Greene v. YRC, Inc.
Filing
97
MEMORANDUM AND ORDER denying 76 Motion of YRC, Inc. for Summary Judgment; denying 81 Cross-Motion of plaintiff for Summary Judgment. Signed by Judge Marvin J. Garbis on 2/19/2016. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RANDY L. GREENE
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Plaintiff
vs.
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YRC, INC.
*
CIVIL ACTION NO. MJG-13-0653
*
Defendant
*
*
*
*
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MEMORANDUM AND ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT
The Court has before it Defendant's Motion for Summary
Judgment [ECF No. 76], Plaintiff's Cross-Motion for Summary
Judgment [ECF No. 81], and the materials submitted relating
thereto.
The Court has conducted a hearing and has had the
benefit of the arguments of counsel.
I.
INTRODUCTION
Plaintiff Randy Greene ("Greene" or "Plaintiff") was
employed as a truck driver for Defendant YRC, Inc.1 ("YRC" or
"Defendant") and its predecessor company from 2002 until the
termination of his employment on October 26, 2012.
In this
case,2 Greene sues YRC, asserting claims that his employment was
1
YRC was formed in 2009 by the merger of Yellow Transportation
and Roadway Express.
2
Filed in the Circuit Court for Baltimore City and removed to
this Court.
wrongfully terminated in violation of his rights under the
Family Medical Leave Act, 29 U.S.C. § 2612 et seq. ("FMLA").3
The parties have filed cross-motions, each seeking summary
judgment.
II.
SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the
pleadings and supporting documents "show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."
Fed. R. Civ. P.
56(a).
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement: the
Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically.
After so doing, the
essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.
See,
e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).
3
Thus,
Greene asserted, but voluntarily dismissed, claims based upon
alleged racial discrimination.
2
in order to defeat a motion for summary judgment, "the party
opposing the motion must present evidence of specific facts from
which the finder of fact could reasonably find for him or her."
Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md. 1999)
(emphasis added).
"Cross motions for summary judgment 'do not automatically
empower the court to dispense with the determination whether
questions of material fact exist.'"
Equal Rights Center v.
Archstone Smith Trust, 603 F. Supp. 2d 814, 821 (D. Md. 2009)
(quoting Lac Courte Oreilles Band of Lake Superior Chippewa
Indians v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983)).
Rather,
the court must examine each party's motion separately and
determine whether summary judgment is appropriate as to each
under the Rule 56 standard.
Desmond v. PNGI Charles Town
Gaming, L.L.C., 630 F.3d 351, 354 (4th Cir. 2011).
The court
may grant summary judgment in favor of one party, deny both
motions, or grant in part and deny in part each of the parties'
motions.
See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003).
III. DISCUSSION
At times relevant hereto, Greene was employed as a truck
driver for YRC, a company that transports freight, primarily via
truck, throughout North America.
Greene worked out of the YRC
3
dispatch center in Baltimore, Maryland ("the Baltimore
Terminal").
In or about 2011, Greene began receiving treatment for
chronic high blood pressure and high cholesterol, regularly
taking blood pressure and cholesterol medications prescribed by
his primary care physician, Dr. Brango.
1.
Greene's Version of October 25-26, 20124
At about 8 p.m.5 on the evening of October 25, 2012, Greene
received a call at his Brogue, Pennsylvania home6 from an
outbound supervisor.
The supervisor requested that he appear at
the Baltimore Terminal at 1:00 a.m. on October 26 to receive a
dispatch along his regular Baltimore to Charlotte route.
Greene
was asleep at the time and was irritated to be awoken, but told
the supervisor he would accept the dispatch.
Greene then called
Gary Chapman ("Chapman") the Terminal Manager, complained that
the call had awoken him and also claimed he was entitled to an
additional 15 minutes' pay relating to trouble closing a trailer
4
In the instant summary judgment context, the Court herein
refers to Greene's version of the facts, recognizing that YRC
does not fully agree with him.
5
Greene testified at his deposition that the call was "four or
five hours before I had to come to work" at 1 a.m. Greene Dep.
[ECF No. 76-3] at 109:3-5. An email in the record refers to a
statement by Greene that the outbound supervisor had called him
at "2000" or 8 p.m. See ECF No. 76-2 at 55.
6
About an hour's drive from the Baltimore Terminal.
4
door.7
Chapman responded that he would speak to the supervisor
who had awoken Greene, but that Greene was not entitled to the
15 minutes' pay.
Greene subsequently drove to the Baltimore Terminal,
arriving around midnight.
He saw that Chapman was in the
dispatch office and approached him to again raise the issue
regarding the 15 minutes' pay.
Chapman refused to discuss the
pay issue, at which point Greene accused Chapman of showing
"hostility" toward him.
Greene was upset by this interaction with Chapman,
experiencing chest pains, stomach pains, and shaking hands as a
result.
He went outside to try to calm down while waiting for
his dispatch, still experiencing the same symptoms.
At
approximately 1:15 a.m., however, he accepted his dispatch,
thereby becoming responsible for the freight load.
As Greene was hooking the trailer up to the truck, his
symptoms worsened.
After completing the pre-trip inspection, he
sat in the cab to try to calm down.
At that time, his "chest
was hurting pretty badly," his "hands were shaking," he was
7
Greene contended that he was due 15 minutes' additional pay
related to problems closing the swing door on his trailer on
October 20, 2012. Greene's request was initially denied by
Operations Manager Steve Bruhn, prompting Greene to submit a
Payment Request Form to YRC management. That request was also
denied. The parties have not provided the pertinent dates.
5
having trouble breathing, and he was unable to calm himself
down.
He thought he might be having a heart attack.
Greene felt unable to drive his tractor-trailer all the way
to North Carolina.
Wishing to notify a supervisor but feeling
too ill to go in search of one, Greene asked a nearby coworker,
John Reed ("Reed"), to inform Chapman that he was having chest
pains and needed to leave.
Greene then left the truck and
walked to his car, feeling disoriented, unsteady, and having
trouble breathing.
He got into his car and began the drive back
to his home in Pennsylvania, calling Chapman from the road to
confirm that Reed had delivered the message that he had to leave
on account of chest pains.
2.
The Collective Bargaining Agreement
Greene's employment with YRC was governed by a Collective
Bargaining Agreement ("the CBA"), which consisted of two
documents: (1) the Teamsters National Master Freight Agreement
and (2) the Maryland-District of Columbia Freight Counsel
Supplemental Agreement (the "Local Agreement").
As pertinent
hereto, the CBA provided that:
(1)
An employee may lose seniority as a result of a
"voluntary quit."8 Article 53 Section 4(a)(8) of the
Local Agreement [ECF No. 81-4] at 199.
8
The term "voluntary quit" is not defined in any portion of
the CBA provided to the Court, and the parties do not seem to
6
(2)
An employee shall receive a warning letter before
being discharged for anything other than a "cardinal
offense." Article 45 Section 1(b) of the Local
Agreement [ECF No. 81-4] at 178–81.
(3)
For resolution of employment disputes, employees are
authorized to file a grievance with regard thereto,
pursuant to a process set forth in the CBA.9 See
Chapman Decl. [ECF No. 76-2] at ¶¶ 17-21.
3.
The Discharge
At 4:59 a.m. on October 26, 2012, Chapman sent an email to
Labor Manager Gary Quinn recommending that Greene receive a
discharge letter for a "voluntary quit," pursuant to Article 53
Section 4(a)(8) of the "Local Agreement," on account of Greene's
failure to personally notify a supervisor before leaving sick.
Later that morning, Greene, unaware of Chapman's
recommendation, contacted Dr. Brango and made an appointment for
that same day at 1:15 p.m.
During that appointment, Dr. Brango
found that Greene's blood pressure was elevated and wrote a note
stating that Greene was having "health issues" and should be
agree on what the term means. Plaintiff testified at his
deposition that "a voluntary quit is when somebody just says I
quit." Greene Dep. [ECF No. 76-3] at 41:15-16. YRC cites to
the affidavit of Gary Chapman, who states that the term "is a
term of art under the Contract. Whereas a 'resignation' must be
in writing signed by the employee, a 'voluntary quit' occurs
through conduct or an unwritten communication." Chapman Decl.
[ECF No. 76-2] ¶ 24.
9
It appears that Article 45 Section 2 of the Local Agreement
may set forth this process, but a complete copy of that section
was not provided to the Court. See ECF No. 81-4 at 181.
7
excused from work from October 26, 2012 until November 4, 2012,
signing the form electronically at 1:43 p.m.
note to YRC "at some point thereafter."
Greene faxed the
Def.'s Mem. [ECF No.
76-1] at 13.
Shortly after 4:00 p.m., Chapman notified Greene via
telephone that his employment had been terminated by virtue of a
"voluntary quit" related to the events of that morning.
On October 29, 2012, Greene filed a grievance challenging
his discharge and the matter was referred to the Maryland-DC
Joint Area Committee ("JAC").10
YRC raised a "point of order" to
the JAC, stating that the grievance had been filed under the
wrong provision of the CBA.11
Therefore, YRC argued, the
grievance was not properly before the JAC.
The JAC agreed and
dismissed the grievance.
10
Pursuant to the CBA, when an employee files a grievance,
local management schedules an informal meeting with the employee
to attempt to resolve the grievance. If that attempt is
unsuccessful, the matter is resolved by the geographically
relevant Joint Area Committee, comprised of panelists from YRC
and the Union. If either party is dissatisfied with the JAC's
resolution of the dispute, that party can submit the matter to
binding arbitration. See Def.'s Mem. [ECF No. 76-1] at 4.
11
Greene's grievance was filed under Article 43 Section 10,
dealing with conflicts of interest, but Greene was terminated
under Article 53 Section 4(a)(8). However, this latter
provision deals with loss of seniority, not discharge. See ECF
No. 81-4 at 199 ("Section 4. Loss of Seniority (a) Seniority
shall be broken only by: . . . (8) Voluntary Quit").
8
4.
The Interference Claim
Pursuant to the FMLA, "an eligible employee shall be
entitled to a total of 12 workweeks of leave during any 12-month
period . . . [b]ecause of a serious health condition that makes
the employee unable to perform the functions of the position of
such employee."
29 U.S.C. § 2612(a)(1)(D).
It is unlawful for any employer to "interfere with,
restrain, or deny the exercise or the attempt to exercise, any
right provided under [the FMLA]."
Id. § 2615(a)(1).
To
establish unlawful interference with FMLA rights, Greene must
demonstrate that:
(1) he was an eligible employee,
(2) his employer was covered by the FMLA,
(3) he was entitled to leave under the FMLA,
(4) he gave his employer adequate notice of his intention
to take leave [for a serious health condition], and
(5) the employer denied FMLA benefits to which he was
entitled.
Rodriguez v. Smithfield Packing Co., Inc., 545 F. Supp. 2d 508,
516 (D. Md. 2008);
Brushwood v. Wachovia Bank, N.A., 520 F.
App'x 154, 157 (4th Cir. 2013) (noting the requirement of
"notice of a serious health condition").
Because the Court finds there to be genuine issues of
material fact presented regarding Greene's need to take FMLA
9
leave and the adequacy of notice given by Greene, neither party
is entitled to summary judgment on Greene's interference claim.
a.
Need for FMLA Leave: Serious Health
Condition
YRC concedes12 that Greene's version of the facts, if
accepted by the jury, could certainly support a finding that he
was suffering from a serious health condition.
That is, he felt
terrible, didn't know if he was having a heart attack, and told
a co-worker, Reed, to inform Chapman that he was having chest
pains and needed to leave.
Such notice, including an indication
that Greene was experiencing chest pains, can be found
sufficient to put YRC on inquiry notice that Greene may require
FMLA leave.
And, "[o]nce the employee has provided at least
verbal notice of a serious health condition sufficient to alert
the employer to the fact that the protections of the FMLA may
apply, '[t]he employer should inquire further to ascertain
whether it is FMLA leave that is being sought and to obtain
further details of this leave.'"
Brushwood, 520 F. App'x at 157
(quoting Rhoads v. FDIC, 257 F.3d 373, 383 (4th Cir. 2001)).
Therefore, YRC is not entitled to summary judgment on the ground
that Greene did not have a serious health condition.
12
YRC has conceded, for purposes of its motion for summary
judgment, that Greene suffered from a "'serious health
condition' for which he may have been able to seek FMLA leave."
Def.'s Mem. [ECF No. 76-1] at 19 n.5.
10
Nevertheless, YRC has presented evidence that, if viewed by
a reasonable jury in the way YRC contends, could result in a
finding that Greene left the job site for a reason other than a
serious health condition, for example, due to anger.
is by no means making a fact finding.
The Court
However, there is
circumstantial evidence that could be viewed as contradicting
Greene's position and supporting YRC's.
For example, Greene's
not seeking immediate medical care — i.e., by going to an
emergency room or calling 911 — and not seeking assistance from
anyone, but driving an hour to his home; Greene's not seeking
immediate medical care upon his arrival at home, but making an
appointment for an office visit in the afternoon.
Moreover, the testimony of Reed – albeit somewhat
internally inconsistent – can be viewed as supporting either
YRC's or Greene's position.
Reed first said:
And he [Greene] stopped out there and he
said, "Look, I don't feel good. I've got
pains in my chest" and "Would you tell
them." And I said, "Sure. I'll tell them,"
just like I explained in the note.
Reed Dep. [ECF NO. 76-4] at 14:4-8.
However, later in his deposition, he said:
Q. When Mr. Greene expressed to you that he
was having some sort of physical problem,
did you perceive that it was of a sufficient
degree that it would prevent him from going
into
the
terminal
to
speak
with
a
supervisor?
11
A. No. I mean, I -- it wasn't like he was
going around like this with his chest pains.
So, I mean, I'm no physician to see how bad
of shape he's in. So he just turned around
and left.
Q.
Did you -- did you ask him whether he
needed medical assistance?
A.
Well, I asked him if he was all right
(sic) and he says, "No.
I'm going to go
home" or "go to the doctor's." And he says,
"And I'll return with a doctor's slip. Just
tell them that." So. . .
Id. at 34:3-17.
By virtue of factual issues presented regarding Greene's
need for FMLA leave, Greene is not entitled to summary judgment
with regard to the serious health condition issue.
b.
The Manner of Notice
YRC contends that, even if the content of Greene's notice
is found to have been adequate, the notice was not properly
given.
When, as in the instant case, the need for FMLA leave is
unforeseeable, "an employee must comply with the employer's
usual and customary notice and procedural requirements for
requesting leave, absent unusual circumstances."
825.303(c).
29 C.F.R. §
YRC contends that Greene failed to comply with an
alleged unwritten customary practice requiring notice to be
given directly to a supervisor before an employee leaves work.
12
Therefore, YRC contends, Greene did not properly provide notice
of a need for FMLA leave.
The evidence submitted presents a plethora of factual
issues regarding this contention.
Was there any usual and
customary notice and procedural requirement for requesting
leave?
If so, precisely what was the requirement?
Did Greene
in fact comply, or comply to an adequate degree with that
requirement?
In sum, the Court finds that genuine issues of material
fact prevent summary judgment for either party with regard to
this contention.
5.
The Retaliation Claim
The rights afforded to employees under the FMLA include
protection from retaliation for exercising their rights under
the FMLA.
See Dotson v. Pfizer, Inc., 558 F.3d 284, 294 (4th
Cir. 2009).
Although the FMLA does not explicitly refer to
retaliation, the FMLA regulations state that the "prohibition
against interference prohibits an employer from discriminating
or retaliating against an employee or prospective employee for
having exercised or attempted to exercise FMLA rights."
C.F.R. § 825.220(c).
29
Specifically, the regulations state that
"employers cannot use the taking of FMLA leave as a negative
13
factor in employment actions, such as hiring, promotions or
disciplinary actions."
a.
Id.
The Burden Shifting Framework
To succeed on an FMLA retaliation claim, a plaintiff must
first "make a prima facie showing [1] that he engaged in
protected activity, [2] that the employer took adverse action
against him, and [3] that the adverse action was causally
connected to the plaintiff's protected activity."
Yashenko v.
Harrah's NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006)
(internal quotation marks omitted).
If the plaintiff makes a prima facie showing of
retaliation, the burden shifts to the defendant to articulate a
non-discriminatory basis for the adverse action.
Id. at 550-51
("FMLA claims arising under the retaliation theory are analogous
to those derived under Title VII and so are analyzed under the
burden-shifting framework of McDonnell Douglas Corp. v. Green."
(citation omitted)).
If the defendant is able to offer such a
non-discriminatory basis, the burden shifts back to the
plaintiff to "establish[] that the employer's explanation is
pretext for FMLA retaliation."
Id. at 551.
14
b.
Prima Facie Case
If his version of the facts is accepted, Greene would have
made a prima facie showing adequate to avoid summary judgment.
That is, a reasonable jury could find (1) that Greene sought to
take FMLA leave, a protected activity, (2) that the employer
took adverse action against him by terminating his employment
and, (3) that the termination was caused by his engaging in the
protected activity, attempting to take FMLA leave.
c.
YRC's Non-retaliatory Justification
Because Greene can be found to have made a prima facie
case, YRC must articulate a non-discriminatory justification for
terminating Greene's employment.
YRC has done so.
YRC offers, as its non-retaliatory reason for terminating
Greene's employment, Greene's violation of its alleged notice
policy and his voluntarily quitting his employment.
d.
Pretext for Retaliation
Since YRC has articulated a non-retaliatory justification
for terminating Greene's employment, Greene must establish that
the justification is a pretext for retaliation.
To establish that an explanation for termination is a
pretext for retaliation, a plaintiff must "show that as between
[the request for FMLA leave] and the defendant's explanation,
15
[the request for FMLA leave] was the more likely reason for the
dismissal, or that the employer's proffered explanation is
simply 'unworthy of credence.'"
Burns v. AAF-McQuay, Inc., 96
F.3d 728, 731 (4th Cir. 1996) (citation omitted).
Both Greene and YRC make arguments regarding the reason for
Greene's termination that, depending upon the jury's evaluation
of the evidence, could warrant a verdict in their favor.
Greene, for example, asserts that YRC had never actually
discharged a Baltimore employee for failure to notify a
supervisor before leaving work.
13-17.
Pl.'s Mot. [ECF No. 81] at 11,
He contends that other YRC employees were not terminated
despite having committed violations that, in Greene's view, were
"more serious" than Greene's conduct.
Id. at 18-22.
Greene denies that he could have been terminated under the
"voluntary quit" provision found in Article 53 Section 4(a)(8)
of the Local Agreement because that section deals only with loss
of seniority and not with discipline or termination.
Id. at 3.
Greene asserts that discharge or suspension is governed by
Article 45 of the Local Agreement and requires that an employee
receive at least one warning letter before being terminated.
Id.
Greene received none.
YRC contends that it is YRC's customary practice to issue
"voluntary quit" discharge letters under Section 53 4(a)(8) of
the Local Agreement to unit employees who have left work without
16
first notifying a supervisor.
12.13
Def.'s Mem. [ECF No. 76-1] at
Defendant identifies Brian Titus, Dean Detweiler, and Jay
Bennett as three examples of employees who were issued discharge
letters after walking off the jobsite.
Greene, however, contends that these examples are
distinguishable, because those employees were ultimately
discharged for other reasons and/or worked at a different YRC
facility.
See Pl.'s Mot. [ECF No. 81] at 13-16.
Greene asserts
(1) that Brian Titus had committed numerous other disciplinary
violations14 and was ultimately terminated for "recklessness
resulting in a serious accident while on duty," approximately 18
months after he received a letter of discharge for failure to
complete an assignment without notifying a supervisor, (2) that
Dean Detweiler was terminated for failing to speak to management
before leaving work with regard to an accident he was involved
in, and (3) Jay Bennett apparently did give notice to a
supervisor before going home sick, demonstrating that he was
terminated for another reason.
Furthermore, since neither
13
The effect of such a letter, according to YRC's counsel, is
to begin a grievance process that, through negotiation with the
union, may result in discipline less than discharge. See
Hearing Tr. [ECF No. 96] at 4:15-20.
14
These violations included "an unprovoked assault during
working hours," "insubordination and unprofessional conduct,"
"fail[ure] to complete a run," "fail[ure] to follow
instructions," "excessive absences," "unexcused absence,"
tardiness on three occasions, and minor accidents. Pl.'s Mot.
[ECF No. 81] at 14.
17
Detweiler nor Bennett worked at the Baltimore Terminal, they
were represented by a different union and subject to a different
collective bargaining agreement local supplement than the
drivers at the Baltimore Terminal.
YRC, nevertheless, notes that Titus, Detweiler, Bennett,
and Greene all received discharge letters for failing to notify
a supervisor before leaving work and that Greene has not
identified any instance where such a letter has not followed
such a notification failure.
It is unnecessary to detail further the parties'
contentions, responses, and replies.
There is no doubt that
there are genuine issues of material fact preventing summary
judgment for either side in regard to the reason for Greene's
termination.
18
IV. CONCLUSION
For the foregoing reasons:
1.
Defendant YRC, Inc.'s Motion for Summary Judgment [ECF
No. 76] is DENIED.
2.
Plaintiff Randy Greene's Cross-Motion for Summary
Judgment [ECF No. 81] is DENIED.
3.
Plaintiff shall arrange a telephone conference
regarding trial scheduling to be held by February 29,
2016.
SO ORDERED, this Friday, February 19, 2016.
/s/__________
Marvin J. Garbis
United States District Judge
19
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