Huber v. Westar Foods, Inc.
| Decision Date | 17 January 2023 |
| Docket Number | 8:21CV229 |
| Parties | TONYA C. HUBER, Plaintiff, v. WESTAR FOODS, INC., Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on three separate motions: a Motion for Summary Judgment filed by defendant Westar Foods Inc. (“Westar”) (Filing No. 38), a Motion for Partial Summary Judgment filed by plaintiff Tonya C. Huber (“Huber”) (Filing No. 41), and Huber's Motion to Strike (Filing No. 55). For the following reasons Westar's Motion for Summary Judgment is granted. Huber's motions are both denied.
Westar owns and operates seven Hardee's fast-food restaurants in Nebraska. Westar hired Huber as a store manager for their Elkhorn, Nebraska, location (the “Elkhorn store”) in December 2018. Huber's responsibilities included “hiring, training, and discipline of crew members, managing the crew, overseeing costs, and maintaining the store.” Huber was also responsible for ensuring the Elkhorn store was opened at 5:00 a.m. each morning. She was expected to work fifty hours per week.
Huber received Westar's employee handbook when she was hired, including Westar's attendance policy (the “attendance policy”). The attendance policy stated that an employee who would be late or absent must “call the management person in charge immediately so that enough time is given to cover [the employee's] position.” An employee was expected to call “at least two-hours before [their] work shift [began] when possible.” The attendance policy further specified the employee “must call and speak directly to the management person in charge” and that “[t]exting, emailing or leaving a message” were unacceptable ways to communicate tardiness or absences.
While working for Westar, Huber reported to three separate district managers at different times: a person named Stacy; Matt Thayer (“Thayer”); and Cindy Kelchen (“Kelchen”). On January 10, 2019, Huber received an “employee coaching tool,” which reminded Huber of the need for her to communicate scheduling changes in accordance with the attendance policy.
On October 30, 2019, Huber became ill with the stomach flu and missed all or part of her work shift. She sent a text message to a group of managers about her absence. The next day, her illness caused her to leave work early. Huber contends she also called her then-manager Kelchen, who “did not answer,” but Kelchen denies ever receiving a call from Huber. Regardless, both parties agree Huber was disciplined through a formal write-up for violating the attendance policy.[1] They also agree that after Huber's write-up, Kelchen “sat down with Huber and discussed the importance of following the company's” attendance policy.
Huber was diagnosed with diabetes a few months after starting her employment with Westar. She required a daily insulin shot to manage the disease. She left her insulin at home on workdays until September 2019, when she began storing it in a safe in the Elkhorn store without issue. Huber contends she previously asked both Thayer and Kelchen about insulin storage in the workplace but received no assistance; Kelchen denies the conversation occurred and Thayer does not recall. Huber never discussed insulin storage with Amy Rowe (“Rowe”), Westar's human resources representative.
Early in the morning of December 20, 2019, Huber was scheduled to open the Elkhorn store. In the days before, she had not been feeling well and “knew something was off.” She did not make it to work that day. Instead, she drove herself to a nearby clinic and learned she was having a diabetic episode with low-blood-sugar levels. She spent the rest of the day receiving medical treatment at the clinic, including medication intravenously.
Huber spoke on the phone with her then-boyfriend, Richard Grondin (“Grondin”), several times throughout that morning and day. One call lasted around forty-five minutes. Huber says she does not remember the calls because the diabetic episode impacted her cognition and consciousness. She also spoke with her son, Trey Huber (“Trey”), to tell him she was at the doctor's office. Trey described Huber's communication as “all over the place” and said he found it difficult to understand her.
Huber never called Kelchen on December 20th to discuss her illness or absence. After Kelchen was unable to reach Huber that day, she called Trey, who informed Kelchen his mother was at the doctor's office or hospital. That night, Grondin drove Huber home from the clinic, and Huber “slept for most of the night into the next day.”
The next morning, Huber was again scheduled to open the Elkhorn store at 5:00 a.m. She called Kelchen around 7:45 a.m. and spoke to her for the first time about her medical incident. According to Huber, “[h]er call to Kelchen was her first interaction upon awakening from her post-sedation sleep.” Huber gave Kelchen some details about her health condition and follow-up care.
Following the call, Huber sent Kelchen a copy of a doctor's note which stated: “Please excuse patient from work due to illness through 12/26/19.” The note gave no further details.
Kelchen contends she then “relayed the events of the past two days to” Frank Westermajer (“Westermajer”), President of Westar, after her call with Huber. Westermajer claims he made the decision to terminate Huber at that point, after “learning of the events from Kelchen and conferring with Rowe.” Rowe drafted Huber's termination letter.
The next day, Huber emailed Kelchen and Rowe to request “family medical leave paperwork for [her doctor] to fill out.” After receiving no response, Huber sent a second email requesting the paperwork on December 23rd. On December 24th, Huber emailed an updated doctor's note to Kelchen and Rowe excusing Huber from work through January 2, 2020 for “acute illness, hypoglycemia, fever and debility.” In response, Rowe attempted to schedule a phone call with Huber, but Huber stated she was “still not well enough to have a work related conversation.”
Westar then terminated Huber effective December 26, 2019. The termination letter cited Huber's “fail[ure] to follow the Company's notice procedures for [her] absences on December 20, 2019 and on December 21, 2019.” The letter also stated her absences would “not be covered under the Family Medical Leave Act of 1993” because Huber “failed to provide notice as soon as possible and practical” and “did not request any need for an accommodation until after the unscheduled absences.”
On June 17, 2021, Huber filed this lawsuit (Filing No. 1), asserting claims for disability discrimination in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. § 48-1101 et seq. Huber alleges Westar fired her “[f]ollowing reasonable requests for accommodation” and “[a]fter learning of [her] history of disability.” Huber also brings interference and retaliation claims under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq.
The parties filed cross-motions for summary judgment on September 9, 2022. Westar asks for “entry of summary judgment on all claims.” Huber seeks partial summary judgment as to Westar's “affirmative defenses of failure to mitigate damages and after-acquired evidence.” Huber also moved to strike two affidavits submitted by Westar in opposition to Huber's motion for partial summary judgment, arguing they “contain expert testimony” that was not timely disclosed. All three motions are now ripe for review.
On cross-motions for summary judgment, the Court considers each motion separately, “viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmovant.” Corkrean v. Drake Univ., 55 F.4th 623, 630 (8th Cir. 2022) (quoting Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1033 (8th Cir. 2007)). Summary judgment is required “if the movant shows that 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 ‘mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law.'” Corkrean, 55 F.4th at 630 (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)). A genuine dispute exists only “if there is enough evidence ‘that a reasonable jury could return a verdict for the nonmoving party.'” Farver v. McCarthy, 931 F.3d 808, 811 (8th Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
At the summary-judgment stage, the Court “does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue.” Walz v. Randall, 2 F.4th 1091, 1099 (8th Cir. 2021) (quoting Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008)). “To defeat summary judgment, ‘the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Carter v. Atrium Hosp., 997 F.3d 803, 808 (8th Cir. 2021) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
1. Discrimination Claim
Huber claims there are material factual disputes regarding whether “Westar discriminated against [Huber] based on her disability” in violation of the ADA and NFEPA.[2] See 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability”); Neb Rev. Stat. § 48-1107.01 (...
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