Chaparro v. IBP, Inc.

• Decision Date: 04 January 1995
• Docket Number: Civ. A. No. 93-2200-GTV.
• Citation: 873 F. Supp. 1465
• Parties: Amanda CHAPARRO, Plaintiff, v. IBP, INC., Defendant.
• Court: U.S. District Court — District of Kansas

873 F. Supp. 1465

Amanda CHAPARRO, Plaintiff, v. IBP, INC., Defendant.

Civ. A. No. 93-2200-GTV.

United States District Court, D. Kansas.

January 4, 1995.

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David O. Alegria, McCullough, Wareheim & La Bunker, P.A., Topeka, KS, for plaintiff.

Terri Savely Bezek, John J. Jurcyk Jr., Frank D. Menghini, Douglas M. Greenwald, Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, Katherine E. Rich, Holman, McCollum & Hansen, P.C., Prairie Village, KS, for defendant.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

Plaintiff in this diversity jurisdiction suit against her former employer alleges that defendant wrongfully discharged her in violation of Kansas public policy. Plaintiff contends that her termination was in retaliation for plaintiff's exercise of her rights under the Kansas Workers Compensation Act. Defendant argues that plaintiff's termination was based on an excessive number of unexcused absences. The case is before the court on plaintiff's motion for partial summary judgment (Doc. 48) and defendant's motion for summary judgment (Doc. 53). Both motions address the issue of defendant's liability for retaliatory discharge. For the reasons set forth below, plaintiff's motion is denied and defendant's motion is granted in part and denied in part.

I. Facts

The following summary contains uncontroverted facts as established pursuant to Fed. R.Civ.P. 56 and in accordance with D.Kan. Rule 206(c). Immaterial facts and factual averments not properly supported by the record are omitted.

Plaintiff Amanda Chaparro was hired by defendant IBP, Inc., which operates a meat processing plant, on April 25, 1989. Her first job was trimming cow tails after they had been removed and washed. In December 1990, plaintiff bid for a job dropping tails which involved cutting the tails off cows and throwing them down a chute to the washers and trimmers. One reason that plaintiff wanted to change jobs was that she felt dropping tails would be easier on her hand which had begun to swell and cause discomfort. IBP transferred her to the job of dropping tails in February 1990.

When plaintiff returned to work on September 4, 1990, after a 5-month maternity leave, she was not immediately placed in her former job dropping tails. The record is unclear as to what job she was assigned when she first returned, but plaintiff complained to the dispensary nurse on September 27, 1990, that the new job was causing pain and swelling in her left hand. Plaintiff was returned to her old job of dropping tails on September 28, 1990. Plaintiff continued to have pain and swelling in her left hand and she returned to the dispensary for treatment on October 19, October 22, November 1, and November 6, 1990.

The first absence which is relevant to plaintiff's ultimate discharge from employment occurred on October 29, 1990. That evening she left work to attend a scheduled doctor's appointment. She did not return to work that evening, nor did she call in to report that she would not be returning. On October 30, 1990, plaintiff returned to work with a doctor's note which stated that plaintiff had been under the doctor's care and would be unable to work until November 1, 1990. Plaintiff was then assessed an unexcused absence for failing to return to work or call in after her doctor's appointment the preceding day. Plaintiff discussed the unexcused absence with her supervisor who refused to excuse the absence. She appealed this decision to Rick Nimrich, personnel department manager, who upheld the supervisor's action.

IBP's attendance policy calls for treating absences as either excused or unexcused. An employee is subject to discharge after incurring three unexcused or 12 excused absences in a 12-month period. IBP has no written procedure addressing the proper actions an employee must take when, after receiving permission to be absent for a doctor's appointment, the doctor visit is not completed until after the employee's regular shift. Neither do IBP rules specifically require an employee to return to work after leaving early for personal reasons. IBP rules call for treating absences due to doctor visits as excused absences.

The dispensary nurses continued to monitor plaintiff's condition, and on November 5, 1990, plaintiff was assigned to light duty on the paint crew and her supervisor was told that plaintiff should minimize the use of her left hand. On November 20, 1990, plaintiff reported that she was no longer having problems with her hand, and she was returned to her regular job of dropping tails on November 26, 1990. She continued to work at this job until December 7, 1990.

On December 4, 1990, plaintiff again reported problems with her left hand, and the dispensary nurse scheduled a doctor's appointment in order to have her hand examined. Plaintiff visited Dr. Welch on December 7, 1990, and was diagnosed as having work-related left carpal tunnel syndrome. Dr. Welch told plaintiff she should not use her left hand at work and also relayed this information to IBP. Plaintiff was also given a splint to wear at all times. Upon receipt of this information, Nurse Garcia in IBP's dispensary explained to plaintiff which available jobs would accommodate the restrictions. Plaintiff was then assigned to the labeling department where she was given the job of labeling boxes using her right hand. This assignment lasted through March 12, 1991. During this period, Dr. Welch added a restriction that plaintiff should work only in a warm environment. The doctor also diagnosed plaintiff as having work-related DeQuervain's syndrome of the left wrist, and added a restriction that plaintiff was not to lift more than 20 pounds and was to wear an Ace bandage at work without the splint. During this period, plaintiff also continued to receive cumulative trauma disorder exams at the dispensary.

On March 5, 1991, plaintiff filed a workers compensation claim, and IBP received notification of the claim on March 8, 1991. In her claim plaintiff sought entitlement to temporary total disability benefits along with job accommodation and vocational rehabilitation evaluation.

On March 15, 1991, plaintiff was assigned to the laundry facility as part of the "welfare cleanup crew" after she reported to the nurse that the cold was affecting her hands. This job required plaintiff to hang laundry in employees' lockers and enabled her to work in a warmer environment. She continued in this job until April 11, 1991, when plaintiff was transferred to the low rendering operation. In this job plaintiff was required to operate, mainly by pushing buttons, a machine which ground up bones and fat. Plaintiff apparently had no physical problems in performing either the welfare cleanup or low rendering operator jobs.

On May 2, 1991, Nurse Shipley made an entry in plaintiff's dispensary records stating that plaintiff was to continue in the welfare cleanup job. The entry also stated that plaintiff was not to lift, push, pull, or carry over 10 pounds, and was not to grip, pinch, or reach above her shoulders. On May 6, 1991, Nurse Shipley reassigned plaintiff to the job of wrapping rounds, also known as hanging plastic on rounds. This job entailed taking plastic off a roll and wrapping a round with it. Nurse Shipley's records show that the reason for the change was "crewing," a term that refers to the process of matching available personnel to positions needing to be filled.

Plaintiff first complained to Nurse Shipley on May 6, 1991, that she could not wrap the rounds with one hand because it was too hard to take the plastic off the roll and also put it on the round with only one hand. Plaintiff also asked the nurse to take her off the hanging plastics job because the overhead reaching motions it required were hurting her arm. In response, Nurse Shipley told plaintiff to do the best she could with one arm, despite the fact that the nurse knew that the job required the use of both hands.

At plaintiff's urging, Nurse Shipley phoned Dr. Welch on May 9, 1991, to ascertain whether the job was within plaintiff's restrictions. Based on the description of the job given by the nurse, the doctor determined that the wrapping rounds job fell within plaintiff's work restrictions and authorized her to continue on that job. During that telephone conversation, Nurse Shipley also told the doctor that it was not unusual for plaintiff to disappear for long periods of time during which she could not be found. Nurse Shipley does not recall the source of this information or the reason that she relayed it to the doctor. Plaintiff also visited Dr. Welch later the same day, May 9, 1991. According to the doctor's notes, plaintiff explained what the job entailed and Dr. Welch concluded that the job may require more pulling and straining than the doctor had inferred from Nurse Shipley's description. The doctor concluded, however, that the job was within plaintiff's restrictions.

On May 10, 1991, plaintiff visited the dispensary with complaints of fever, achiness, nausea, dizziness, and vomiting. Nurse Shipley sent plaintiff home because of her illness, told her to see her personal physician, to return to work only after getting a doctor's release, and to call in to work every day. Plaintiff alleges that she told the nurse she could not call in every day because she did not have a phone and the nearest phone to which she had access was two or three blocks away. Nurse Shipley does not recall plaintiff making this statement, but the nurse was aware that plaintiff's telephone had been disconnected when they attempted to call plaintiff earlier, on April 15, 1991.

Plaintiff, in her deposition testimony, alleges that she called in to work on May 11, 1991, and left a message on the answering machine that receives absentee calls. According to plaintiff, the message she left stated that she had made a doctor's appointment for May 13, the earliest available...