Picarazzi v. John Crane Inc, CIVIL ACTION NO. C-10-63

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtJanis Graham Jack
PartiesPERRY PICARAZZI, Plaintiff, v. JOHN CRANE, INC., Defendant.
Docket NumberCIVIL ACTION NO. C-10-63
Decision Date07 February 2011

JOHN CRANE, INC., Defendant.



SIGNED and ORDERED: February 7, 2011


On this day came on to be considered Defendant John Crane Inc.'s Motion for Summary Judgment. (D.E. 25.)

For the reasons stated herein, Defendant's Motion for Summary Judgment is DENIED.

I. Jurisdiction

The Court has federal question jurisdiction over this action, 28 U.S.C. § 1331, as it is brought under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA") and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. ("ADA").

II. Background

A. Factual Background

Defendant John Crane, Inc. ("JCI") manufactures, sells and services engineered sealing systems for industrial markets. JCI is headquartered in Morton Grove, Illinois and the branch office and service center, where Plaintiff Perry Picarazzi worked, is located in Corpus Christi, Texas.

JCI most recently hired Plaintiff on October 24, 2005. (D.E. 25, Ex. D, §IV). Plaintiff previously had worked for JCI between 1991 and 1996 as a Seal Repair person until he was laid off. (Ex. A at p. 26, ll.18-24; Ex. D at §IV). Plaintiffs job when he returned was Customer

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Service Representative II. (Ex. D at §4; Ex. F). Plaintiff worked at JCI's Corpus Christi Branch throughout his employment. (Ex. D, §IV). Plaintiff was terminated on June 26, 2008. (Ex. C at p.141, ll.19-25; Ex. 17).

The record establishes that Plaintiff has a history of alcoholism, (D.E. 25, Ex. A, p. 4652), and it is undisputed that Plaintiff's alcohol problems while employed at JCI led to a series of absences from work. (D.E. 25, Ex. A (Picarazzi Depo.)) According to Defendant, these absences led to points being accumulated against Plaintiff under the JCI Attendance Policy.

Under the Policy, an absence counts as two points. An employee is subject to discipline if 5 points are accumulated in any 30 day period, or 7 points are accumulated in any 90 day period, or 12 points are accumulated in any 365 day period. The first level of discipline is a Written Warning. The second level of discipline is a Final Warning. The third level of discipline is Discharge.1

The absence points were assessed by Plaintiff's supervisor Gary Kretschmar and JCI's Director of Human Resources Walter Burdorf.

Plaintiff disputes Defendant's characterization of events, contending that Defendant made these point assessments retroactively while Plaintiff was on approved FMLA leave; that Defendant's point assessments are inconsistent with Defendant's own story and policies; that Defendant never informed Plaintiff that he was accumulating absence points; and did not give Plaintiff warnings, as required by the Policy, until long after a duty arose to do so. (D.E. 27.)

The summary judgment evidence establishes the following series of events, leading up to Plaintiff's termination on June 26, 2008:

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1. Plaintiff's Absences Due to Alcohol Related Problems

During the months of January, February and March of 2008, Plaintiff was absent from work several times. Plaintiff admits that at least some of these absences were due to drinking, and that he did not disclose his drinking to anyone at JCI at that time. (D.E. 25, Ex. A at p. 51, ll.4-19).

By around March 30, 2008, Plaintiff had apparently accumulated at least 7 unexcused absences within a 90 day period, triggering a discipline action under the Attendance Policy. (Ex. E (Attendance Policy)). Accordingly, Plaintiff's supervisor, Gary Kretschmar, drafted a Written Warning, the first level of discipline under the Policy. (Ex. I (Written Warning)).

However, the Warning was not issued to Plaintiff at this time. According to Kretschmar, he did not give the Written Warning to Plaintiff at that time because Plaintiff was absent from work. (Ex. B, p. 71, ll.2-24, p. 72, ll. 1-11, p. 141, ll.2-25) (Q: "And is it your testimony that you had no opportunity whatsoever to get that information to Mr. Picarazzi?" A: "That is correct. Not until he returned.") Kretschmar contends he did not want to have anyone else give Plaintiff the warning, as it was his responsibility. (Ex. B, p. 71-72.)

Rather, the March 30, 2008 Written Warning was not issued to Plaintiff until June 20, 2008, six days prior to Plaintiffs termination on June 26, 2008, and the same day on which Plaintiff received his Final Warning. (Ex. I (Written Warning); Ex CC (Final Warning).

2. Plaintiff's FMLA Leave Of Absence At Watershed

Around late March or April 2008, Plaintiff called his supervisor Kretschmar (sometimes called "Skip") and told him about his alcohol problems. (Ex. A, p. 132, ll.13-22) ("That is the [period in which] I called Skip my boss, Gary, and told him what was going on...I said, "I need to get some help.")

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On April 2, 2008, Plaintiff went to the Watershed Addiction Treatment Programs ("Watershed") for treatment, where he was first diagnosed with alcoholism. (Ex. A at p. 44, ll.16-23). Plaintiff's health care provider at Watershed was Dr. Stephen Zella. (Ex. J.)

To facilitate his stay at Watershed, Plaintiff completed Leave of Absence documentation and requested FMLA leave from JCI, commencing April 1, 2008. (Ex. J). The "Certification of Health Care Provider, " completed on April 4, 2008 by Dr. Zella, confirmed that Plaintiff was admitted to Watershed on April 2, 2008, and that Dr. Zella estimated discharge 28-30 days later on May 2, 2008. (Ex. J, p. 3-5).

On April 4, 2008, JCI acknowledged Plaintiff's notice of need for leave commencing April 1 and continuing to approximately May 4, 2008. (Ex. K). JCI's Leave Administrator in Human Resources, Jan Tuton, stated that Plaintiff's "leave of absence [had] been approved as of April 1, 2008." She stated that Plaintiff would have to update Human Resources every 30 days of his status, and that his job would be protected until the 12 week period of leave to which he was entitled under the FMLA expired on June 23, 2008. (Id.)

On April 23, 2008, Plaintiff was discharged from Watershed. (Ex. A at p. 146, ll.19-22; Ex. L). In a letter confirming Plaintiff's discharge and return-to-work date, Dr. Zella stated that Picarrazi had worked very hard at his recovery during his stay at Watershed and became a "positive example and role model for the community." (Ex. L.)

Although Plaintiff claims that he felt physically fine enough to return to work as of his April 23, 2008 discharge date, (Ex. A, p. 155, ll.2-10), and admitted in his complaint that Watershed had released him to return to work on April 24, 2008, (Ex. D, Section IV), Dr. Zella stated in his letter that Plaintiff was referred to an Outpatient Program and that he could return to work with no restriction on April 30, 2008. (Ex. L.)

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Plaintiff did not report to work on April 24, 25, 28 or 29, even though he was not in Watershed at that point. (Ex. A at p. 147, ll.19-25; p. 148, ll. 1-9).

On April 29, 2008, Plaintiff told Kretschmar that he had relapsed and had decided to go back in to rehab. (Ex. A at p. 155, ll. 13-25) ("I called Skip the night before I decided to go back in...I told Skip I relapsed, and he said, "I understand, it's part of the disease...Go back...take care of it and call me every day.")

Even though his release date was not until April 30, 2008, Plaintiff was assessed two attendance points for his absences between April 24 and April 29. JCI's Director of Human Resources Walter Burdorf, who assessed the two points, contends that he assessed the two points against Plaintiff, even though Plaintiff was on approved leave, because Plaintiff "was discharged during that leave of absence. It ended the leave of absence." (Ex. C, p. 104, ll.9-10).

Plaintiff returned to Watershed for a second term of rehab from April 30 to May 8, 2008. (Ex. N). On May 8, 2008, Dr. Zella sent a letter confirming this stay and discharging Plaintiff to return to work on May 13, 2008. (Id.) Watershed scheduled an appointment for Plaintiff for outpatient therapy at Padre Behavioral Hospital ("Padre") on May 9, 2008. (Ex. N at 3.) However, Plaintiff did not go to Padre on May 9, 2008. (Ex. A at p. 165, ll.8-17). Plaintiff claims he instead went to Coastal Bend, a different treatment facility, on May 9, 2008. But Plaintiff apparently did not provide any documents to JCI showing that he went to Coastal Bend. (Ex. A at p. 168, ll.9-14; Ex. C at p. 112, ll.13-25).

3. Plaintiff's Return to Work

Plaintiff returned to work on May 13, 2008. (Ex. A at p. 172, ll.13-14; Ex. M). The May 13 return date was consistent with the return to work date provided by Dr. Zella. (Ex. M.) Nonetheless, Plaintiff was assessed two points for the period between May 9 and May 12.

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Burdorf, who assessed these points, admits that Plaintiff's return to work date was May 13, but states that he assessed the points because Plaintiff was "not under a healthcare provider" on those days. (Ex. C. at p. 112, ll. 13-25, p. 113, ll. 1-3). That is, he used the Watershed discharge date of May 8, 2008, rather than the return to work date of May 13, 2008, for computing Plaintiffs FMLA leave.

Plaintiff also reported to work on May 14, 2008. (Ex. A, p. 180.) However, Plaintiff...

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