Keen v. Sanderson Farms, Inc. et al

Filing 52

OPINION AND ORDER granting 29 Motion for Summary Judgment; granting 30 Motion for Summary Judgment. Defendants' Motions for Summary Judgment are GRANTED and Plaintiff's Complaint is DISMISSED. (Signed by Judge Melinda Harmon) Parties notified.(htippen, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIAM M. FOSTER,
Plaintiff,
VS.
SANDERSON FARMS, INC., et al,
Defendants.

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CIVIL ACTION NO. 4:11-CV-17

OPINION AND ORDER

Pending before the Court are motions for summary judgment by Sanderson Farms, Inc.,
and Eric Erickson (“Defendants”) against the claim of retaliatory discharge under the Family and
Medical Leave Act1 made by Clarence Scott Keen2 (“Plaintiff”). Docs. 29, 30. Plaintiff filed a
response (Doc. 38) and Defendant Sanderson Farms filed a reply (Doc. 44). Having considered
the Parties’ arguments, the facts of the case, and the applicable law, the Court concludes that the
motions should be granted.
I. Background
From 2002 until his termination on December 5, 2008, Plaintiff Keen worked for
Defendant Sanderson Farms as the maintenance manager of its poultry processing plant at the
Bryan, Texas, processing division. Keen Decl. ¶¶ 1-2, Doc. 38-1. During that entire period, he
reported directly to Defendant Erickson, his supervisor and the division manager. Keen Decl. ¶
1; Keen Dep. 24:22-25:10, Docs. 43 to 43-2.
In July 2008, Keen informed Erickson that he would need cervical spine surgery and took
a medical leave of absence for that surgery, which took place on July 29. Keen Decl. ¶ 3; Keen

1
2

Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654 (2012).
Substituted by bankruptcy trustee William M. Foster. Order, Jan. 31, 2012, Doc. 25.

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Dep. 64:19-23. The company’s standard thirteen-week leave period, one week longer than that
mandated by the FMLA, began on July 28 and expired on October 28. Morgan Dep. 29:1330:10, 40:11-41:6, Docs. 29-3, 40. Sanderson Farms later extended that expiration date to
November 28, totaling eighteen workweeks. Letter from Erickson to Keen (Nov. 6, 2008), Doc.
29-1 Ex. 9.
Beginning just one week after surgery and continuing until the end of his medical leave,
Keen repeatedly requested to return to work but was denied by Erickson until a full medical
release was obtained. On August 5, 2008, Keen spoke with Erickson via telephone and informed
Erickson of his desire to return to work; on August 18, after an appointment with his physician,
he spoke with Erickson by phone again to say that he was undergoing physical therapy but had a
limited release from his physician to return to work and wanted to do so. Keen Decl. ¶¶ 4, 6;
Keen Dep. 73:2-14. Erickson denied these requests. Erickson Dep. 130:15-132:6, Docs. 29-2,
42-2. According to Erickson, the prerequisite for a return to work was a “complete release” from
Keen’s doctor stating that Keen could “perform all of his duties and responsibilities.” Erickson
Dep. 130:15-131:9. In Keen’s words, Erickson required “a 100% written release from a
physician, in which the physician would accept full responsibility for any post-surgery related
injury [Keen] suffered after returning to work.” Keen Decl. ¶ 6. Keen was unable to provide such
a release but continued to communicate his readiness and desire to return to work, including
during a September 26, 2008, phone call with Erickson, in which he explained that he was
attending physical therapy three days per week but would schedule his appointments to minimize
interference with work. Keen. Decl. ¶¶ 7-8. Erickson, however, maintained his earlier
prerequisite for a return to duty. Keen. Decl. ¶ 8.
Keen had a related discourse with the division’s human resources department. According
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to Keen, on several occasions beginning in October, 2008, he spoke with Rebecca Morgan, a
Sanderson Farms human resources manager, to discuss his recovery from surgery and his desire
to return to work. Keen Decl. ¶¶ 9, 11, 12. Morgan agrees that such conversations took place but
does not believe that Keen told her of his desire to return to work until November. Morgan Dep.
55:8-56:13. She does, however, confirm that in response to Keen’s inquiry, she told him that
other employees on medical leave had been allowed to return to work on a limited basis without
a 100% medical release but did not know why Keen was not allowed to do the same. Keen Decl.
¶¶ 9, 11, 12; Morgan Dep. 60:4-17.
Despite Keen’s expressions of desire to return to work, he did not provide a full medical
release until November 24, 2008. On September 3, Keen wrote that his right leg, arm and hand
were “still not functioning normally and at times [he was] still having a significant amount of
pain.” E-mail from Keen to Erickson (Sept. 3, 2008, 03:35 CST), Doc. 29-1 Ex. 4. As late as
October 16, Keen’s physician certified that he was physically “unable to perform work of any
kind.” DOL Form WH-380, Certification of Health Care Provider, Ibrahim El Nihum, M.D.
(Oct. 16, 2008), Doc. 29-1 Ex.8. Erickson continued to tell Keen that he could not return to work
for his own safety and well-being. Erickson Dep. 182:13-23; Letter from Keen to Erickson (Nov.
14, 2008), Doc. 29-1 Ex. 10. On November 19, Keen delivered to Morgan a physician’s letter
stating that “[h]e is still at this present time being treated,” “is currently attending physical
therapy,” and “will return to work full time and will return doing his normal requirements,” but
not specifying a return date. Keen Decl. ¶ 15; Letter from Ibrahim El Nihum, M.D., Coll. Station
Neurosurgery (Nov. 17, 2008), Doc. 29-1 Ex. 12. Morgan spoke with Erickson and relayed a
message to Keen that he could not immediately return to work but would be notified when he
could. Keen Decl. ¶ 15. On November 24, Keen had another appointment with his physician;
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after that appointment, he phoned Erickson to say that he had obtained the necessary paperwork.
Keen Dep. 91:16-92:2. Consequently, Erickson allowed Keen to return to work the following
day, November 25, 2008. Keen Decl. ¶ 16; Keen Dep. 92:3-6.
Also on November 24, Erickson was made aware of photos posted on the internet of a
hunting trip Keen had taken on November 9. Erickson Dep. 228:18-229:13. Then, on December
2, Erickson received paperwork from the physician’s office (via Morgan) stating that Keen had
been authorized to return to work on November 3. Erickson Dep. 199:15-200:16. Later on
December 2, Keen was called into a meeting in Erickson’s office with Erickson and Charles
Noble, the processing manager for Sanderson Farms, and was told that there was a problem with
his FMLA paperwork, specifically that it said he had been released to return to work as early as
November 3. Keen Decl. ¶ 17; Erickson Dep. 205:9-14; Noble Dep. 57:6-18, Doc. 29-4. Keen
answered that the date was erroneous. Keen Decl. ¶ 17. Noble then raised the issue of Keen’s
hunting trip, which he had taken after the expiration of his statutory FMLA leave and while he
continued to receive regular pay on extended company medical leave. Keen Decl. ¶ 17; Keen
Dep. 98:12-104-3; Erickson Dep. 240:21-241:6; Noble Dep. 57:22-59:20; Morgan Dep. 69:1923. According to Erickson and Noble, Keen was nonresponsive and did not admit going on the
hunting trip until they showed him photographs of the trip as proof, Erickson Dep. 242:6-22;
Noble Dep. 57:22-59:2. According to Keen, however, he was not evasive and did not deny that
he had gone hunting, Keen Decl. ¶ 17.
After the meeting Keen went to his physician’s office to obtain another copy of the
medical release with corrected information. Keen Decl. ¶ 18. On December 3, Keen delivered
that document to Erickson with a new release date of November 24, explaining that the original
entry of November 3 was a “clinical release” date, not a date for returning to work. Keen Decl. ¶
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18. Erickson contacted the physician’s office independently, and a medical assistant told him that
the November 3 date on the paperwork was indeed a mistake—that it was not a release date at
all. Erickson Dep. 239:3-8. Erickson also asked the medical assistant if Keen had, however, been
authorized to participate in deer hunting; she replied, “That’s a good question. I don’t know.”
Erickson Dep. 201:20-202-15.
On December 5, Keen was called into a meeting with Erickson and Morgan, and
Erickson told him that it would be his last day because he had failed to comply with the
conditions of FMLA leave. Keen Decl. ¶ 19. The decision to terminate Keen was made by
Erickson, in consultation with the Sanderson Farms corporate office through the division’s
human resources department. Erickson Dep. 9:4-14.
On November 24, 2010, Plaintiff commenced a civil action against Defendants in Texas
state court, and on January 4, 2011, Defendants removed the action to this Court. Notice of
Removal, Doc. 1.
II. Legal Standard
Summary judgment is proper 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. Civ. P. 56(a). The substantive law
governing the claims determines the elements essential to the outcome of the case and thus
determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute over such a fact is genuine if the evidence presents an issue “that properly can be
resolved only by a finder of fact because [it] may reasonably be resolved in favor of either
party.” Id. at 250.
The moving party bears the burden of identifying evidence that no genuine issue of
material fact exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the court must view
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the evidence and all reasonable inferences in the light most favorable to the nonmoving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Where the
nonmovant bears the burden of proof at trial, the movant need only point to the absence of
evidence supporting an essential element of the nonmovant’s case; the movant does not have to
support its motion with evidence negating the case. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). If the movant succeeds, the nonmovant can defeat the motion for summary
judgment only by identifying specific evidence of a genuine issue of material fact, Anderson, 477
U.S. at 248-49, but that evidence need not be in a form that would be admissible at trial, Celotex,
477 U.S. at 324.
III. Analysis
“[W]hen direct evidence of discrimination is lacking, the McDonnell Douglas
organizational framework applies to claims that an employee was penalized for exercising rights
guaranteed by the FMLA.” Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). This framework involves a
three-step burden-shifting scheme. Id. In cases alleging discharge in retaliation for taking FMLA
leave, the first step requires the plaintiff to establish a prima facie case by showing (a) his leave
was protected by the FMLA; (b) the employer discharged him; and (c) the employer’s decision
was made because he took FMLA leave. Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757,
768 (5th Cir. 2001) (citing Chaffin, 179 F.3d at 319). If the plaintiff satisfies these requirements,
the second step shifts the burden to the employer to articulate a legitimate non-retaliatory reason
for the plaintiff’s termination. Chaffin, 179 F.3d at 319. If the employer meets its burden of
production, the third step requires the plaintiff to “show by a preponderance of the evidence” that
the employer’s proffered explanation is merely pretext for its true reason: retaliation. Hunt, 277
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F.3d at 768 (citing Chaffin, 179 F.3d at 319). To satisfy the third step at the summary judgment
stage, the plaintiff need only produce evidence creating an issue of fact regarding either the
employer’s retaliatory animus or the falsity of the employer’s non-retaliatory explanation. See
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).
Defendants assume for the purposes of summary judgment that Plaintiff satisfies the
requirements of the first step under McDonnell Douglas and establishes a prima facie case: (a) he
took FMLA leave due to a serious health condition; (b) Defendants terminated his employment;
and (c) his termination occurred shortly after his FMLA leave. Mot. 15; see also Washburn v.
Harvey, 504 F.3d 505, 511 (5th Cir. 2007) (concluding that temporal proximity of protected
action and adverse employment decision is sufficient to establish causation element of prima
facie case). The burden then shifts to Defendants to articulate a legitimate non-retaliatory reason
for this termination.
Defendants state their reason as a loss of confidence in Plaintiff. Mot. 16. The
circumstances Defendants cite for this loss of confidence include the conflicting medical releases
that Plaintiff presented, the hunting trip he took while still on paid medical leave, and Erickson’s
perception that Keen was not honest or forthcoming about his hunting trip. Mot. 16. It is
axiomatic that supervisors expect honesty and candor from their subordinates, and a lack of such
qualities provides legitimate justification for an adverse employment action. See Wilson v. Noble
Drilling Servs., Inc., 405 F. App’x 909, 914 (5th Cir. 2010) (recognizing “loss of confidence” as
a legitimate nondiscriminatory reason for termination); see also Robert E. Kelley, In Praise of
Followers, Harv. Bus. Rev., Nov.-Dec. 1988 (stating that essential qualities of an effective
subordinate include honesty, credibility, and candor with one’s supervisors). Therefore, the
Court finds that Defendants have satisfied their burden of production under step two.
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Under step three, the burden shifts back to Plaintiff to create a genuine issue of material
fact whether Defendants’ explanation is mere pretext. “[A] plaintiff's prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully engaged in retaliation.” McArdle v. Dell
Products, L.P., 293 F. App’x 331, 339 (5th Cir. 2008) (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000)). Thus, the crucial question is whether Plaintiff has
presented sufficient evidence to create a jury issue regarding the falsity of Defendants’
explanation. The Court finds that he has not.
In reaching this conclusion, the Court begins by examining the evidentiary requirement
for the permissive inference quoted above—“sufficient evidence to find that the employer’s
asserted justification is false”—and determining what “sufficient” means (and does not mean) in
this context. In essence, Plaintiff must show that Defendants’ termination decision was not
rationally justified by the facts as they believed them to be. See Bauer v. Albemarle Corp., 169
F.3d 962, 967 (5th Cir. 1999) (finding that employer’s belief “does not have to be proven to be
correct in order for [it] to be a legitimate, non-discriminatory reason . . . so long as the belief is
reasonable, not arbitrary”); see also Woodson v. Scott & White Mem’l Hosp., 255 F. App’x 17,
20 (5th Cir. 2007) (quoting Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.1995))
(“In a retaliation case, ‘even an incorrect belief . . . constitutes a legitimate, nondiscriminatory
reason for making an employment decision.’”). On the other hand, it is insufficient only to
adduce evidence that Defendants were merely wrong.
Next the Court applies this standard to the facts cited by Defendants as justifying their
termination decision. As stated above, Defendants list three reasons for their loss of confidence
in Plaintiff: (1) the conflicting medical releases; (2) his hunting trip; and (3) his reticence with
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regard to the hunting trip. Each is examined in turn.
First, Defendants cite their receipt of three conflicting medical releases. Mot. 4. One
document, dated November 17, 2008, states that Plaintiff “is still at this present time being
treated” and “attending physical therapy” but “will return to work full time and will return doing
his normal requirements as described in his position description.” Letter from El Nihum (Nov.
17, 2008). The second document, dated December 2, 2008, lists Plaintiff’s “return to regular duty
(no restrictions)” date as November 3. Erickson Dep. 199:15-200:7; Fax from Kristy, Med.
Assistant, Coll. Station Neurosurgery, to Sanderson Farms (Dec. 2, 2008), Doc. 29-1 Ex. 13. The
third, dated December 3, 2008, lists Plaintiff’s “return to regular duty (no restrictions)” date as
November 24. Form from Kristy, Med. Assistant, Coll. Station Neurosurgery (Dec. 3, 2008),
Doc. 29-1 Ex. 18. Plaintiff does not deny these discrepancies but argues that they do not provide
a rational justification for Defendants’ loss of confidence because the discrepancies were
accounted for: the medical assistant who filled out the second and third documents said that she
had made a mistake. Pl.’s Resp. 11 (citing Erickson Dep. 239:3-8). But the difference between
not having conflicting paperwork and having conflicting paperwork with an explanation is that
the latter requires acceptance and belief of the explanation to negate any suspicion that has been
aroused. Clearly, Defendants were not satisfied with the explanation they received, and such
dissatisfaction is better understood when the conflicting paperwork is viewed in the proper
context.
That context is provided by the second reason cited by Defendants: Plaintiff’s deer
hunting trip on November 9 while still on paid medical leave and before providing a medical
release. Mot. 4. Of course, what multiplies the significance of this trip is that it was not learned
of through communications from Plaintiff but rather discovered through photos posted on the
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internet. E-mail from Merinda Thompson to George Jones Sr. (Nov. 19, 2008, 02:43 PM), Doc.
29-1 Ex. 14; E-mail from Thompson to Jones Sr. (Nov. 19, 2008, 02:33 PM), Doc. 29-1 Ex. 15;
Erickson Dep. 206:19-211:10. At the time that the emails containing the photos were exchanged
at Defendants’ corporate headquarters, the most recent medical paperwork that Plaintiff had
provided stated that he was physically “unable to perform work of any kind.” DOL Form WH380, Certification of Health Care Provider, El Nihum (Oct. 16, 2008). By the time Erickson
received the photos, Erickson Dep. 228:18-229:12, the three most recent medical updates he had
received were (1) the October 16 form stating that Keen was unable to perform any work, (2) the
November 17 letter stating that he was still undergoing treatment but would be able to return to
duty at an unspecified date, and (3) the November 24 phone call from Keen saying that he had
just obtained a medical release from his physician. Given this sequence of events, it is hardly
surprising that news of Plaintiff’s November 9 hunting trip aroused in Defendants a sense of
suspicion and distrust.
And this, in turn, led to the third reason offered by Defendants: Plaintiff’s behavior
during the meeting in which they confronted him about the hunting trip. Defendants’ claim is
that initially Plaintiff was not “honest or forthcoming” when asked about his trip. Mot. 4.
Plaintiff remembers the conversation differently, recalling that he was neither dishonest nor
evasive. See Keen Dep. 93:21-94:5. Though the specific facts of this conversation are disputed—
and therefore inappropriate for support of a motion summary for judgment—two related facts are
not. Indeed, these two facts are confirmed by either version of the events: first, it is clear that
Plaintiff did not inform Defendants of the hunting trip prior to this conversation; second,
Defendants came to know of the trip only through discovering photographs posted online. These
undisputed facts are material because of their natural consequence: Defendants’ loss of
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confidence in Plaintiff before the conversation even began (and, therefore, their lack of faith in
his explanations, which renders the factual details of the conversation relatively unimportant).
Perhaps Defendants were too quick to judge Plaintiff; perhaps Plaintiff could have prevented this
by informing Defendants of his plans prior to taking the trip. But as unfortunate as this
circumstance may be, it is not the role of the Court to determine whether Defendants or Plaintiff
could have better handled the situation—it is only to determine whether Defendants’ decision
had a rational justification.
Moreover, examination of the justifications articulated by Defendants requires not a
narrow view of those specific facts in isolation but a broad view of the circumstances as a whole:
Whether judgment as a matter of law is appropriate in any particular case will
depend on a number of factors. Those include the strength of the plaintiff’s prima
facie case, the probative value of the proof that the employer’s explanation is
false, and any other evidence that supports the employer’s case and that properly
may be considered on a motion for judgment as a matter of law.
Reeves, 530 U.S. at 148-49. In this case, Plaintiff’s prima facie case is based on the temporal
proximity of his termination to his taking of FMLA leave, and the only additional proof he offers
is that of allegedly disparate treatment.
Regarding the latter, Plaintiff points out that he was not permitted to return to work on a
limited basis while conducting physical therapy, while other employees on medical leave were.
Pl.’s Resp. 18. But this evidence is relevant only to the extent that it is probative to the issue of
retaliation. As Plaintiff’s evidence shows, however, the difference in treatment was between him
and other employees who had also exercised rights under the FMLA (and apparently enjoyed
those rights without discrimination or retaliation)—not between him and similarly situated
employees who had not exercised such rights. Keen Dep. 82:18-83:12. This evidence of
“disparate” treatment simply is not probative to the issue of retaliation.
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Regarding the former, it must be noted that the FMLA mandates only twelve weeks of
medical leave per year; it does not require holding an employee’s job open for longer periods. 29
U.S.C. § 2612. Allowing leave extensions and holding an employee’s job open pending his
return is within the discretion of the employer, as is not extending his leave and holding his job
open. In this case, the record shows that Defendants terminated Plaintiff not for his taking FMLA
leave, which had a statutory expiration date of October 19, 2008, but for circumstances that arose
after that date. Furthermore, “although the timing of the decision can establish a prima facie case
of retaliation and is a factor in considering pretext, alone it is insufficient to demonstrate pretext.
Ultimately, [Plaintiff] must demonstrate that, but for filing for FMLA leave, [he] would not have
been terminated.” Harris v. Dallas Indep. Sch. Dist., 435 F. App’x 389, 93 (5th Cir. 2011) (citing
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)).
It is clear, when viewing the totality of the circumstances, that Defendants lost
confidence in Plaintiff upon discovering news of his hunting trip and receiving medical
documents with conflicting information. This loss of confidence is entirely reasonable. Whether
Defendants were correct is another matter, but the issue before the Court is not one of
correctness—it is of retaliatory animus. As long as Defendants’ conclusions are undergirded by a
rational justification, as a matter of law it cannot be proved that they were animated by a
retaliatory motive. Defendants have offered just such a rational justification, and there is
insufficient evidence in the record to rebut it. “[I]n indirect discrimination cases, we do not defer
to [juries] where the credibility of a defendant’s explanation of the discharge is at issue simply
because juries have the exclusive right to judge credibility.” Sandstad, 309 F.3d at 898 (quoting
Futrell v. J.I. Case, 38 F.3d 342 (7th Cir. 1994) (“If the evidence does not amply support a
plaintiff’s claim that the defendant’s explanation is unworthy of credence, judgment as a matter
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of law is entirely appropriate.”)).
If [the employee] intends to show that the explanation is so unreasonable that it
must be pretextual, it is [the employee’s] burden to proffer evidence creating a
fact issue regarding reasonableness. . . . The issue at the pretext stage is whether
[the employer’s] reason, even if incorrect, was the real reason for [the
employee’s] termination.
Id. at 899 (emphasis added). At most, Plaintiff has created a fact issue regarding the correctness
of Defendants’ decision, but not its reasonableness. Therefore, no genuine issue of material fact
exists.
IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendants’ Motions for Summary Judgment are GRANTED and
Plaintiff’s Complaint is DISMISSED.
SIGNED at Houston, Texas, this 16th day of January, 2013.

___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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