Burns v. Dal Italia, LLC

Filing 101

OPINION AND ORDER by Magistrate Judge Kimberly E. West: Defendant's Motion for Summary Judgment (Docket Entry 70 ) granted in part and denied in part. Due date for submission of proposed pretrial order, reflecting the rulings herein, extended to 1/26/2016. (neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
COREY BURNS, an individual,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
DAL-ITALIA, LLC, a foreign
limited liability company,
d/b/a DAL-TILE,
Defendant.

Case No. CIV-13-528-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Summary Judgment (Docket Entry #70). Upon review and consideration
of the filings of the parties, this Court renders this ruling.
Plaintiff was diagnosed with epilepsy at the age of 19 and
experienced seizures as a part of his condition.

Plaintiff

testified that he always has between thirty seconds and three
minutes of advance notice of the coming on of a seizure.

The

advance notice consists of strange smells such as chocolate, the
ocean, pine trees, or a rose.
of a seizure.

He also gets dizzy before the onset

Plaintiff states these precursors always mean a

seizure is coming and he has never experienced a seizure without
first feeling it coming on.

If the seizure is a petit mal,

Plaintiff does not require “very much recovery time.”
Defendant hired Plaintiff in its plant located in Muskogee,
Oklahoma in May of 2006.
products.

The plant manufactures ceramic tile

At the time of his hiring, Plaintiff disclosed that he

suffered

from

seizures

during

interviewer he was on medication.

his

interview

but

told

the

Plaintiff was hired as a Press

Operator at the Muskogee plant, working with machines that formed
the tile pieces.

Plaintiff had explained to the interviewer that

he had been on Social Security disability for a time due to his
seizures.
Plaintiff initially worked on the D shift, working Wednesday
through Saturday from 6:00 p.m. until 6:00 a.m.

He suffered his

first petit mal seizure about one month into his employment with
Defendant. Plaintiff felt the seizure coming on and sat on a stair
near his station on the line.

His supervisor saw that he was

sitting down and asked if he was OK.

Plaintiff told him he was

having a seizure. The supervisor sat with Plaintiff for the minute
and one half that the seizure lasted.

Plaintiff asked if he could

go

well

home

and

his

supervisor

as

as

Larry

Kenworthy

(“Kenworthy”), the D shift manager, allowed him to leave work.
Kenworthy was aware Plaintiff had experienced a seizure, explaining
he had a deceased step daughter who had epilepsy.
Plaintiff again suffered a “medium size” seizure at work about
a month later.
workers.

He sat down on the floor and was observed by other

Kenworthy came over and made sure Plaintiff was okay.

Plaintiff did not go home but recovered in about ten minutes.

In

all, Plaintiff suffered three to four seizures while working as a
press operator.

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In August of 2007, Plaintiff requested a transfer to the glaze
line within the facility because the pay was higher.

His request

was

(“Arnett”).

granted

and

his

new

lead

was

Justin

Arnett

Plaintiff testified that Arnett knew of his condition. During this
time, Kenworthy also allowed Plaintiff to fill in for leads and
told him the next time a lead job came up for bid that he should
bid on it because his attendance, performance, and safety were
good.
On July 10, 2009, Plaintiff was promoted to a lead.

During

this time, Plaintiff was experiencing approximately one or four
seizures per month.
seizures.

These seizures were both petit and grand mal

The longest period Plaintiff went without having a

seizure was six months. Plaintiff was granted Family Medical Leave
Act (“FMLA”) leave for the recuperative time required after his
seizures.

The FMLA forms submitted by Plaintiff were signed by a

Dr. Elgin, physician and/or Mr. Mutch, a physician’s assistant.
FMLA leave is administered at Defendant’s facility by a third
party, Benefits Service Center.

Defendant’s management and human

resources

involved

department

are

not

in

the

processing

or

eligibility determinations in granting or denying FMLA leave.
In November of 2011, Plaintiff eventually stepped down from
his lead position due to his seizures.

He became concerned that

his condition was affecting his ability to focus to keep the tile
quality up to par.

In January of 2013, Plaintiff was restored to

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his lead position about six months later when Plaintiff was
transferred to B shift.
On February 11, 2013, Plaintiff experienced his first seizure
since returning to his lead position on B shift.

At about 8:00

p.m. or 9:00 p.m. at the end of the glaze line, Plaintiff began to
feel dizzy.

A “glaze runner” was coming up the line and noted

Plaintiff was standing and getting dizzy.

Plaintiff went down on

one knee when the glaze runner asked if he was okay.
runner

called

Jack

Wilkes

(“Wilkes”),

one

of

The glaze

the

B

shift

supervisors, on a radio. Plaintiff began having a seizure. Wilkes
called a “code orange” meaning a worker was down.

Wilkes told the

Jeannie Sutton (“Sutton”), the shift manager to call 911, which
Plaintiff testified had never been done before when one of his
seizures occurred.

Sutton also called Joseph Fuller (“Fuller”),

the Human Resources Manager for the facility, to inform him that
Plaintiff had experienced a seizure on the line.
Plaintiff estimates that the seizure lasted about a minute and
a half.
ambulance

He asked Sutton to call his wife and children.
arrived,

Plaintiff

explained

his

seizures

to

An
the

ambulance personnel, walked to the gurney, and was transported by
ambulance to the hospital.

Plaintiff stated he was afraid if he

did not go to the hospital that his work would hold his refusal of
treatment against him.

Plaintiff was released from the emergency

room and went home.

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On

February

12,

2013,

Plaintiff

called

to

take

FMLA

intermittent leave from work to recover from the prior day’s
seizure. Fuller spoke to Sutton and Wilkes concerning the occasion
of Plaintiff’s seizure on February 11, 2013.

Fuller stated that

both Sutton and Wilkes expressed concern for Plaintiff’s safety on
the line.

However, Wilkes testified in his deposition that he did

not have safety concerns for Plaintiff to continue to work as a
glaze line lead on B shift.

He further testified that he had not

reached any decision about what Plaintiff is capable of doing.

He

did testify as to certain limitations Plaintiff might have in the
specific performance of the lead position.
Fuller stated he spoke to Kirk Meinershagen, the facility’s
safety manager, who expressed concern over Plaintiff’s ability to
safely work at the plant based upon his understanding of events.
Fuller determined Plaintiff could not return to work without
documentation from his doctor stating he could safely work at the
plant.
On February 13, 2013, Plaintiff went to work to attend a plant
wide meeting.

He was pulled aside by Fuller and told he could not

put Plaintiff back on the production floor and he did not have any
other job in which to place Plaintiff.

Fuller asked Plaintiff if

he had a doctor’s note and Plaintiff stated he did not.

Plaintiff

told Fuller he did not have a note because of his FMLA paperwork
which contained notations clearing him for work from his physician

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and physician’s assistant. Fuller offered the paperwork for shortterm disability to which Plaintiff stated his condition was not a
short-term disability.

Fuller stated he was filling out the

paperwork for short-term disability and Plaintiff did not argue
with him.

Fuller told Plaintiff he was sending him home and

Plaintiff left.
Plaintiff testified that Fuller did not give him benefits
group

information

or

tell

him

that

he

needed

a

doctor’s

documentation that he could work safely before allowing him to
return to work. Plaintiff did inform Fuller that he had a doctor’s
appointment

on

February

15.

Plaintiff

interpreted

Fuller’s

statements as a termination of his employment with Defendant.
Fuller never told Plaintiff that he was fired.
contact

anyone

associated

with

Defendant’s

Plaintiff did not
human

resources

department or the plant manager after his conversation with Fuller.
Plaintiff’s wife posted on social media that Defendant had
fired Plaintiff.

On March 1, 2013, Fuller contacted Plaintiff

while Plaintiff was in his attorney’s office and reiterated the
need for a doctor’s note to return to work.

Plaintiff told Fuller

he did not obtain a doctor’s note because his FMLA submission
covered it. Fuller also stated Plaintiff was not fired. Plaintiff
ended the conversation.
Plaintiff

was

contacted

by

Robin

Krueger

(“Krueger”),

Defendant’s Human Resources Director in Dallas, Texas on March 22,

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2013 and March 25, 2013.
doctor’s

note

and

she

Krueger reiterated the need for the

provided

him

with

a

copy

of

his

job

description to present to his doctor by correspondence dated April
1, 2013.

Plaintiff did not present the description to his medical

professional and did not contact Defendant.

On April 30, 2013,

Krueger sent Plaintiff a letter informing him if he did not provide
documentation

from

his

doctor

by

May

10,

2013,

he

would

be

considered to have abandoned his job and voluntarily ended his
employment.

Defendant considered Plaintiff separated from his job

on May 10, 2013 when it received no communication from Plaintiff.
Plaintiff initiated this action for violation of the Americans
with

Disabilities

Act

(“ADA”)

and

for

interference

retaliation for exercising his rights under the FMLA.

with

and

Defendant

filed the subject Motion, contending Plaintiff cannot prevail on
any of the asserted claims.
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate, “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that, "there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”

The moving party bears the initial

burden of showing that there is an absence of any issues of
material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106

S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

7

A genuine issue of

material fact exists when "there is sufficient evidence favoring
the non-moving party for a jury to return a verdict for that
party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106

S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). In determining whether
a genuine issue of a material fact exists, the evidence is to be
taken in the light most favorable to the non-moving party. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26
L.Ed.2d 142 (1970).

Once the moving party has met its burden, the

opposing party must come forward with specific evidence, not mere
allegations or denials of the pleadings, which demonstrates that
there is a genuine issue for trial.

Posey v. Skyline Corp., 702

F.2d 102, 105 (7th Cir. 1983).
Defendant first asserts summary judgment is appropriate in
this

case

on

demonstrate

Plaintiff’s

that

he

ADA

suffered

claim
an

because

adverse

Plaintiff

employment

cannot
action.

Generally, the ADA prohibits discrimination “against a qualified
individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training,

and

employment.”

other

terms,

conditions,

42 U.S.C. § 12112(a).

and

privilege

of

In order to prevail on his

claim for violation of the ADA, Plaintiff bears the burden of proof
to establish: (1) that he is a disabled person within the meaning
of the ADA; (2) that he is qualified, that is, with or without

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reasonable accommodation (which he must describe), he is able to
perform the essential functions of the job; and (3) that Defendant
discriminated against him because of his disability.

Davidson v.

America Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003).
Defendant contends Plaintiff cannot demonstrate the third
element of the claim since he voluntarily separated from his
employment with Defendant by abandoning his job on May 10, 2013
rather than February 13, 2013 when Fuller required a doctor’s note
before

allowing

Plaintiff

to

return

to

work.

An

“adverse

employment action” is “liberally defined” and “are not simply
limited to monetary losses in the form of wages or benefits.”
Rather, courts “take a case-by-case approach, examining the unique
factors relevant to the situation at hand.”

Hillig v. Rumsfeld,

381 F.3d 1028, 1031 (10th Cir. 2004)(citations and quotation marks
omitted).

The Tenth Circuit has maintained that “those acts that

‘constitute[ ] a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant
change in benefits” represent adverse employment actions but it
has “not held that the term ‘adverse employment action’ is limited
to such acts.”

Id. at 1032-33).

Under the facts of this case, while this Court does not
necessarily agree with Plaintiff that he was terminated on February
13, 2013, it is clear from both parties’ version of the facts that

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Plaintiff was not at liberty to return to his employment without
fulfilling

the

condition

of

obtaining

a

physician’s

prior

certification that he could return to work, as Defendant was
unwilling or unable to return him to a different position within
the plant.

The satisfaction of the adverse employment action

element does not require an employer to expressly state “you are
fired” since actions less than termination represent an adverse
action.

Moreover,

even

if

short-term

disability

income

was

available to Plaintiff - a fact which is in dispute - the evidence
indicates Plaintiff would have suffered a significant reduction in
salary under disability and he certainly could not return to his
prior employment.

As a result, this Court concludes Plaintiff

suffered an adverse employment action under the facts of this case.
Alternatively, Defendant contends that it made a determination
that Plaintiff was unable to safely return to his employment
without further evaluation by a physician. Under the express terms
of the ADA, an employer may decide not to accommodate disabled
individuals if they pose a “direct threat to the health or safety”
of themselves or others.

29 C.F.R. § 1630.15(b)(2). A “direct

threat” involves “a significant risk of substantial harm to the
health

or

safety

of

the

[person]

or

others

that

eliminated or reduced by reasonable accommodation.”
1630.2(r).

10

cannot

be

29 C.F.R. §

The ADA regulations further provide that
[t]he determination that an individual poses a ‘direct
threat’ shall be based on an individualized assessment of
the individual's present ability to safely perform the
essential functions of the job. This assessment shall be
based on a reasonable medical judgment that relies on the
most current medical knowledge and/or on the best
available objective evidence. In determining whether an
individual would pose a direct threat, the factors to be
considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur;
and
(4) The imminence of the potential harm.
Id.
In

evaluating

these

factors,

“the

fact-finder

does

not

independently assess whether it believes that the employee posed a
direct threat, but determine[s] [instead] whether the employer's
decision

was

objectively

reasonable.”

E.E.O.C.

v.

Beverage

Distributors Co., LLC, 780 F.3d 1018, 1021 (10th Cir. 2015) quoting
Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007).
Plaintiff had suffered from the seizures which resulted in his
preclusion from returning to work for twenty years.
Defendant

for

seven

years

in

various

jobs

He worked for

with

increasing

responsibility and suffered seizures on the job throughout his
employment. Nothing in the nature or severity of the seizure which
occurred on February 11, 2013 should have altered Plaintiff’s
perceived ability to safely perform his work that he had performed
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safely for seven years. Undoubtedly, some level of risk existed at
all times during Plaintiff’s employment but the evidence also
indicates Plaintiff never suffered a seizure without warning and
did not lose consciousness or awareness during the seizures.

This

fact distinguishes this case from that of Mayes v. Whitlock
Packaging Corp., Case No. CIV-09-278-JHP cited by Defendant where
the employee’s seizures were unpredictable and violent and posed a
significant proven harm to other employees.
However, several factual issues exist which precludes summary
judgment for Defendant under the required “direct threat” rubric
including (1) whether Defendant was based upon a “reasonable
medical

judgment”

evidence.

considering

the

dearth

of

its

own

medical

It must be remembered that the assertion of a “direct

threat” constitutes an affirmative defense for which Defendant
carries the burden of proof; (2) the objective reasonableness of
the evidence of “the likelihood that the potential harm will occur”
given that seven years of employment history failed to indicate
harm arising from Plaintiff’s condition; and (3) the “imminence of
the potential harm” for the same reason.

Issues of disputed

material facts exists as to whether Defendant could have reasonably
accommodated Plaintiff’s condition by continuing to allow FMLA
leave for recuperation and/or transferring him to a different
position.

Consequently, Defendant is not entitled to summary

judgment on Plaintiff’s ADA claim.

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Defendant also seeks summary judgment on Plaintiff’s FMLA
interference and retaliation claims.

In order to prevail on the

interference claim, Plaintiff must show (1) that he was entitled to
FMLA leave; (2) that some adverse action by Defendant interfered
with his right to take FMLA leave; and (3) that Defendant’s action
was related to the exercise or attempted exercise of his FMLA
rights.

Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287

(10th Cir. 2007).

Defendant challenges whether Plaintiff can

satisfy the second and third elements of the claim.

Plaintiff was

prevented from exercising his FMLA leave rights by not being
permitted to return to work when his leave for recuperation ended.
Id.
In

accordance

Campbell,

after

with

the

Plaintiff

Tenth

Circuit’s

satisfied

the

pronouncement

first

two

in

elements,

Defendant
bears the burden of proving that an employee, laid off
during FMLA leave, would have been dismissed regardless
of the employee's request for, or taking of, FMLA leave.
Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955,
963 (10th Cir. 2002) (citing 29 C.F.R. § 825.216(a)(1)).
However, we have held that ‘an employee who requests FMLA
leave would have no greater protection against his or her
employment being terminated for reasons not related to
his or her FMLA request than he or she did before
submitting the request.’ Gunnell v. Utah Valley State
Coll., 152 F.3d 1253, 1262 (10th Cir. 1998).
Campbell, 478 F.3d at 1289.
Defendant has sufficiently shown that its prohibition for
Plaintiff to return to work was not related to his exercise of FMLA

13

leave but rather its evaluation of a “direct threat” posed by
Plaintiff’s
violated

condition.

the

While

noticing

Defendant

requirements

may

required

have
by

technically

the

FMLA

in

requiring a fitness for duty certification, this requirement did
not lead to an interference in Plaintiff’s exercise of his rights
under the FMLA.
Campbell also conveniently sets forth the requirements for an
FMLA retaliation claim.

In order to prevail, Plaintiff must show

that: “(1) []he engaged in a protected activity; (2) [Defendant]
took

an

action

that

a

reasonable

employee

would

have

found

materially adverse; and (3) there exists a causal connection
between the protected activity and the adverse action.”

Campbell,

478 F.3d at 1287 quoting Metzler v. Fed. Home Loan Bank of Topeka,
464

F.3d

1164,

1171

(10th

Cir.

2006).

The

Tenth

Circuit

“characterized the showing required to satisfy the third prong
under a retaliation theory to be a showing of bad intent or
‘retaliatory motive’ on the part of the employer.”

Metzler, 464

F.3d at 1171 (quotation omitted).
The record is devoid of any evidence of retaliatory motive on
Defendant’s part based upon Plaintiff’s exercise of his FMLA
rights.

To the contrary, it appears Defendant was motivated

exclusively by Plaintiff’s condition and job performance.

As a

result, Defendant is entitled to summary judgment on all FMLA
claims asserted by Plaintiff in this action.

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IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment (Docket Entry #70) is hereby GRANTED on Plaintiff’s claims
based in the Family Medical Leave Act.
DISMISSED.

These claims are

hereby

Summary judgment, however, is DENIED on Plaintiff’s

claim based upon a violation of the Americans with Disabilities Act
due to the presence of a dispute in the material facts of the
claim.
IT IS FURTHER ORDERED that the parties are permitted until
JANUARY 26, 2016 by which to submit a proposed, agreed pretrial
order in this case which reflects the ruling herein.
IT IS SO ORDERED this 22nd

day of January, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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