West v. Pella Corp.

Filing 69

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 1/9/2018 denying 50 Motion for Reconsideration. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:16-CV-154-TBR
CHARLES WEST,

PLAINTIFF

v.
PELLA CORPORATION,

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Pella Corporation’s Motion to Reconsider
Denial of Summary Judgment, [DN 50.] Plaintiff Charles West responded, [DN 51], and Pella
Corporation replied, [DN 54.] Fully briefed, this matter is now ripe for adjudication. For the
reasons set out below, Pella Corporation’s motion to reconsider is DENIED.
BACKGROUND
This matter arises out of Plaintiff Charles West’s employment with Pella Corporation
(“Pella”) at its manufacturing plant in Murray, Kentucky. The following facts, in substantial part,
are taken from the Court’s previous Memorandum Opinion and Order denying Pella’s Motion
for Summary Judgment, [DN 47.] West was employed by Pella from March 2004 until his
termination in February 2015. [DN 22-1 at 7 (West Deposition).] According to Pella, West had a
history of attendance issues throughout his employment. [See DN 20-1 (Pella’s Motion for
Summary Judgment).] Most recently, in June of 2014, West injured his back at work while
lifting heavy windows. [DN 22-1 at 11.] West began calling in sick for work on June 9, 2014,
and continued to call in every day until he returned to work on August 26, 2014. [DN 20-11 at 2
(Jeremy Phillips Affidavit).] Each day, West stated that he could not work due to back pain or
spasms. [Id.]
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West explained in his affidavit that, by calling in every day to report that he was not
feeling well enough to work, he followed the same procedure as he had during a previous
absence in 2005 when he was absent due to extensive dental work related to severe gum disease.
[DN 22-3 at 21 (West Affidavit.)] According to West, during this period, after he called in every
day for several weeks, Pella sent West FMLA paperwork to be completed by West and his
dentist. [Id. at 2.] In other words, West stated that he “did not ask for the paperwork, and did not
know or understand that it was FMLA paperwork” related to his 2005 absences. [Id.]
After West injured his back in 2014, he first visited a primary care physician about two
weeks after he began his absence from work. [DN 22-1 at 14–15.] That visit took place on June
26, 2014, and resulted in diagnoses of lumbago and muscle spasms. [DN 20-24.] Additionally,
West’s provider prescribed multiple medications. [Id.] After that visit, West went into Pella to
provide the doctor’s note from that visit to Jeremy Phillips, Pella’s human resources manager.
[DN 22-1 at 19–20.] According to West, at that time, Phillips provided him with contact
information to apply for short-term disability benefits. [Id. at 20.] Though Phillips averred in his
affidavit that West received both short-term disability and FMLA leave paperwork, [DN 20-11 at
2], West testified in his deposition that Phillips only told him about short-term disability, and
only provided him with a phone number to call, rather than paperwork. [DN 22-1 at 18.] West
did apply for short-term disability, but his application was denied because his “doctor’s notes
didn’t cover the entire time that [he] was out” from work. [Id. at 20.] When asked whether West
ever applied for FMLA leave during his absence, West responded “I didn’t know anything about
it.” [Id. at 21.] The parties agree that West never filled out an application for FMLA leave
relating to his June 9 to August 25, 2014 absences.

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According to West, sometime in July, his manager, Johnny Phillips, contacted him and
told him that, since he had been out from work, he needed to go back to the doctor. [Id. at 15–
16.] On July 31, 2014, West returned to the same primary care provider he saw at his previous
visit. [DN 20-25.] At that visit, West’s doctor performed an x-ray, which revealed severe
arthritis, in addition to his other diagnoses of degenerative disc disease and lumbago. [Id.; DN
22-1 at 17.] The doctor prescribed West multiple medications. [See DN 20-25.]
When West returned to work on August 26, 2014, he received two disciplinary letters,
called “Class 3 Corrective Action Letters,” related to his absence from June 9 to August 25,
2014. Both letters are dated June 25, 2014. [DN 20-13; DN 20-14.] The first Corrective Action
Letter was issued due to West’s failure to report for mandatory overtime on June 14 and June 21,
2014. [DN 20-13.] The second Corrective Action Letter was issued due to “excessive
absenteeism” from June 9, 2014 to June 25, 2014. [DN 20-14.] Both letters warned West that
“receiving three Class 3 Corrective Action Letters in a one-year period will lead to the
termination of your employment.” [DN 20-13; DN 20-14.] West testified that he was told to sign
both letters (which he did), or that he would be terminated. [DN 22-1 at 27.]
West testified during his deposition that, after he received the two Corrective Action
Letters upon his return to work on August 26, he informed Pella that he would “be on medication
for the rest of [his] life” due to his back issues. [Id. at 44.] However, West did not discuss with
Pella representatives what type of medication he was on. [Id. at 45.]
Pella’s records indicate that West next called in sick for five consecutive workdays in
February 2015. According to Pella, West called in sick on February 4, 5, 6, 9, 10, and 12. [DN
22-1 at 29–30.] West’s manager at that time, Tony Robinson, stated that, each day West called in
on February 4, 5, and 6, that West requested vacation for those days. [Id. at 30.] Robinson stated

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that he approved West for vacation, but that on the third day, he charged West with an
attendance incident for failing to request the vacation in advance as required by Pella’s policy.
[Id. at 31.] Pella next claims that West called in sick on February 9 and 10 after he ran off the
road and his truck got stuck in the mud. [Id. at 31–32.] Finally, Pella’s records indicate that West
also called in sick on February 12, 2015 for “personal business.” [DN 20-20.]
West agrees that he called in sick on February 9 when his truck was stuck, but denies
ever calling in sick on February 4, 5, 6, 10, or 12. [Id. at 30–32.] According to West, he “was
only out one day” in February. [Id. at 33.] According to Phillips, on February 10, 2015, West
was formally counseled over the phone about his absences and tardiness at work. [DN 20-11 at
3.] West testified that he could not recall this phone conversation ever taking place. [DN 22-1 at
35–36.] West agreed, however, that after he was absent for his truck breaking down, Pella called
to inform him that he was suspended for absenteeism. [Id. at 37–38.] According to West, he was
already suspended before February 12, 2015, when Pella claims West called in sick due to
“personal business.” [DN 22-1 at 41.]
Pella sent West a letter via certified mail dated February 12, 2015 stating that West
received a third Class 3 Corrective Action Letter on February 12, 2015 for “excessive
absenteeism/tardiness’ and that he was discharged from employment at Pella that same day for
receiving three Class 3 Corrective Action Letters in a twelve month period. [DN 20-20.]
According to Pella, Jeremy Philips met with West on February 13, 2015 to discuss his attendance
issues. [DN 20-11 at 4.] Philips states that he asked West whether “there was an underlying
reason for the absences that [Pella] could address though Pella’s employee assistance program,
and Mr. West answered no and mentioned that his absences were caused by ‘other stuff that
keeps happening.’” [Id.]

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Under Pella’s Attendance Policy, unexcused absences constitute “occurrences,” and the
time employees miss from work count toward the calculation of an “absenteeism rate %.” [DN
20-5 at 1.] Pella’s Policy explains that an employee’s attendance record will be considered
“unacceptable” when an employee incurs four or more occurrences or has an absenteeism rate of
2% or higher, whichever occurs first in a rolling twelve-month period. [Id. at 2.] According to
Pella, because West’s attendance record violated its attendance policy, and because West
received three Class 3 Corrective Action Letters in a one-year period, it determined that West
was properly terminated under the progressive discipline process outlined therein. [DN 20-11 at
5.] Pella sent a termination letter to West on February 18, 2015 formalizing his February 12,
2015 discharge. [Id.]
West later brought suit against Pella asserting claims of FMLA interference and FMLA
retaliation. [DN 15 (First Amended Complaint).] In a Memorandum Opinion and Order dated
October 20, 2017, the Court denied Pella’s motion for summary judgment as to both of those
claims. [DN 47.] Thereafter, Pella filed the instant motion to reconsider, [DN 50.]
STANDARD
Although the Federal Rules of Civil Procedure do not provide expressly for “motions for
reconsideration,” Pella’s instant motion seeks relief under Federal Rule of Civil Procedure 54(b),
which provides that
any order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties' rights and
liabilities.
Fed. R. Civ. P. 54(b). Indeed, the Court has “inherent power to reconsider interlocutory orders
and reopen any part of a case before entry of a final judgment.” Mallory v. Eyrich, 922 F.2d

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1273, 1282 (6th Cir. 1991) (citing Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1,
47–48 (1943)). Further, “district court[s] may modify, or even rescind, such interlocutory
orders.” Id. (citing Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88 (1922)). Here, because
the Court did not direct final judgment in its prior Memorandum Opinion and Order denying
Pella’s motion for summary judgment, Rule 54(b) is applicable to Pella’s motion to reconsider
that decision.
DISCUSSION
In its motion for reconsideration, Pella argues that the Court made three main errors
which merit reconsideration. The Court will address each of these arguments in turn.
(1) Medical Records
First, Pella contends that the Court erroneously relied, in part, on West’s July 31, 2014
medical records as evidence that Pella could have had notice of West’s FMLA-qualifying
condition when, in actuality, those records were never provided to Pella. [DN 50-1 at 2.] In its
prior Memorandum Opinion, the Court discussed two doctor visits and accompanying medical
documents. First, West visited the doctor on June 26, 2014. [DN 20-24.] His medical records
from the June 26 visit indicate that he could “get onto [the] exam table without difficulty,”
identified his diagnoses as lumbago and spasm of muscle, noted that his doctor prescribed him
various medications, and stated that he should be off work on June 27 and 28, but that he could
return on June 30. [DN 20-24 at 2.] Pella agrees that West provided his June 26, 2014 medical
records to Pella. [See DN 50-1 at 3 (Arguing that “West only provided medical information twice
– the medical record in June and his July note.”).]
The parties agree that, after West continued to miss work following the June 26 doctor
visit, “Pella spoke to Mr. West after the absences and encouraged him to return to the doctor and

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try to secure documentation for his unexcused absences.” [DN 54 at 9.] This led to West’s
second doctor visit on July 31, 2014. During that visit, West’s doctor performed an x-ray, which
revealed new diagnoses of severe arthritis, degenerative disc disease and lumbago. [DN 20-25 at
2.] The doctor prescribed West with multiple medications and explained to him that “this will be
a chronic condition that will flare up from time to time.” [Id. at 3.] In its Memorandum Opinion,
the Court concluded that, based on West’s June 26 and July 31 doctor visits and accompanying
medical records, West suffered from a chronic “serious health condition” such that he was
eligible for FMLA leave. [DN 47 at 12.] In its motion to reconsider, Pella does not ask that the
Court reconsider this determination. Rather, it requests that the Court reconsider its finding that
genuine disputes of material fact exist as to whether Pella had sufficient notice of West’s FMLAqualifying condition and intent to take FMLA leave, as is required by the fourth element of a
prima facie case for FMLA interference. Demyanovich v. Cadon Plating & Coatings, LLC, 747
F.3d 419, 427 (6th Cir. 2014) (citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 506 (6th Cir.
2006)).
In its motion to reconsider, Pella argues that West never provided it with his July 31,
2014 medical records, which contained Pella’s diagnoses of SI joint arthritis, degenerative disc
disease, and the description of his injuries as “chronic.” [DN 50-1 at 2.] According to Pella, all
West provided it with after the July 31 doctor visit was a boilerplate note that stated “This is to
certify that Charles L West is under the care of Susan Heffley MD and will be absent from
school/work today. Charles L West will be able to return to work/school on 8/4/14.” [DN 20-12.]
Pella contends that “there is no dispute that Mr. West never provided the July 31, 2014, medical
records to Pella.” [DN 50-1 at 2.]

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In his response to Pella’s motion to reconsider, West contends that “that fact is disputed.”
[DN 51 at 2.] West does acknowledge that he never gave the July 31 medical records directly to
Pella. [Id. at 2–3.] However, West argues that, because he gave copies of both the June 26 and
July 31 medical records to Pella’s third party administrator of short term disability benefits,
Matrix Absence Management, Inc. (“Matrix”), Pella, by extension, had access to all of those
records. [Id.] In support of this argument, West argues that he also never presented his June 26
medical records directly to Pella, but that Pella must have accessed those records by obtaining
them through Matrix. [Id.] In making this argument, West asks the Court to take judicial notice
of a portion of Matrix’s website which allegedly addresses Matrix’s clients’ ability to access
information related to their employees’ claims for medical leave. [Id. at 2.]
Pella opposes West’s arguments in its reply, pointing first to Federal Rule of Evidence
201, which “governs judicial notice of an adjudicative fact only.” Fed. R. Evid. 201(a). Rule
201(b) provides that a “court may judicially notice a fact that is not subject to reasonable dispute
because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201 (b)(1)–(2). According to Pella, an inference that Pella saw West’s
July 31 medical records cannot be accurately and readily determined merely from a page on
Matrix’s website generally discussing how Matrix provides disability claim information to its
employer-clients. The Court agrees. Under Rule 201(b)(2), the subsection applicable in this
situation, judicial notice is proper only in circumstances in which a fact “can be accurately and
readily determined” from the source at issue. Here, the page on Matrix’s website titled “Clients:
Employer Services,” vows to provide employers with “up to date claim information and reports
online.”

Clients:

Employer

Services,

8

Matrix

Absence

Management,

http://www.matrixcos.com/clients.html (last visited Jan. 8, 2018). It further explains that
Matrix’s “eReports” feature allows “clients [to] have access to a wide variety of claim and leave
related data, which allow users to perform a range of business functions including bank account
reconciliation, claims experience and performance, loss analysis and intermittent leave tracking.”
Id. Nowhere on the webpage however, does it provide that employers have access to its
employees’ medical records that an employee submits to Matrix in support of its leave claim.
Accordingly, it is cannot “be accurately and readily determined” from this website that Pella had
access to all of West’s medical records, including his July 31 records. Therefore, the Court will
not take judicial notice of the Matrix webpage.
Furthermore, West does not submit any deposition excerpts, affidavits, or declarations
either from himself or another witness to support a finding that Pella had access to his medical
records through Matrix. In contrast, Pella attached to its reply the declaration of Jeremy Phillips,
the Human Resources Manager at Pella during all times relevant to this litigation. [DN 54-1.]
Therein, Phillips declares that he has “full knowledge of Pella’s human resources files and record
systems, including Pella’s interaction with third-party vendors.” [Id. at 1.] Phillips further states
that he “can confirm that no one at Pella had (or has) any ability to access Mr. West’s medical
records submitted to Matrix. Pella does not have any login or password to the Matrix website or
any other means of accessing such records. This was true in 2014-2015, and it remains true
today.” [DN 54-1 at 2.] Because West did not submit any evidence to contradict this statement,
this fact is not genuinely disputed.
Notwithstanding Pella’s lack of access to the July 31, 2014 medical records, however, the
Court still finds that a trier of fact could determine that Pella had notice of West’s FMLAqualifying condition such that he intended to take FMLA leave. As the Court explained in its

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prior Memorandum Opinion, “[t]he employee’s burden is not heavy” with regard to giving an
employer such notice. Wallace v. FedEx Corp., 764 F.3d 571, 586 (6th Cir. 2014)). Rather, “the
employee need not expressly assert rights under the FMLA or even mention the FMLA.” 29
C.F.R. § 825.303(b). In Reeder v. County of Wayne, Michigan, for instance, the Sixth Circuit
explained the employee and employer’s duties in detail as follows:
An employee need not expressly assert rights under the FMLA, but will be
deemed to have given the employer sufficient notice by providing information
from which the employer can reasonably conclude that an FMLA-qualifying
circumstance is in play. Once the employee has met this low threshold
requirement, it is incumbent on the employer—if more information is needed to
determine whether the condition is FMLA-qualifying—to require, by written
notice, certification by a health-care provider. This written notice must also
include notice of the consequences of an employee’s failure to provide adequate
certification. Further, if the employee provides incomplete certification, the
employer shall so advise the employee and “shall state in writing what additional
information is necessary.” 29 C.F.R. § 825.305(c).
694 F. App'x 1001, 1006 (6th Cir. 2017) (citing Wallace, 764 F.3d at 586–88; 29 C.F.R. §
825.305(c)). The key question in Reeder, as in this case, is “whether [plaintiff] provided the
[employer] sufficient information to trigger its obligation to give him written notice of his need
to provide adequate medical certification, and of the consequences of failing to do so.” Id. at
1006.
In this case, the parties agree that Pella, through West’s manager, Johnny Phillips, told
West to return to the doctor after he continued to be absent from work following his June 26
appointment. Indeed, in its reply, Pella emphasizes that it “instructed Mr. West to go back to the
doctor to try to obtain additional documentation – the exact opposite of any intent to write up Mr.
West unfairly.” [DN 50-1 at 13.] West did as Pella requested and visited his doctor a second time
on July 31, 2014. When asked during his deposition whether West “follow[ed] up with Mr.
Phillips regarding [his] second visit to the Primary Care as he directed,” West responded that he
“took in [his] doctors’ note to him.” [DN 20-8 at 6.] West explained that “[t]here was no
10

discussion,” but rather Mr. Phillips “said, ‘Do you have your note?’”, and West simply handed it
to him. [Id.]
In the Court’s view, the very fact that Phillips instructed West to return to the doctor to
obtain medical documentation for his absences is “sufficient to create a jury question as to
whether [West] met his ‘notice of intention’ burden” such that “he provided sufficient
information to put [Pella] on notice of its duty to inquire further about whether FMLA leave was
being sought.” Reeder, 694 F. App'x at 1007. The regulations make plain that an employer, “if
more information is needed to determine whether the condition is FMLA-qualifying,” must
specifically inform an employee of the need to complete a medical certification, the
consequences of failing to do so, and, if applicable, what information is missing from an
incomplete certification. Id. at 1006. Though Pella did instruct West to return to the doctor, it
does not appear that it told him to obtain a certification from his health care provider, nor that it
supplied him with a form in anticipation of that visit. There is also no evidence that Pella advised
West of the consequences of failing to bring a completed certification or adequate medical
documentation following his July 31 visit. Finally, there is no evidence that Pella advised West
that the generic note West did provide it with following his July 31 visit was inadequate or what
additional information was necessary. See id.
Taking all of these facts together, the Court finds that, even without the medical records
pertaining to West’s July 31 doctor appointment, the fact that West repeatedly called in sick due
to back injury, provided Pella with his June 26 medical records, and the fact that Pella instructed
West to return to the doctor to obtain further documentation combine to create a an issue of fact
as to whether Pella had notice of West’s intention to take FMLA leave. The Court acknowledges
that many of the issues surrounding this determination present close calls. However, at this time,

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viewing the record in record in the light most favorable to West, the Court believes that a
genuine dispute exists for trial.
Pella urges the Court that McClure v. Comair, Inc. compels an opposite conclusion to the
one the Court reaches here. In that case, the District Court for the Eastern District of Kentucky
concluded that the “[p]laintiff has failed to establish that her back spasms constituted a ‘serious
health condition’ because she has not proven that her condition rendered her unable to perform
the functions of her job.” McClure v. Comair, Inc., No. CIV.A. 04-107-DLB, 2005 WL 1705739,
at *5 (E.D. Ky. July 20, 2005). However, the McClure court’s analysis hinged on its
determination that McClure did not prove that she suffered from a serious health condition rather
than a failure to satisfy the notice requirement, as in West’s case. In fact, the McClure court, like
this Court, determined that disputed issues of fact existed as to whether McClure gave adequate
notice of her need for leave to her employer. Id. at *4. Specifically, the court explained that
“there are several issues regarding the adequacy of Plaintiff’s notice, including: 1) when Plaintiff
gave notice, 2) the substance of the notice, and 3) to whom notice was given. On those bases,
summary judgment will be denied.” Id. As the Court explained above, many of these same notice
issues are present in this case. Though the McClure court ultimately granted summary judgment
on the grounds that McClure had not proven a serious health condition, that circumstance does
not exist here, where the Court has already concluded that West did suffer from a serious health
condition. [DN 47 at 12.] Thus, Pella’s reliance on McClure is unpersuasive.
(2) Legitimate, Nondiscriminatory Reason and Pretext
Second, Pella asserts that the Court applied an incorrect standard for determining whether
Pella met its burden of identifying a legitimate, nondiscriminatory reason for terminating West’s
employment. [DN 50-1 at 8.] In its motion for summary judgment, Pella proffered a legitimate,

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nondiscriminatory reason for terminating West. There, Pella stated, on pages fourteen and fifteen
of its motion, that:
Pella thoroughly establishes a legitimate, nondiscriminatory basis for its
termination decision: Mr. West’s violations of the Attendance Policy. As fully
documented above, Mr. West was absent from work on February 4, 5, 6, 9, 10,
and 12th, which made him subject to termination, even though he used vacation
days to cover February 4, 5, and 6. Policy violations have repeatedly been held to
constitute legitimate, nondiscriminatory bases for employment decisions.
[DN 20-1 at 14–15.]
For every subsequent claim Pella addressed in its motion (West initially brought six),
Pella stated that it “refers to and incorporates above analysis of its legitimate, nondiscriminatory
basis for Mr. West’s termination.” [DN 19, 27, 32, 35.] Accordingly, while Pella argues in its
motion for reconsideration that it has never argued that it could have legitimately terminated
West based solely on his February 2015 absences, the Court disagrees, based on the above
quotations to Pella’s motion for summary judgment.
In the Court’s prior Memorandum Opinion, the Court found Pella’s proffered reason
relating to solely the February absences to be insufficient, first, because whether West indeed
missed each of the days in February was genuinely disputed. [DN 47 at 16–17.] Next, the Court
reasoned that, “though Pella claims it could have legitimately terminated West based solely on
his February absences, it does not appear that this is what Pella actually did.” [Id. at 18.] Rather,
the Court pointed to West’s termination letter, which referenced all three of the Class 3
Corrective Action Letters Pella issued to West in the year preceding his termination, two of
which were issued during West’s June 9 to August 25, 2014 absences. [DN 20-20 at 1.]
Pella argues that the Court’s analysis of Pella’s legitimate, nondiscriminatory reason was
error, however, because an employer’s burden at the summary judgment stage is merely to
produce a legitimate, nondiscriminatory reason, not to actually persuade the Court that the
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reason, in fact, motivated the employer’s decision. [DN 50-1 at 8–9.] Pella is correct in this
regard. The Supreme Court has made clear that, after a plaintiff makes out his prima facie case,
“[t]he burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination
by producing evidence that the plaintiff was rejected, or someone else was preferred, for a
legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was
actually motivated by the proffered reasons.” Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981). The employer’s burden is merely a “burden of production.” Id. at 255. If the
employer successfully carries this burden, “the plaintiff will have a full and fair opportunity to
demonstrate pretext.” Id. at 255–56.
Upon closer examination, it appears that Pella is correct that the Court conflated the third
and fourth steps of the McDonnell Douglass analysis. In its Memorandum Opinion, the Court
concluded that Pella’s proffered reason was insufficient because it did not appear, based on
West’s termination letter, that Pella actually did terminate him solely on the basis of his February
2015 absences. Pella is correct that this determination was improper at the third step of the
McDonnell Douglass analysis. Rather, it must be reserved for the fourth step. The fourth step
provides that a plaintiff may demonstrate pretext “by showing: ‘(1) that the [employer's]
proffered reasons [for the adverse employment action] had no basis in fact, (2) that the proffered
reasons did not actually motivate the employer's action, or (3) that they were insufficient to
motivate the employer’s action.’” Parkhurst v. Am. Healthways Servs., LLC, No. 16-6502, 2017
WL 2790684, at *3 (6th Cir. June 27, 2017) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400
(6th Cir. 2009)). Therefore, the Court’s reasoning that the February absences, alone, did not
actually appear to motivate Pella’s decision to terminate West must go only to its pretext
analysis. However, because that analysis is still valid, just under the fourth prong rather than the

14

third, the Court stands by its initial reasoning, with the acknowledgement that its analysis must
be directed only towards the pretext phase of the McDonnell Douglass test.
In its motion for reconsideration, however, Pella states that it
has consistently argued that it terminated Mr. West on the basis of [the] 2014 and
2015 absences together over a twelve-month period. Pella first articulated the
reason generally as “Mr. West’s violations of the Attendance Policy,” see DE
#20-1 at 14-15, which is exactly correct because Mr. West received three Class 3
Corrective Action Letters for attendance issues in a twelve-month period.
Consistent with the express language of the Corrective Action Letters, Pella
further explained that the February 2015 absences triggered the termination.
[DN 50-1 at 11.] Thus, according to Pella, its legitimate, nondiscriminatory reason for
terminating West’s employment included his June, July, and August 2014 absences together with
his February 2015 absences, as those events culminated in three Corrective Action Letters in one
twelve-year period which, under Pella’s policy, is grounds for terminations. However, the Court
already addressed this proffered reason in its prior Memorandum Opinion. There, the Court
explained that, to the extent Pella claims it terminated West based, in part, on his 2014 absences,
which may have been FMLA-qualifying, that reason is “intimately intertwined” with West’s
potentially FMLA-qualifying leave. See Wallace, 764 F.3d at 590 (“[W]hen the absences and
cause for discharge relate directly to the FMLA leave . . . there is no legitimate and independent
reason for dismissal. In this case, the purported legitimate reason is intimately intertwined with
the FMLA leave, and therefore, we reject [the employer’s] contention.”). Here, because Pella
clearly relied, in part, on West’s June, July, and August 2014 absences as grounds for his
termination, which may have been protected under the FMLA, genuine disputes remain as to
whether West’s 2014 absences can serve as a legitimate, nondiscriminatory reason for his
termination at the summary judgment stage. If a jury ultimately determines that Pella did not
have adequate notice of West’s alleged need for FMLA leave during his 2014 absences, this

15

reason may prove legitimate. However, at this stage, that reason is intimately intertwined with
genuinely disputed facts regarding West’s 2014 absences. Because Pella’s proffered reason that
it terminated West for both his 2014 and 2015 absences involves disputed issues of fact, the
question of whether it is legitimate must be sent to the jury. Therefore, at this time, West need
not show that this proffered reason is pretext.
(3) Honest Belief Doctrine
Finally, Pella argues that the Court misapplied the honest belief doctrine. As the Court
explained in its Memorandum Opinion, the Sixth Circuit “has adopted an ‘honest belief’ rule
with regard to an employer’s proffered reason for discharging an employee. Majewski v.
Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citing Smith v. Chrysler
Corp., 155 F.3d 799, 806–07 (6th Cir. 1998)). Under the honest belief doctrine, “as long as an
employer has an honest belief in its proffered nondiscriminatory reason for discharging an
employee, the employee cannot establish that the reason was pretextual simply because it is
ultimately shown to be incorrect.” Id. The Court previously reasoned that the honest belief rule is
not applicable to Pella’s legitimate, nondiscriminatory reason, and it stands by that reasoning
here. Courts typically apply the honest belief doctrine when an employee challenges the factual
basis for an adverse employment decision. See Michael v. Caterpillar Fin. Servs. Corp., 496
F.3d 584, 598 (6th Cir. 2007) (Explaining that an employee’s “disagreement with the facts
uncovered in [the employer’s] investigation” into the employee’s work performance did not
create a genuine dispute of material fact because the employer had an honest belief in its reason
for terminating the employee based on those facts). Here, Pella agrees that it terminated West, in
part, based on his two 2014 Corrective Action Letters. Whether or not Pella had an honest belief
that those Corrective Action Letters were warranted, it may ultimately prove that West’s 2014

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absences were FMLA-qualifying, and therefore that termination based on those two Letters was
discriminatory. Accordingly, the honest belief doctrine does not entitle Pella to summary
judgment.
CONCLUSION
The Court acknowledges that several of the determinations at the summary judgment
stage of this case present exceedingly close calls. Moreover, the numerous factual disputes
between the parties relating to the various steps of the McDonnell Douglass test make several of
the issues complicated. However, even upon reconsideration of each of these issues, the Court
finds that Pella’s motion for summary judgment is properly denied. Accordingly, Pella’s motion
for reconsideration, [DN 50], is DENIED.
IT IS SO ORDERED.
Date:
cc:

January 9, 2018

Counsel

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