaintiff must have initially proposed an

accommodation that is objectively reasonable. Brown v. Humana Ins. Co. , 942 F. Supp.
2d 723, 732 (W.D.K.Y. Apr. 30, 2013). The Sixth Circuit has recognized that a medical
leave of absence can constitute a reasonable accommodation under appropriate
circumstances. See Cehr v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775 (6th
Cir. 1998)(holding that there was a genuine issue of material fact as to whether an eightweek leave of absence, followed by a request for more leave, was a reasonable
accommodation).

But see Walsh v. United Parcel Serv., 201 F.3d 718, (6th Cir.

2000)(holding that a year of paid disability leave, followed by a request for six months of
unpaid leave, was not reasonable under the circumstances).
The briefing indicates that there is considerable confusion as to the substance of
Plaintiff’s ADA/KCRA claim. Defendant’s Motion for Summary Judgment suggests that
Plaintiff is claiming disability discrimination based on wrongful discharge as well as failure
to accommodate. However, a close reading of the Complaint reveals that Plaintiff’s claim
is based solely on alleged failure to accommodate.6 This distinction is critical because
claims based on failure to accommodate necessarily require direct evidence, while claims
based on wrongful discharge often involve indirect evidence, thus triggering the McConnell

5

For purposes of this Motion, Defendant does not dispute that Plaintiff is disabled.

6

The Complaint states that “Defendant discriminated against Plaintiff on the basis of his
disability by failing to provide reasonable accommodation to his disability, including, but not
limited to, the refusal to allow him medical leave to seek medical care for his medical condition.”
(Doc. # 1-1 at 5 (emphasis added)).

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Douglas burden shifting scheme. See Kleiber v. Honda of America Mfg., Inc., 485 F.3d
862, 869 (6th Cir. 2007). Proceeding under the assumption that Plaintiff is claiming
discrimination based on wrongful discharge, Defendant argues that Plaintiff’s claim must
fail because he cannot prove that he was terminated solely because of his disability.
However, the Court will disregard this portion of Defendant’s argument because it is
irrelevant to Plaintiff’s failure to accommodate claim.
In briefing the failure to accommodate issue, Defendant improperly characterizes the
proposed accommodation as a request “to delay Plaintiff’s termination until after his
surgery.” (Doc. # 28 at 14). Defendant then states that it had no duty to continue to
employ Plaintiff until after his surgery, nor did it have a duty to accommodate Plaintiff after
his termination. (Id.). Plaintiff responds that the requested accommodation was a leave
of absence for surgery, not delayed termination. (Doc. # 42 at 28). The Court will take this
clarification into account. It should also be noted that, while the Complaint alludes to other
instances of Defendant’s failure to accommodate, Plaintiff only cites Defendant’s refusal
to grant Plaintiff’s request for medical leave. Accordingly, the Court will confine its analysis
to this one specific allegation of failure to accommodate.
Plaintiff maintains that he requested an accommodation, in the form of medical leave
to undergo surgery, when he allegedly spoke to Lovelace and Valdez on May 31, 2011.
It is therefore necessary to revisit the factual dispute that lies at the heart of Plaintiff’s FMLA
interference claim: whether Plaintiff spoke with his supervisors about medical leave on the
morning of his termination.

Because neither the record nor the parties’ deposition

testimony clearly establishes that this conversation took place, there is a genuine dispute
of material fact as to whether Plaintiff requested an accommodation. Accordingly, the
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Court finds that summary judgment on Plaintiff’s ADA/KCRA claim is inappropriate.
4.

Plaintiff’s Public Policy Claim

Kentucky is an employment at will state. Firestone Textile Co. Div. v. Meadows, 666
S.W.2d 730, 731 (Ky. 1984). Although the Kentucky Supreme Court has created an
exception for wrongful terminations that are in violation of public policy, this exception is
only applicable when the statute creating the public policy exception does not provide a
structure for pursuing a claim. Grzyb v. Evans, 700 S.W.2d 399, 402 (Ky. 1985). If the
statute that establishes the public policy exception also creates a statutory cause of action
for, and structures the remedy for, violations of that public policy, then the statute preempts
the common law wrongful discharge claim. Lines v. Elf Atochem North America, Inc., 813
F. Supp. 550, 552 (W.D.K.Y. Feb. 4, 1993); Hill v. Kentucky Lottery Corp., 327 S.W.3d 412,
421 (Ky. 2010).
Applying these rules, several courts have held that wrongful discharge claims based
on the Family Medical Leave Act and the Kentucky Civil Rights Act were pre-empted. See
Grzyb, 700 S.W.2d at 402 (holding that the Kentucky Civil Rights Act “not only creates the
public policy but preempts the field of its application”); Barber v. Humana, Civ. A. 3:10-CV25-H, 2010 WL 2106659 at *3 (W.D.K.Y. May 24, 2010)(holding that Plaintiff’s cause of
action for wrongful discharge in violation of public policy was pre-empted and subsumed
by the Kentucky Civil Rights Act claims); Franklin v. Greenheck Fan Corp., Civ. A. 04-13JMH, 2005 WL 1657047 at *6 (E.D.K.Y. July 8, 2005)(concluding that Plaintiff’s common
law wrongful discharge claim could not withstand summary judgment because the Plaintiff
sought to base that claim on Family and Medical Leave Act violations); Broadway v. Sypris
Technologies, Inc., Civ. A. 3:09-CV-976, 2011 WL 847064 at * 4 (W.D.K.Y. March 9,
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2011)(deciding that wrongful discharge claim should not go forward because “the only welldefined public policy mentioned anywhere in the pleadings are the Kentucky workers
compensation statutes, the Family and Medical Leave Act, and the Kentucky Civil Rights
Act, all of which provide their own causes of action and remedies”).
Plaintiff claims that Defendant wrongfully discharged him in violation of public policy.
Although the pleadings are not particularly clear on this point, Plaintiff’s claim seems to be
based on public policies set out in the Family and Medical Leave Act. However, it is wellsettled that this Act preempts common law wrongful discharge claims because it provides
its own cause of action and remedy for the same public policy violations. Therefore,
Defendant is entitled summary judgment on this claim.
IV.

Conclusion

For the reasons stated above, IT IS ORDERED as follows:
1.

Defendant’s Motion for Summary Judgment (Doc. # 28) is GRANTED with

regard to Plaintiff’s claims for FMLA retaliation and common law wrongful discharge, and
DENIED with respect to Plaintiff’s claims for FMLA interference and ADA/KCRA failure to
accommodate;
2.

This matter is set for a Status Conference on Thursday, February 27, 2014

at 11:30 a.m. in Covington. The parties shall be prepared to set this matter for trial during
the conference.
This 4th day of February, 2014.

G:\DATA\Opinions\Covington\2011\11-404 MOO granting in part and denying in part MSJ.wpd

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