Burnett v. Southern Bell Telephone, L.P.

• Decision Date: 29 January 2007
• Docket Number: Civil Action No. 05-2514-KHV.
• Citation: 471 F.Supp.2d 1121
• Parties: Karen BURNETT, Plaintiff v. SOUTHWESTERN BELL TELEPHONE, L.P., Defendants.
• Court: U.S. District Court — District of Kansas

471 F.Supp.2d 1121

Karen BURNETT, Plaintiff v. SOUTHWESTERN BELL TELEPHONE, L.P., Defendants.

Civil Action No. 05-2514-KHV.

United States District Court, D. Kansas.

January 29, 2007.

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COPYRIGHT MATERIAL OMITTED

Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, KS, for Plaintiff.

Bruce A. Ney, Melanie N. McIntyre, Timothy S. Pickering, ATT & T Services, Inc., Topeka, KS, Jerald W. Rogers, Triplett, Woolf & Garretson, LLC, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Karen Burnett brings suit against Southwestern Bell Telephone, L.P. for retaliatory discharge in violation of the Family and Medical Leave Act, 29 U.S.C. § 2611 et seq. ("FMLA"), and the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA").¹ This matter is before the Court on Defendant's Motion For Partial Summary Judgment [On Plaintiffs FMLA Claim] (Doc. # 48) filed September 22, 2006 and Plaintiffs Motion For Leave To File A Surreply Memorandum In Opposition To Defendant's Motion For Summary Judgment (Doc. # 58) filed December 1, 2006. As a preliminary matter, the Court sustains plaintiff's motion for leave to file a surreply. For reasons stated below, the Court also sustains defendant's motion for summary judgment on plaintiffs FMLA claim.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party, to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348,, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Rule 56(e) also requires that "copies of all papers or parts thereof referred to in an affidavit be attached thereto or served therewith." To enforce this rule, the Court ordinarily does not strike affidavits but simply disregards those portions which are not shown to be based upon personal knowledge or otherwise do not comply with Rule 56(e). Maverick Paper Co. v. Omaha Paper Co., 18 F.Supp.2d 1232, 1234-35 (D.Kan.1998).

Facts

The following facts, are either uncontroverted or, where controverted, construed in the light most favorable to plaintiff;

I. Defendant's Attendance Policy

Defendant's policy requires "good attendance and punctuality." Operating Practice No. 45, Defendant's Exhibit B ¶ 1.2. The policy states that "[g]ood attendance means a demonstrated ability to be on the job on time over sustained periods of time." Id. The policy provides that

[t]here is no absolute mathematical standard for determining good or bad attendance. The determination of whether a particular employee's attendance is satisfactory or not is made on an individual basis, taking into account all of the relevant factors pertaining to each employee's attendance record.

Id. ¶ 1.3. Under the policy, defendant does not discipline employees for FMLA-approved absences and does not consider such absences when deciding whether to fire an employee.

II. Defendant's Discipline Policy

Defendant maintains a progressive discipline policy. Southwestern Bell Telephone Company Positive Discipline Policy and Procedure ("Discipline Policy"), Defendant's Exhibit C. The policy provides that defendant will accomplish most performance improvement through recognition of good performance or employee discussions. Id. ¶ 3.3. Where discipline is required, the policy sets forth three progressive levels. Most cases begin at level one with a "performance notice." Id. ¶ 3.3(A). At this level, the supervisor and employee discuss the job performance problem; the supervisor informs the employee that defendant expects, improvement and indicates what consequences will result if the employee is not improve. Id. ¶ 3.3(A)(1). A performance notice remains active for six months, and an employee may have one active performance notice in each performance category.² Id. ¶ 3.3(A)(3)(c). If a problem continues within the same performance category, or if the employee has three active performance notices in any categories, the employee must progress to the next higher, level of discipline. Id.

The second level of discipline is a "written reminder," which documents a formal conversation between a supervisor and employee about a "very serious" performance problem. Id. ¶ 3.3(B). The supervisor follows up with a written reminder to the employee which summarizes the conversation. Under the policy, defendant issues a written reminder when (1) an employee's performance has not met job requirements during the six-month active time period for a performance notice; (2) an employee already has three active performance notices in separate categories; or (3) a single incident occurs which is serious enough to warrant a written reminder, regardless of previous discipline. Id. ¶ 3.3.(B)(1). A written reminder remains active for nine months, and an employee may have only one written reminder active in any one performance category. Id. ¶ 3.3(B)(3)(d). If problems continue within the same performance category, or if the employee has two written reminders in different performance categories, the employee must progress to the next higher level of discipline. Id.

The third level of discipline is a "decision making leave" ("DML"), which begins with a. formal discussion between a supervisor and employee about an "extremely serious" performance problem which can result in dismissal. Id. ¶ 3.3(C). The discussion typically occurs just before the end of the employee's shift. The supervisor informs the employee of the seriousness of the situation and asks the employee to decide whether he or she can commit to meet all job requirements. At the end of the discussion, the supervisor places the employee on DML with pay for the following scheduled work day.³ Upon returning the next scheduled work day, the employee must report to the supervisor whether he or she can commit to meet all job requirements. If not, the employee may resign. Id. Under the policy, defendant applies a DML when (1) an employee has not achieved and maintained job performance requirements during the nine-month active time period for a written reminder; (2) an employee already has two active written reminders in separate categories; or (3) an employee commits an "extremely serious offense," regardless whether previous discipline has occurred. Id. ¶ 3.3(C)(1) A DML remains active for 12 months, and an employee may have only one active DML at a time. Id. ¶ 3.3(C)(3)(d). If an employee commits an infraction while a DML is active, the immediate supervisor must document the infraction and forward an appropriate recommendation to the next two higher levels of management. Id. ¶ 3.3(C)(3)(e). The policy further provides that "[i]f the infraction is not deemed worthy of dismissal, the documentation will be covered with the employee and placed in the employee's personnel file." Id.

If a problem recurs after a discipline action is no longer active, the policy provides as follows:

Occasionally, a problem may reoccur in a deactivated performance category. In some cases, the situation can be dealt with through an employee discussion. If the problem warrants a step of discipline, generally, the employee will "start over" at Step 1 (Performance Notice). However, a manager is not required to start over at Step 1 if the situation is such that a more severe step of discipline, including dismissal, is appropriate. All relevant factors, including the following, should be taken into account when determining which course of action to...