Alcegaire v. JBS USA, LLC

Filing 53

MEMORANDUM OPINION AND ORDER Signed by Judge David J. Hale on 6/19/2018 denying 48 Alcegaire's Motion to Alter or Amend the Judgment. cc: Counsel(JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
ROZAIRE ALCEGAIRE,

Plaintiff,

v.

Civil Action No. 3:15-cv-266-DJH-CHL

JBS USA, LLC,

Defendant.
* * * * *
MEMORANDUM OPINION AND ORDER

Plaintiff Rozaire Alcegaire has moved to alter or amend the Judgment in this case.
(Docket No. 48)

Because the Court concludes that it did not clearly err in its previous

Memorandum Opinion and Order (D.N. 46), and finds that modification of the Judgment is not
necessary to prevent manifest injustice, Alcegaire’s motion will be denied.
I.

BACKGROUND
Alcegaire alleges that JBS interfered with her rights under the Family and Medical Leave

Act (FMLA) and discharged her in violation of Ky. Rev. Stat. § 342.197 after she filed a
workers’ compensation claim. (D.N. 1) JBS moved for summary judgment (D.N. 34), arguing
that the FMLA interference claim failed as a matter of law because Alcegaire did not suffer from
a serious health condition and failed to comply with the company’s attendance requirements.
(D.N. 36) JBS further argued that Alcegaire’s wrongful-discharge claim failed as a matter of law
because there was no causal connection between her discharge and her workers’ compensation
claim. (Id.)
In a Memorandum Opinion and Order entered September 27, 2017, the Court granted
JBS’s motion for summary judgment. (D.N. 46) The Court concluded that Alcegaire had not
established that she was entitled to leave under the FMLA or that she gave her employer proper

1

notice of her intention to take FMLA leave. (Id., PageID # 307) The Court further concluded
that Alcegaire had not shown a causal connection between her workers’ compensation claim and
her termination and that JBS had shown a legitimate reason for her termination. (Id., PageID #
310) Alcegaire now seeks to alter or amend the Court’s Judgment pursuant to Federal Rule of
Civil Procedure 59(e). (D.N. 48)
II.

STANDARD
“Rule 59(e) allows for reconsideration; it does not permit parties to effectively ‘re-argue

a case.’” Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (quoting Sault Ste. Marie
Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)). A motion under Rule
59(e) may be granted for one of four reasons: “(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest
injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing GenCorp, Inc. v.
Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). “To constitute ‘newly discovered
evidence,’ the evidence must have been previously unavailable.” GenCorp, Inc., 178 F.3d at
834.
III.

DISCUSSION
Alcegaire urges the Court to alter or amend its earlier Judgment in order to correct

purported clear errors of fact and law and to prevent manifest injustice.1 (D.N. 48-1, PageID #

1

The Sixth Circuit’s “cases do not offer clear guidance as to what qualifies as ‘manifest
injustice,’ but the plain meaning of those words is instructive.” Bradley J. Delp Revocable Tr. v.
MSJMR 2008 Irrevocable Tr., 665 F. App’x 514, 530 (6th Cir. 2016) (quoting Volunteer Energy
Servs., Inc. v. Option Energy, LLC, 579 F. App’x 319, 330-31 (6th Cir. 2014)). “Manifest
injustice is defined as ‘[a]n error in the trial court that is direct, obvious, and observable, such as
a defendant’s guilty plea that is involuntary or that is based on a plea agreement that the
prosecution rescinds.’” Id. (quoting Black’s Law Dictionary (8th ed. 2004)). “[A]s the examples
suggest, more than a clear error is required; injustice must also result.” Volunteer Energy Servs.,
Inc., 579 F. App’x at 331.
2

315) First, Alcegaire argues that the Court erred in failing to address the fact that she suffered
from a chronic health condition that entitled her to FMLA leave. (Id., PageID # 316) Second,
Alcegaire asserts that the Court erred in finding that her employment was terminated for failing
to call in her absences. (Id.) Third, Alcegaire argues that the Court erred in relying on Bush v.
Compass Group USA, 683 F. App’x 440 (6th Cir. 2017), for the proposition that temporal
proximity alone is insufficient to show causation for purposes of a wrongful-discharge claim
under Ky. Rev. Stat. § 342.197.

(D.N. 48-1, PageID # 316)

Finally, Alcegaire seeks to

supplement the record. (Id.) The Court will address each alleged ground for relief in turn.
A.

Alcegaire’s Health Condition

The Court rejected Alcegaire’s FMLA interference claim in part because it found that she
did not have a serious health condition entitling her to FMLA leave. (D.N. 46, PageID # 305) In
particular, the Court found that Alcegaire did not qualify as incapacitated under 29 C.F.R.
§§ 825.115(a) and 825.113(b). (D.N. 46, PageID # 304-05) Alcegaire now argues that the Court
erred in failing to consider whether her condition satisfied the definition of “chronic serious
health condition” under a different section of the regulation, 29 C.F.R. § 825.115(c). (D.N. 48-1,
PageID # 317)
At the outset, Alcegaire’s argument fails because it was not raised before.2 See Roger
Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 395 (6th Cir. 2017) (“[U]nder Rule
59(e), parties cannot use a motion for reconsideration to raise new legal arguments that could
have been raised before a judgment was issued.”).
2

Nowhere in her response to JBS’s motion for summary judgment did Alcegaire allege that her
health condition was “chronic.” (See D.N. 42) Nor did Alcegaire cite in her response the
regulation, § 825.115(c), upon which she now relies. (See id.) Instead, Alcegaire argued that she
was unable to perform her regular job duties under 29 C.F.R. § 825.113 (D.N. 42, PageID #
223), but the Court rejected that argument. (D.N. 46, PageID # 304-05) See Howard, 533 F.3d
at 475 (explaining that Rule 59(e) does not permit parties to re-argue a case).
3

In any event, the Court is unable to conclude that Alcegaire suffered from a chronic
serious health condition under § 825.115(c). Alcegaire asserts that she “saw a physician for her
back condition on at least three occasions” and that “she was also diagnosed as suffering from
arthritis, and advised that she was to be seen in recheck as needed.” (D.N. 48-1, PageID # 318)
But “[i]n order to have had a serious health condition, whether chronic or permanent, [Alcegaire]
must have been unable to work, attend school, or perform other regular daily activities during the
period of [her] leave.” Perry v. Jaguar of Troy, 353 F.3d 510, 515 (6th Cir. 2003); see also
Whitworth v. Consol. Biscuit Co., No. 6:06-112-DCR, 2007 WL 1075774, at *5 (E.D. Ky. Apr.
6, 2007) (“If a plaintiff cannot show that he or she had a condition that incapacitated him or her,
the Court’s inquiry is over and summary judgment is appropriate.” (internal quotation and
citation omitted)).
Here, the evidence shows that doctors twice examined Alcegaire and released her to
work, albeit on a modified, sit-down basis.3 (D.N. 35-2, PageID # 126; D.N. 35-3, PageID #
174-75, 177-78) And while Alcegaire asserted earlier that she “could not perform a regular daily
activity, standing, for significant periods,” she cited no evidence to support her assertion. (See
D.N. 42, PageID # 223) Cf. Perry, 353 F.3d at 515-16 (“[Plaintiff] argues that [his son] was
incapacitated because he could not perform regular daily activities . . . . [Plaintiff], however,
points to no evidence to support this conclusory claim . . . .”). The Court therefore declines to
alter its earlier finding that Alcegaire was not incapacitated. (See D.N. 46, PageID # 305)
3

Importantly, Alcegaire’s own assertion that “she was in significant pain from her injury and
could not return to work” (D.N. 48-1, PageID # 319) is insufficient to show inability to work.
See Linebarger v. Honda of Am. Mfg., 870 F. Supp. 2d 513, 524 (S.D. Ohio 2012)
(“Incapacitation for the purposes of the FMLA ‘does not mean that, in the employee’s own
judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the
employee to have to work. Rather, it means that a “health care provider” has determined that, in
his or her professional medical judgment, the employee cannot work (or could not have worked)
because of the illness.’” (citation omitted)).
4

Alcegaire relies heavily upon West v. Pella Corp., where the Court found that the
plaintiff suffered from a chronic serious health condition and denied the defendant summary
judgment on an FMLA interference claim. No. 5:16-CV-154-TBR, 2017 WL 4765653, at *4-6,
*9 (W.D. Ky. Oct. 20, 2017).

But in West, it appears that the plaintiff’s incapacity was

undisputed, as the Court did not discuss it.4 See id. Instead, the defendant in West argued that
the plaintiff was not suffering from a serious health condition because the plaintiff did not
provide medical documentation for some of his absences. Id. at *5. The court in West found that
argument unpersuasive, as an absence due to a chronic serious health condition qualifies for
FMLA leave even if the employee does not receive medical treatment during the absence. Id.
(citing Perry, 353 F.3d at 515) But the Court here has already concluded that Alcegaire was not
incapacitated; thus, it need not reach the issue of treatment. See Whitworth, 2007 WL 1075774,
at *5 (“The determination of whether a plaintiff was incapacitated within the meaning of the
FMLA is a threshold consideration for her claims under the FMLA.”).
In short, the Court finds no clear error in its earlier determination that Alcegaire did not
suffer from a serious health condition entitling her to leave under the FMLA. 5 Rule 59(e) relief
on this basis is therefore unwarranted.

4

While the court in West defined “incapacity” as the “inability to work, attend school[,] or
perform other regular daily activities,” it did not explicitly discuss the plaintiff’s ability to work
or perform other activities. See 2017 WL 4765653, at *4-6 (quoting 29 C.F.R. § 825.113(b)).
The absence of such discussion from the case makes sense in light of the undisputed evidence
showing that the plaintiff’s doctor twice advised that the plaintiff could not return to work for a
period of time. See id. at *5. In contrast, Alcegaire’s doctors advised that she could return to
work. (See D.N. 35-3, PageID # 177-78)
5
Alcegaire also suggests for the first time in her reply brief that “severe arthritis is a per se
chronic serious health condition.” (D.N. 52, PageID # 343-44) This argument was not raised
earlier, and it is not supported by the authority Alcegaire cites. (See id., PageID # 344) See
Brannon v. OshKosh B’Gosh, Inc., 897 F. Supp. 1028, 1035 (M.D. Tenn. 1995) (noting only that
severe arthritis is a possible serious health condition).
5

B.

Reason for Alcegaire’s Termination

In its earlier Memorandum Opinion and Order, the Court found that Alcegaire repeatedly
failed to call in her absences in violation of JBS’s attendance policy. (See D.N. 46, PageID #
306-07) Thus, Alcegaire’s FMLA interference claim failed as a matter of law. (Id.) See Cundiff
v. Lenawee Stamping Corp., 597 F. App’x 299, 300-01 (6th Cir. 2015); Srouder v. Dana Light
Axle Mfg., 725 F.3d 608, 615 (6th Cir. 2013). Alcegaire now argues that “the sole reason that
JBS terminated her employment was her failure to submit her medical documentation.” (D.N.
48-1, PageID # 319) In support of this argument, Alcegaire points to her termination notice,
which stated that she was terminated “for failure to comply with the Absentee Control Policy
when [she] failed to provide supporting documentation for [her] absences.” (Id.; D.N. 42-6,
PageID # 280)
The Sixth Circuit has explained that an employee is not entitled to FMLA leave if she
does not comply with her employer’s usual notice and procedural requirements:
Under the FMLA, an employee who has a serious health condition . . . has the
right to take up to 12 weeks of leave per year. But the FMLA does not grant that
right unconditionally: it requires, among other things, that the employee give his
employer “notice of his intention to take leave.” And that notice must take a
certain form, namely, the employee must “comply with [the employer’s] usual
and customary notice and procedural requirements . . . absent unusual
circumstances.” If the employee does not comply with those requirements, then
the FMLA does not give him the right to take leave.
Cundiff, 597 F. App’x at 300 (citations omitted).
Here, JBS’s attendance policy required employees to “notify the company if they [would]
not be able to report to work.” (D.N. 42-7, PageID # 282) Proper notification involved “calling
the answering machine . . . at least 30 minutes prior to their scheduled starting time and
providing identifying information and the reason for the absence.” (Id.) It is undisputed that

6

Alcegaire did not call in her absences in accordance with the policy.6 (D.N. 35-2, PageID # 12728) Alcegaire has pointed to no authority indicating that the Court clearly erred in rejecting her
FMLA interference claim. The Court therefore declines to grant Rule 59(e) relief on this basis.
C.

Causation Element of Wrongful Discharge

The Court granted summary judgment to JBS on Alcegaire’s wrongful-discharge claim in
part because Alcegaire “point[ed] to nothing other than temporal proximity in support of her
causation argument.” (D.N. 46, PageID # 308) See Witham v. Intown Suites Louisville Ne.,
LLC, 815 F.3d 260, 263 (6th Cir. 2016) (requiring “a causal connection” between the plaintiff’s
participation in a protected activity and the defendant’s adverse employment action in order to
establish claim for wrongful discharge). In reaching this conclusion, the Court relied upon Bush
v. Compass Group USA, in which the Sixth Circuit stated that “under Kentucky law, temporal
proximity between a worker’s protected activity and an adverse employment action is generally
insufficient to sustain a retaliation claim where . . . the plaintiff ‘does not point to any other facts
or circumstances which would support an inference that [the employer] retaliated against [the
plaintiff] based on [the workers’ compensation] claim.’” 683 F. App’x 440, 454 (6th Cir. 2017)
(quoting Collins v. Sapphire Coal Co., No. 2010-CA-000690-MR, 2011 WL 4633099, at *3 (Ky.
Ct. App. Oct. 7, 2011)).
Alcegaire argues that the Court clearly erred in relying on Bush. (D.N. 48-1, PageID #
320) Alcegaire first asserts that the facts and holding of Bush are distinguishable from the facts

6

Alcegaire asserts that “she was not told she had to call in daily” and that she was never
“advised that her position was in jeopardy because she had not called in on a daily basis.” (D.N.
48-1, PageID # 319-20) She does not deny, however, being aware of the policy and its warning
that failure to properly notify the company of absences could result in termination. (See D.N.
42-7, PageID # 282, 284)
7

here. (Id.) Even assuming the existence of factual differences between the two cases,7 such
differences fail to show that the Court clearly erred in relying on the rule stated in Bush—that
temporal proximity alone is generally insufficient to sustain a retaliation claim. Notably, the
Sixth Circuit stated this rule within the context of a workers’ compensation retaliation claim
pursuant to Ky. Rev. Stat. § 342.197, the same statute upon which Alcegaire relies. See Bush,
683 F. App’x at 453-54. (See D.N. 1, PageID # 21)
Second, Alcegaire argues that the correct rule is that “when the adverse employment
action occurs very close in time (less than a month) after the employee has engaged in protected
activity . . . temporal proximity alone is sufficient to establish the prima facie element of
causation for wrongful discharge claims.” (D.N. 48-1, PageID # 321) But the cases Alcegaire
cites in support of that rule were not decided under Kentucky’s workers’ compensation statute.
See Savage v. Fed. Express Corp., 856 F.3d 440, 448 (6th Cir. 2017) (decided under the
USERRA); Frazier v. Richland Pub. Health, 685 F. App’x 443, 445, 455 (6th Cir. 2017)
(decided under Title VII); Johnson v. Fifth Third Bank, 685 F. App’x 379, 385 (6th Cir. 2017)
(decided under the FMLA); Adamov v. U.S. Bank Nat’l Ass’n, 681 F. App’x 473, 477-78 (6th
Cir. 2017) (decided under Title VII); Lee v. Cleveland Clinic Found., 676 F. App’x 488, 490,
499 (6th Cir. 2017) (decided under Title VII); Asbury Univ. v. Powell, 486 S.W.3d 246, 251, 259
(Ky. 2016) (decided under the KCRA). As such, they do not establish that the Court clearly
erred in relying on the rule from Bush.

While the Court acknowledges that the caselaw

7

Alcegaire asserts that Bush is factually distinguishable because in that case, “the adverse
employment action was already in place before the protected activity.” (D.N. 48-1, PageID #
320) But a review of the case reveals that the adverse employment action (the plaintiff’s
termination) took place after the plaintiff reported workplace injuries. See Bush, 683 F. App’x at
453-54.
8

addressing temporal proximity within the context of retaliation claims is not a model of clarity,8
it cannot conclude that it committed a clear error of law in the absence of any authority casting
doubt upon Bush. See Saunders v. Ford Motor Co., 879 F.3d 742, 752-53 (6th Cir. 2018)
(declining to address whether temporal proximity was sufficient to prove causal connection
under Ky. Rev. Stat. § 342.197).
Finally, Alcegaire refers to her earlier brief and the “additional evidence” she purportedly
presented to show causation. (D.N. 48-1, PageID # 321; see D.N. 42) But Rule 59(e) does not
permit parties to re-argue a case.

See Howard, 533 F.3d at 475.

The Court declines to

reconsider evidence presented on summary judgment. See Conner v. State Farm Mut. Auto. Ins.
Co., 273 F. App’x 438, 444 (6th Cir. 2008) (“Moreover, [the plaintiff’s] argument that the
district court should have reconsidered the circumstantial evidence she offered is not a proper
basis upon which to alter or amend a judgment.”).
For the first time Alcegaire cites to a letter in which JBS gave her ten days to submit
medical documentation; she asserts that JBS instead fired her on the sixth day. (D.N. 48-1,
PageID # 321-22; see D.N. 48-3) Alcegaire argues that one reason for the early termination
“could easily have been because of receipt of the letter from Ms. Alcegaire’s lawyer [regarding
her workers’ compensation claim].” (D.N. 48-1, PageID # 322) But the Court is unable to find
any reference to this particular argument in Alcegaire’s earlier response.9 (See D.N. 42, PageID

8

Another judge in this district earlier acknowledged, within the context of a retaliation claim
based on racial discrimination, that this Circuit “ha[d] not adopted a uniform approach on
whether causal connection may be established solely on the basis of temporal proximity” and
that “there [were] certainly conflicting cases within the Sixth Circuit, depending on the
circumstances.” Harris v. Burger King Corp., 993 F. Supp. 2d 677, 687-88 (W.D. Ky. 2014)
(citation omitted).
9
Indeed, Alcegaire appears to have relied exclusively upon temporal proximity in order to
establish causation. (See D.N. 42, PageID # 229 (“The temporal proximity between these events
satisfies the causation element.”))
9

# 228-29) Rule 59(e) does not permit parties to raise new arguments that could have been raised
before. See Roger Miller Music, Inc., 477 F.3d at 395. And Alcegaire has not argued that the
letter is “newly discovered evidence.” The Court again declines the request to alter or amend its
earlier Judgment.
Even assuming that Alcegaire could show causation, however, the Court would still
conclude that she cannot prevail on her wrongful-discharge claim. As the Court explained in its
earlier Memorandum Opinion and Order, the evidence shows that JBS had a legitimate reason
for terminating Alcegaire’s employment after she repeatedly failed to comply with the
company’s call-in requirements.

(D.N. 46, PageID # 309-10)

Because the Court is not

convinced that this reason was pretextual,10 Alcegaire’s claim must fail, and her Rule 59(e)
motion will be denied. See Saunders, 879 F.3d at 753.
D.

Request to Supplement Record

Finally, Alcegaire seeks to supplement the record with an exhibit that was mistakenly
omitted from her response in opposition to summary judgment. (D.N. 48-1, PageID # 316) The
omitted exhibit contains a letter sent from a law firm to JBS advising the company that the firm

10

In her reply brief, Alcegaire cites new evidence in support of her pretext argument. (D.N. 52,
PageID # 350-51; see D.N. 52-2; D.N. 52-3) This evidence is unaccompanied by any argument
that it was previously unavailable, however. (See D.N. 52, PageID # 350-51) It is therefore not
an appropriate basis for Rule 59(e) relief. See GenCorp, Inc., 178 F.3d at 834. Alcegaire also
relies on her termination letter, which stated that she was fired for failing to comply with the
attendance policy when she failed to provide supporting documentation for her absences. (D.N.
52, PageID # 350-51, see D.N. 42-6) But Alcegaire did not argue that the termination letter
showed pretext until her reply brief in support of her Rule 59(e) motion. The argument is thus
not properly before the Court. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.
2008) (“[W]e have found issues to be waived when they are raised for the first time in motions
requesting reconsideration or in replies to responses.”). In any event, and for the reasons
explained below, the termination letter does not establish that Alcegaire’s violation of the
attendance policy and its call-in requirements “did not actually motivate” her termination. See
Witham v. Intown Suites Louisville Ne., LLC, No. 3:13-CV-1167-DJH, 2015 WL 3646802, at *5
(W.D. Ky. June 10, 2015), aff’d, 815 F.3d 260 (6th Cir. 2016).
10

had been retained to represent Alcegaire in her workers’ compensation claim. (D.N. 48-2)
Although this exhibit was omitted from Alcegaire’s earlier response, the Court assumed the truth
of the information in the exhibit—that JBS fired Alcegaire after receiving a letter from her
lawyer regarding her workers’ compensation claim. (D.N. 46, PageID # 310; see also D.N. 42,
PageID # 229-30) But the Court concluded that this fact was “insufficient to show pretext”
because “JBS’s delay in terminating [Alcegaire did] not prove that she was terminated for any
reason other than her failure to comply with the attendance policy.” (D.N. 46, PageID # 310)
See also Witham, 815 F.3d at 264 (“Companies need not rashly discharge an employee at the
first sign of trouble to prove the sincerity of their motives, and [the defendant’s] minimal delay
does nothing to undermine its explanation for firing [the plaintiff].”).
Indeed, the law firm letter was the only evidence Alcegaire presented suggesting that JBS
fired her in retaliation for bringing a workers’ compensation claim. (See D.N. 42, PageID # 21718, 229-30) But the fact that JBS “knew [Alcegaire] had a workers’ compensation claim does
not mean [that it] discharged her because of that claim.” Witham, 815 F.3d at 264.
The Court sees no need to grant Alcegaire’s request to supplement the record given that it
already considered the essential content of the letter in its earlier decision. The letter does not
constitute “newly discovered evidence,” and Alcegaire has not shown that the Court clearly erred
in concluding that JBS’s stated reason for firing Alcegaire (her failure to comply with the
attendance policy’s call-in requirements) was legitimate and not pretextual. (D.N. 46, PageID #
309-10) Alcegaire’s request to supplement will therefore be denied.
IV.

CONCLUSION
For the reasons set forth above, and the Court being otherwise sufficiently advised, it is

hereby

11

ORDERED that Alcegaire’s motion to alter or amend the Judgment (D.N. 48) is
DENIED.
June 19, 2018

David J. Hale, Judge
United States District Court

12