Acker v. General Motors LLC et al
Filing
41
Memorandum Opinion and Order granting 30 Motion for Summary Judgment filed by General Motors LLC. The court ORDERS that defendant's motion for summary judgment as to plaintiff's claims and causes of action against defendant be, a nd is hereby, granted; that plaintiff takes nothing on his claims and causes of action against defendant; and that such claims and causes of action be, and are hereby, dismissed with prejudice. (see order for further specifics) (Ordered by Judge John McBryde on 7/1/2016) (mpw)
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THE UNITED STATES DISTRitCT COURT F11 E ')
NORTHERN DISTRICT OF Tf:XAS , . . ..
FORT WORTH DIVISIO~
, JUL - I 2016
LONNY ACKER,
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Plaintiff,
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NO. 4:15-CV-706-A
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GENERAL MOTORS LLC,
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Defendant.
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·---- -----·--- - - - · ·---~-~-.I
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vs.
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CJ 1'1{1\:, U.S. OiS'i!{lCTCOt:IH
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MEMORANDUM OPINION
and
ORDER
Now before the court is the motion for summary judgment
filed in the above-captioned action by defendant, General Motors,
LLC. Plaintiff, Lonny Acker, filed a response and defendant filed
a reply. Having considered all of the parties' filings, the
summary judgment record, and the applicable authorities, the
court concludes that the motion should be granted.
I.
Plaintiff's Complaint
Plaintiff asserts claims for FMLA interference, Americans
with Disabilities Act Amendments Act of 2008
("ADAAA") disability
discrimination/ Texas Commission on Human Rights Act ("TCHRA")
disability discrimination, and retaliation under the FMLA, ADAAA,
and TCHRA, against defendant, and requests punitive damages.
II.
The Summary Judgment Motion
Defendant argues it is entitled to summary judgment
as to all of plaintiff's claims. In summary form, the arguments
of defendant in the motion for summary judgment are as follows:
(1) Plaintiff's FMLA interference claim fails because none
of plaintiff's claims constitute interference with a right under
the FMLA. Furthermore, even if plaintiff has established that he
was denied a substantive right under the FMLA, he was not
prejudiced.
(2) Plaintiff's disability discrimination claims under the
ADAAA and TCHRA fail as a matter of law because, plaintiff has
not established a prima facie case of disability discrimination.
(3) Plaintiff's retaliation claims should fail as a matter
of law because plaintiff has not established a prima facie case
of retaliation.
III.
Undisputed Facts Established by
the Summary Judgment Record
Plaintiff has been employed as an electrician by defendant
since 2000. Doc. 32 at App. 6; Doc. 38 at App. 41. Plaintiff
suffers from acute iron-deficiency anemia and due to that
condition, is at times unable to perform his job. Doc. 32 at App.
2
10-13; Doc. 38 at App. 12. As a part of defendant's policy to
take Family Medical Leave Act
("FMLA") leave, plaintiff is
required to notify defendant that he requests FMLA leave by
calling defendant's absence call-in line and then calling
Sedgwick Claims Management Services, Inc.
("Sedgwick")
1
at what
is referred to as the "benefits and services line." Doc. 32 at
App. 74-75. Sedgwick then makes a recommendation to defendant
regarding the FMLA leave, and defendant may adopt such finding.
Doc. 32 at App. 74-75. Employees are encouraged to notify
defendant that they will be absent or tardy as far in advance as
possible. Doc. 32 at App. 51-58. When advance notice is not
possible, employees are required to call in to report an absence
or tardy at least thirty minutes prior to the start of their
shift. Doc. 32 at App. 51-58.
More specifically, employees calling in under the FMLA are
required to notify defendant's absence call-in line with a
request for leave at least 30 minutes prior to the start of their
shift. Doc. 32 at App. 75. Employees are also required to notify
defendant's benefits and services center of their request for
FMLA leave by the end of their normally scheduled work shift.
1
Plaintiff also named Sedgwick Claims Management Services, Inc. ("Sedgwick") as a defendant
in the above-captioned action. The court previously granted Sedgwick's motion to dismiss all claims
asserted against it by plaintiff.
3
Doc. 32 at App. 75. Plaintiff admits that he is familiar with
this process. Doc. 32 at App. 7-9. A leave request applies to the
day the shift ends. Doc. 32 at 75.
On November 12, 2014, plaintiff made a request for FMLA
leave for leave on November 12, 2014 through November 14, 2014.
Doc. 38 at App. 24. Plaintiff also took FMLA leave on November
22,
2014 and November 23, 2014, and December 6, 2014 through
December 8, 2014. Doc. 32 at 75-76.
On December 9, 2014, defendant was put on unpaid
disciplinary leave for two weeks because his leave for November
12, 2014 through November 14, 2014 was not approved. Doc. 32 at
App. 12, 61; Doc. 38 at App. 85. While plaintiff was on
disciplinary leave, Sedgwick approved plaintiff's November 12,
2014 and November 13, 2014 absences for FMLA leave and defendant
rescinded the disciplinary layoff. Doc. 32 at App. 12, 61; Doc.
38 at App. 85. However, defendant discovered that plaintiff did
not timely call in to request FMLA leave as to his November 14,
2014 absence. Doc. 32 at App. 61-62. Defendant issued a
disciplinary layoff for the November 14, 2014 absence but allowed
the time already served on disciplinary layoff to count as
disciplinary layoff for the absence. Doc. 32 at App. 61-62; Doc.
28 at 37-38.
4
As to plaintiff's November 22, 2014 absence, plaintiff did
not timely call the absence call-in line to report his absence
thirty minutes prior to the start of his shift. Doc. 32 at 66. In
addition, he did not call defendant's benefits and services
center before his shift ended. Doc. 32 at 66. For the November
22, 2014 and November 23, 2014 2 absences, plaintiff was issued an
unpaid two week disciplinary layoff. Doc. 32 at App. 63.
As to plaintiff's December 6, 2014 through December 8, 2014
leave, plaintiff's December 7, 2014 leave was approved. Doc. 32
at 67. Plaintiff's December 6, 2014 and December 8, 2014 leave
were not approved because plaintiff failed to timely contact
defendant's benefits and services center, though he did timely
contact the absence call-in line. Doc. 32 at 67. Defendant did
not discipline plaintiff for his absence on December 6, 2014, and
instead gave him the opportunity to correct his attendance. Doc.
32 at App. 76-77. Plaintiff was given a thirty day unpaid
disciplinary suspension for his absence on December 8, 2014.
Since returning to work from his thirty day unpaid
disciplinary suspension plaintiff has taken over thirty days of
2
It appears that as to plaintiff's November 23, 2014 absence, plaintiff might have timely called
both the absence call-in line and defendant's benefits and services center. Doc. 32 at 66. However,
plaintiff's phone records clearly indicate that he did not timely call either the absence call-in line or
defendant's benefits and services center as to his November 22, 2014 absence. The November 22, 2014
absence is enough to support the disciplinary layoff that plaintiff was issued as to the unapproved leave
under defendant's policy.
5
FMLA leave and called both the absence call-in line and
defendant's benefits and services center to report such leave.
Doc. 32 at App. 16-17.
IV.
Standards Applicable to a Motion for Summary Judgment
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
FED. R. Crv.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986) . The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case. Id. at 324; see also FED. R. CIV. P. 56(c)
asserting that a fact . .
("A party
. is genuinely disputed must support
6
the assertion by . . . citing to particular parts of materials in
the record . .
."). If the evidence identified could not lead a
rational trier of fact to find in favor of the nonmoving party as
to each essential element of the nonmoving party's case, there is
no genuine dispute for trial and summary judgment is appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 597 (1986).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.
Celotex, 477 U.S. at 323.
If the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.
Matsushita,
475 U.S. at 597; see also Boeing Co. v. Shipman, 411 F.2d 365,
374-75 (5th Cir. 1969)
(en bane)
(explaining the standard to be
applied in determining whether the court should enter judgment on
motions for directed verdict or for judgment notwithstanding the
verdict).
v.
Analysis
A.
FMLA Interference
The FMLA entitles employees to up to 12 workweeks of leave
during a year for various reasons including "a serious health
condition that makes the employee unable to perform the functions
7
of the position of such employee." 29 U.S.C. 2612 (a) (1) (D). The
FMLA provides a cause of action to an employee against an
employer for interfering with any right provided by the FMLA. 29
U.S.C.
§§
2615
&
2617(a) (2). To prevail on an interference claim,
an employee must prove that his employer interfered with,
restrained, or denied the exercise of FMLA rights. Ragsdale v.
Wolverine World Wide,
1.
Inc., 535 U.S. 81, 89 (2002).
Defendant's Denial of FMLA Leave Is Not Interference
with Plaintiff's FMLA Rights
It is not entirely clear what conduct plaintiff asserts
interfered with his FMLA rights. It appears that plaintiff
alleges that defendant interfered with his FMLA rights by
wrongfully denying qualifying FMLA leave. Defendant alleges that
on the days plaintiff was denied FMLA leave, plaintiff did not
timely or correctly provide notice of the need to take FMLA leave
in accordance with defendant's policy. The summary judgment
evidence indicates that on the dates plaintiff was denied FMLA
leave, plaintiff either did not call the absence call-in line
and/or defendant's benefits and services center or failed to
report his claim before the deadline required by defendant's FMLA
leave policy.
An employee may be denied leave for failing to abide with an
employer's "usual and customary notice and procedural
8
requirements for requesting leave." 29 C.F.R.
§
825.302(d).
Courts have routinely held that "an employer generally does not
violate the FMLA if it terminates an employee for failing to
comply with a policy of requiring notice of absences, even i f the
absences that the employee failed to report were protected by the
FMLA." Goff v.
Signing River Health Sys., 6 F. Supp. 3d 704, 711
(S.D. Miss. 2014); see also Twigg v. Hawker Beechcraft Corp., 659
F.3d 987, 1008-09 (lOth Cir. 2011). Courts have also routinely
found that the FMLA was not violated when an employee was
required to call in an absence according to the employer's
policy. See Bacon v. Hennepin Cnty. Med. Ctr., 550 F.3d 711, 715
(8th Cir. 2008)
(holding that employers that have call-in
policies are entitled to terminate employees on FMLA leave for
failure to comply with the call-in policy); Bones v. Honeywell
Int•l, Inc., 366 F.3d 869, 878
(lOth Cir. 2004)
(holding that
employee cannot maintain FMLA interference claim based on her own
failure to comply with her employer's call-in policy); Lewis v.
Holsum of Fort Wayne, Inc., 278 F.3d 706, 710
(7th Cir. 2002)
(holding that an employer could discharge an employee on FMLA
leave for failing to comply with the employer's call-in policy).
Plaintiff appears to suggest that defendant's requirements
for
r~questing
leave are outside of the scope of what is allowed
under the FMLA. However, plaintiff concedes that 29 C.F.R.
9
§
825.303(c) includes as an example, that an employer may require
an employee to call a designated number to request FMLA leave.
Doc. 37 at 14. Requiring plaintiff to notify defendant of his
request to take FMLA leave at two phone numbers does not seem
outside the scope of allowable requirements for requesting FMLA
leave. Neither does the requirement that plaintiff give such
notification of his need to take FMLA leave within 30 minutes
prior to the start of his shift. See Cundiff v. Lenawee Stamping
Corp., 597 F. App'x 299 (6th Cir. 2015)
(affirming the district
court's grant of summary judgment for defendant on plaintiff's
FMLA claim when plaintiff failed to call in at least 30 minutes
prior to the start of his shift);
(Martinez v. Harley-Davidson,
Inc., No. 10-C-1081, 2012 WL 3881615 (E.D. Wis. Sept. 6, 2012)
(granting summary judgment to defendant for disciplining
plaintiff for failing to call in FMLA absences prior to 30
minutes before his shift started) . In addition, the fact that
plaintiff was unable to talk with a "live person" and was
confused by the menu selection options of the call-in number, do
not justify his non-compliance with defendant's requirements for
notice of FMLA leave.
2.
FMLA Unusual Circumstances
Plaintiff claims that defendant interfered with his FMLA
rights for failing to recognize his claims as "unusual
10
circumstances" which would allow him to report his request for
leave after the deadline set forth in defendant's policy. 29
C.F.R.
§
825.302(d).
Plaintiff has adduced no evidence to support the conclusion
that on the dates in which he did not notify defendant of his
request for FMLA leave until after the deadline, unusual
circumstances existed. Plaintiff claims that at times his
condition subjects him to fatigue, dizziness, and disorientation,
but, without more information, this is not enough to support the
conclusion that defendant violated his FMLA rights by denying him
FMLA leave when he was not in compliance with defendant's FMLA
leave notification policy. In addition, on some of the dates in
question, plaintiff was denied leave because he failed to call
defendant's services and benefits center, but, he timely called
the absence call-in line. Thus, at least as to these dates, an
argument that his condition prevented him from timely notifying
defendant is completely contradicted by his own call ins to the
absence call-in line.
B.
ADAAA and TCHRA Disability Discrimination
The ADAAA prohibits discrimination in employment against a
qualified individual on the basis of his disability. 42 U.S.C.
12112(a). The ADAAA and TCHRA both prohibit disability
discrimination and "Texas courts look to analogous federal
11
§
precedent for guidance when interpreting the [TCHRA] ."Rodriquez
v. ConAgra Grocery Prods. Co., 436 F.3d 468, 473-74 (5th Cir.
2006)
(quotations omitted). Thus, federal courts look to federal
precedent in decisions on the ADAAA in interpreting the TCHRA.
Id. Since plaintiff has adduced only circumstantial evidence to
prove his disability discrimination claim under the ADAAA and
TCHRA claims, the McDonnell Douglas 3 burden-shifting framework
applies and to prevail on these claims, plaintiff must prove:
he has a disability,
(1)
(2) he is qualified for the job, and (3)
defendant made an adverse employment decision because of
plaintiff's disability. Neely v. PSEG Texas, Ltd. P'ship, 735
F.3d 242, 245 (5th Cir. 2013).
Both parties agree that plaintiff has a disability and is
qualified for his job. Plaintiff claims that he requested a
reasonable accommodation for his disability under the ADAAA/TCHRA
in the form of FMLA leave and was denied. Doc. 37 at 25.
Defendant alleges plaintiff made no such request. Doc. 40 at 10.
Plaintiff argues that his request did not have to specify that he
was seeking an accommodation for a disability. Doc. 37 at 25.
"An employee who needs an accommodation because of a
disability has the responsibility of informing [his] employer."
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
12
Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224
2011)
(quoting
(5th Cir.
E.E.O.C. v. Chevron Phillips Chern. Co., L.P., 570
F.3d 606, 621 (5th Cir. 2009)). As plaintiff argues, it is true
that an employee need not use the phrase "reasonable
accommodation" to seek an accommodation under the ADAAA. Chevron
Phillips, 570 F.3d at 621. "Plain English will suffice," for such
a request. Id. However, a request for FMLA leave is not a request
for a reasonable accommodation under the ADAAA. See Harville v.
Texas A&M Univ., 833 F. Supp. 2d 645, 661 (S.D. Tex. 2011)
("FMLA
leave is not a reasonable accommodation under the ADA; rather it
is a right enforceable under a separate statutory provision.")
(quoting Trevino v. United Parcel Serv., No. 3:08-CV-889-B, 2009
WL 3423039, at *12
(N.D. Tex. Oct. 23, 2009)
Pfizer Corp., 261 F.3d 90
1
(citing Navarro v.
101 (1st Cir. 2001))). The ADAAA/TCHRA
and FMLA clearly serve different purposes.
Because plaintiff has adduced no evidence to show that he
requested an accommodation under the ADAAA/TCHRA, plaintiff has
not proved a prima facie case of discrimination and this claim
must fail.
c.
Retaliation
1.
Retaliation under the FMLA
The FMLA prohibits retaliation by an employer based on an
employees use of FMLA leave. 29 U.S.C.
13
§
2615(a) (1). Retaliation
claims under the FMLA are analyzed using the McDonnell Douglas
burden-shifting framework. Wheat v. Florida Par. Juvenile Justice
Comm'n, 811 F.3d 702, 705 (5th Cir. 2016)
H. Carter Co., 179 F.3d 316, 319
(citing Chaffin v. John
(5th Cir. 1999)). This framework
requires the employee to prove a prima facie case of retaliation,
by establishing:
(1) he was protected under the FMLA,
(2) the
employer took a materially adverse action against him, and (3)
the adverse action was taken because he sought protection under
the FMLA. Ion v. Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir.
2013)
(citing Mauder v. Metro Transit. Auth. of Harris Cnty.,
Tex., 446 F.3d 574, 583
(5th Cir. 2006)).
For the reasons discussed above, it is clear that defendant
can require plaintiff to notify it of a request for FMLA leave in
accordance with defendant's policy. Thus, plaintiff can base no
claims for retaliation on the denial of FMLA leave requests
because of his non-compliance with defendant's FMLA leave policy.
See Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F. App'x 312, 317
(5th Cir. 2013).
To the extent plaintiff's retaliation claim relates to
defendant's request that plaintiff recertify his disability for
the purpose of FMLA leave, an employer is allowed to request
recertification when an employee incurs an absence and the
circumstances described by a previous certification have changed
14
significantly. 29 C.F.R.
§
825.308. Plaintiff was asked to submit
a recertification because the frequency and duration for leave
set forth by his physician in the previous certification had
changed. Doc. 32 at App. 75.
Furthermore, plaintiff is still employed by defendant and
has taken more than thirty days of FMLA leave since his last
disciplinary layoff. Doc. 32 at App. 15-17. He has not been
subjected to further discipline, because he has complied with
defendant's call-in procedure. Doc. 32 at App. 15-17. In
addition, defendant did not terminate defendant but instead gave
him the opportunity to correct his attendance. Doc. 32 at App.
76-77. Thus, plaintiff has not proved a prima facie case of
retaliation under the FMLA.
2.
Retaliation under the ADAAA/TCHRA
The ADAAA prohibits retaliation against an employee who has
engaged in a protected activity under the ADAAA. 42 U.S.C.
§
12203. The McDonnell Douglas balancing framework is also applied
to ADAAA retaliation claims and plaintiff must show:
(1) he
participated in an activity protected under the ADAAA,
(2) his
employer took an adverse action against him, and (3) a causal
connection exists between the protected activity and the adverse
action. Feist v. Louisiana, Dept. of Justice, Office of Atty.
Gen., 730 F.3d 450, 454
(5th Cir. 2013). As stated above, the
15
court looks to ADAAA decisions to determine the standards for the
TCHRA. Rodriguez, 436 F.3d at 473-74.
As argued by plaintiff,
"[i)t is undisputed that making a
request for a reasonable accommodation under the ADAAA may
constitute engaging in a protected activity." Tabatchnik v.
Cont'l Airlines, 262 F. App'x 674, 676
(5th Cir. 2008). However,
as established above, plaintiff has not adduced evidence to prove
that he made such a request. Thus, plaintiff has not proved a
prima facie case of retaliation under the ADAAA or TCHRA.
D.
Punitive Damages
Because the court has granted summary judgment as to all of
plaintiff's claims, there is nothing on which to base plaintiff's
claim for punitive or other damages.
VI.
Order
Therefore, for the reasons given above,
The court ORDERS that defendant's motion for summary
judgment as to plaintiff's claims and causes of action against
defendant be, and is hereby, granted; that plaintiff takes
nothing on his claims and causes of action against defendant; and
16
that such claims and causes of action be, and are hereby,
dismissed with prejudice.
SIGNED July 1, 2016.
District Jud
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