Anderson v. Shade Tree Servs., Co., Case No. 4:12CV01066 ERW
| Decision Date | 26 July 2013 |
| Docket Number | Case No. 4:12CV01066 ERW |
| Parties | BRUCE ANDERSON, Plaintiff, v. SHADE TREE SERVICES, CO., and JEFFERY BISHOP, Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter comes before the Court upon Defendants Shade Tree Services, Co., and Jeffrey Bishop's ("Defendants") Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. [ECF No. 33]. The matter has been fully briefed, and for the reasons that follow, the Court will grant, in part, and deny, in part, Defendants' Motion.
Defendant Shade Tree Services Company ("Shade Tree") contracts with electrical utility companies throughout the Midwest to trim and clear trees and other vegetation away from electrical lines. [ECF Nos. 35, 42, at ¶ 1]. From February 14, 2005, through October 31, 2011, Plaintiff Bruce Anderson ("Plaintiff") worked on, or supervised crews of ground workers and treetrimers for Shade Tree. Id. at ¶¶ 2-3. Plaintiff was initially hired as a union crew foreman and joined IBEW Local 2, the exclusive bargaining representative for Shade Tree's Foremen, Trimmers, and Brushcutters in the Missouri districts where Plaintiff worked. Id. at ¶4. After a little more than a year, in July 2006, Shade Tree promoted Plaintiff to the position of Supervisorin its Capital District.1 [ECF Nos. 35, 42, at at ¶5]. Except for one client in another part of the state, Shade Tree's only customer in Missouri was Ameren Union Electric Company d/b/a Ameren Missouri ("Ameren"). Id. at ¶ 7. Ameren required that Shade Tree submit personnel time sheets for Shade Tree employees. Id. at ¶ 9. For the last two years that Anderson has held the role of Capital District Supervisor, his Ameren supervising forester was Alisha Bewley-Davis. Id. at ¶3. The parties dispute whether Plaintiff found Davis to be pickier and more inexperienced than other foresters, resulting in conflict between them. Id. at ¶¶15, 16. Plaintiff admits that Shade Tree received complaints about his job performance. Id. at ¶17. Plaintiff acknowledges the content of the following documents:2 (1) January 10, 2011 - Davis complained to her supervisor at Ameren, Thomas Beerman, (2) January 10, 2011 - Davis wrote to Plaintiff complaining that he had not yet turned in his timesheet for the week ending January 1, 2011 and implored, "Please make sure you are getting me a copy of your timesheet every week; I'm tired of asking;" (3) March 16, 2011 - Davis wrote to Plaintiff, (4) May 3, 2011 - Davis wrote to Plaintiff at 6:34 a.m., requesting his line miles and crew list and said, Plaintiff replied at 7:15 a.m., stating that he "had some difficulty with outlook last night;" (5) May 3, 2011 - After Plaintiff did not submit his line miles until more than three hours later, Davis writes, "I am not happy about this being turned in so late." Plaintiff replied with an excuse about the "large amount of work" he had; and (6) August 7, 2011 - Davis wrote to Plaintiff, "I don't think you turned in July Audits or W/E 7/30/11 timesheets to me on Friday like you said you would." Id. at ¶18 (a) - (f). Thomas Beerman, Ameren's managing supervisor of vegetation management [ECF No. 35-4, at 2], who had ultimate responsibility for overseeing Shade Tree's contract in much of Missouri, estimates that between January 2011 and September 2011, Davis escalated to his attention "more than ten" additional complaints specifically about Plaintiff.3 [ECF Nos. 35, 42, at ¶ 19].
Defendant Jeff Bishop ("Bishop") was Plaintiff's direct supervisor at Shade Tree until September 2, 2011 when Plaintiff was demoted. [ECF No. 4, at ¶ 8]. During Plaintiff's time as a Supervisor, Bishop also counseled him about his ineffective communication. [ECF Nos. 35, 42, at¶ 20]. As early as December 2009, Bishop began telling Plaintiff that he needed to improve his communication. Id. at ¶ 21. It is undisputed that Plaintiff was not given a formal warning regarding alleged performance problems, nor did his personnel file contain write-ups or disciplinary documents. [ECF Nos. 41, 46, at ¶¶ 53-55].4
In September of 2009, Plaintiff injured his back in an on-the-job accident and was treated and prescribed pain medication by his physician. [ECF Nos. 41, 46, at ¶ 8].5 In mid-June 2011, Plaintiff aggravated his back injury by lifting jugs into his truck. [ECF Nos 41, 46, at ¶ 25]. On Monday, June 20, 2011, Plaintiff emailed Bishop, his immediate supervisor, and Davis, his supervising Ameren forester, to tell them that he was going on a medical leave of absence for at least two weeks. [ECF Nos. 35, 42, at ¶¶ 23 - 24]. In that email, he explained that he was having emergency surgery "due to a herniation." Id. at ¶ 25. Davis replied later that evening, saying simply, Id. at ¶ 26. Bishop approved the requested time off, but objected to the lack of any advance notice, writing: "Don't mind the absence just the lack of communication." Id. at ¶ 28. Plaintiff further explained that he had hurt his back badly lifting chemicals out of his truck and that he had already gone to the hospital. Id. at ¶ 29. Bishop then emailed Plaintiff, stating that he would need to submit a workers' compensation report for the incident and that Bishop was "more worried about the deception." Id. at ¶ 30. Plaintiff assured him that no worker's compensation report was necessary because he had hurt himself at home after work. Id. at ¶¶ 30, 31.6 However, Plaintiff later testified at his deposition that he had lied in his email- the truth was that he had actually hurt himself at work.7 [ECF Nos. 35, 42, at ¶ 32]. In response toPlaintiff's June 20, 2011 email regarding his need for leave, Bishop replied that he had "concerns with current communication." Id. at ¶ 33. Plaintiff did not have emergency back surgery on or around June 20, 2011. Id. at ¶ 34. Instead, at the direction and recommendation of his doctors, he checked into an inpatient drug treatment program at the Boonville Rehab Center because of an addiction to the opiate painkiller, Vicodin, which he had been taking since 2009.8 [ECF Nos. 35, 42, at ¶ 35; 41, 46, at ¶¶ 27-30].
According to Plaintiff, his Vicodin addiction did not adversely affect his personal life or his work. [ECF Nos. 35, 42, at ¶ 36]. Instead, he chose to go to "detox" at the recommendation of his surgeon as a necessary precursor to back surgery. Id. at ¶ 37. On the next morning, June 21, 2011, after sending his email indicating he needed leave for surgery, Plaintiff telephoned Bishop to explain his new treatment plan. Id. at ¶39. He participated in a treatment program for eight days, and then checked himself out. Id. at ¶¶ 42-43. His Discharge Summary from the rehabilitation clinic states that Plaintiff's "participation in the treatment program was erratic," and that "his prognosis is poor." Id. at ¶ 44. The medical staff wanted him to stay longer.9 [ECF Nos. 35, 42, at ¶ 43]. Shortly after, Plaintiff and Bishop met to discuss his return to work. Id. at ¶ 45. Plaintiff assured Bishop that his addiction was not to illegal drugs, showed him materials from the clinic, and related that he was doing well with his rehab. Id. at ¶ 46. Bishop told him Id. at ¶ 47. The next morning, Plaintiff showed up to work and "didn't skip a beat." Id. at ¶ 48. Neither Plaintiff, nor Bishop, told Davis that Plaintiff was addicted to any drug or that he had gone to a drug rehab clinic during his leave. Id. at ¶ 49. Bishop later told Thomas Beerman that Plaintiff had gone to the rehab clinic.10 [ECF Nos. 35, 42, at ¶ 50]. No one at Shade Tree ever told Beerman or Davis, explicitly or implicitly, that Plaintiff used illegal drugs.11 Id. at 51. In addition to Beerman, Bishop also told an area manager at Shade Tree, James Risch, and Shade Tree president, Jim Baker, that Plaintiff had been in rehab or "detox." [ECF No. 46, at ¶¶ 35, 38]. Bishop, however, did not indicate to anyone that Plaintiff's leave was related to prescription medicine use. [ECF Nos. 41, 46, at ¶ 40].
As noted earlier, several emails from Davis highlight her communication concerns involving Plaintiff. In particular, on August 7, 2011, an email identified that Plaintiff failed to turn in a timesheet and audit on time. [ECF Nos. 35, 42, at ¶ 52]. Furthermore, Plaintiff and Davis clashed over billing issues, concerning a route sheet. [ECF Nos. 35, 42, at ¶ 53]. Davis began to question Plaintiff's integrity. Id. at ¶ 54. She became so upset on a phone call with Plaintiff that she raised her voice, vowed to call Beerman, and ultimately hung up on Plaintiff because she felt that he was lying about the information that he was relaying to her from Bishop. Id. at ¶¶ 55-56. After this August 25th phone conversation, Plaintiff asked Bishop to transfer him away fromDavis. Id. at ¶ 57. Plaintiff , however, has never contended that Davis's treatment of him had anything to do with his FMLA leave. Id. at ¶ 58.
In addition to conflict with Davis, Ameren's Beerman was concerned that there were multiple instances where Plaintiff did not respond in a timely manner to a customer inquiry. Id. at ¶ 61. Beerman and Davis followed up on their concerns regarding Plaintiff at their quarterly performance meeting in late August, at which Shade Tree area manager, James Risch, Bishop, and Plaintiff were present. Id. at...
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