Reese v. Goodyear Tire & Rubber Co.

• Decision Date: 14 July 1994
• Docket Number: No. 91-4283-RDR.,91-4283-RDR.
• Citation: 859 F. Supp. 1381
• Parties: Freddie REESE, Plaintiff, v. GOODYEAR TIRE & RUBBER COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

859 F. Supp. 1381

Freddie REESE, Plaintiff, v. GOODYEAR TIRE & RUBBER COMPANY, Defendant.

No. 91-4283-RDR.

United States District Court, D. Kansas.

July 14, 1994.

Gregory J. Bien, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for plaintiff.

William G. Haynes, Frieden, Haynes & Forbes, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is an employment discrimination action which plaintiff brings pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq. This case is now before the court upon defendant's summary judgment motion.

Facts

The following facts appear to be uncontroverted. Plaintiff is a black man. He began his employment with defendant at defendant's plant in Topeka, Kansas in May 1985. While plaintiff was employed by defendant he lived in Lawrence, Kansas. This case arises from plaintiff's employment, his termination on October 5, 1988, and his subsequent efforts to obtain employment.

Plaintiff was placed in a disciplinary program because of absenteeism on September 1, 1987. The previous month plaintiff had missed one day for illness and one "hospital pass" day. The program does not require a certain amount of absenteeism before a worker is entered into it. The program has five steps, the fifth one being termination. The company rules describe the five steps as follows:

Step # 1 — Area Manager will talk to the employee on the job on a confidential and positive basis.

Step # 2 — Should another incident arise which requires follow-up action, the Area Manager will again address it casually on the job, but will later call the employee into his office for a more serious discussion. In addition, the incident should be discussed with the employee's union representative.

Step # 3 — In the event of a repeat infraction, Step # 2 should be repeated with some additions. The Area Manager, with the union representative present, should express concern over the problem and hope that the person will decide to conform to the requirements expected. This discussion should be confirmed in writing, signed by the department manager, and a copy given to the employee, union representative and union president. One year should elapse without incident before this step is cleared from the record.

Step # 4 — An employee who refuses to change his conduct, resulting in a similar incident, will once again be called to the office. In the presence of the union representative, the Area Manager should advise the employee that he will be given time off with pay to consider whether or not he can function within the established standards of the work place. The employee will be asked to provide a letter of commitment indicating whether or not he has chosen to correct his problem and operate under the established standards. To be consistent with the philosophy of positive discipline, the decision to correct his problem and write a letter of commitment must be left up to the employee. At this time, the employee should be told that another incident will be interpreted to mean that the employee has chosen not to comply with the established standards of the work place and termination could result. This discussion is again confirmed in writing, signed by the department manager and given to the employee with copies to the union representative and the union president. Again, one year without incident should elapse before this step is cleared from the record.

Step # 5 — Should another incident happen, the employee is to be placed on a 2-day cooling off period (two full working days) while consideration is being given to whether he will be terminated. Once an employee is placed on a two-day cooling off period, the Union can request a meeting of the Positive Discipline Review Board to present their views as to the immediate issue. Any decision to terminate an individual's employment will be confirmed in writing, signed by the department manager and sent to the employee with copies to the union representative and the union president.

On January 4, 1988, plaintiff was placed on the third step of the program. Then he was absent from work on January 7, 8, 9 and 11 because of reported car problems. On January 12, 1988, plaintiff was put on the fourth step of the program. During a meeting with management and union representatives, plaintiff was reminded that on January 4, 1988, when he was placed on step three of the program, he made an oral commitment "not to miss work for any excuse." He was also warned that failure to correct his attendance problem could result in discharge from the plant. During the remainder of January 1988 and in February 1988, plaintiff missed several days of work because of high blood pressure, flu, strep throat, pneumonia and a snow storm which prevented him from driving to work. Because of these absences from work, plaintiff was terminated from employment on February 24, 1988.

Plaintiff filed a grievance protesting his discharge. He was represented by his union. The arbitrator ruled in favor of plaintiff because absences for medical reasons and inclement weather are excused under the labor contract. This ruling, which was dated June 24, 1988, reinstated plaintiff to the fourth step of the disciplinary program.

Plaintiff returned to work on July 25, 1988. On August 5, 6, 7 and 8 plaintiff missed work to take his brother and sister to Mississippi to visit his ill mother. On August 9, 1988, plaintiff was counseled that if he was going to be absent from work for any reason, he must call the plant office and explain the reason for being absent from work. Later in August, plaintiff missed work so that he could be with his mother in Mississippi. His mother was suffering from moderately severe hypertension. Plaintiff called the office to inform defendant that he would be absent. When plaintiff returned to work on August 26, 1988, he was counseled by defendant for excessive absences and placed on a two-day cooling off period.

On August 29, 1988, plaintiff met with management personnel and a union representative. He was given a letter of agreement for signature. Plaintiff signed the agreement, although he felt forced to do so. The agreement stated:

The following is documentation of points agreed to by Mr. Fred Reese and the Local Union with regard to Mr. Reese's continued employment with Goodyear Tire & Rubber Company.

1. The Company will not tolerate any absence from work for any reason not arranged with proper management approval. To gain approval for an absence Mr. Reese must meet in person with management prior to the requested absence and obtain specific written approval.

2. If Mr. Reese is absent from work without complying with the requirements dictated by this letter his employment with Goodyear Tire & Rubber Company will be terminated. Furthermore, Mr. Reese agrees to not process a grievance if discharged because of violation of this letter.

Plaintiff was absent from work for several days in September 1988 because he was suffering with abscessed teeth. No disciplinary action was taken, although a supervisor indicated that 3.5 hours of his absence from work was unexcused.

Plaintiff was scheduled to report to work at 3:00 p.m. on October 3, 1988, which was a Monday. He did not report until 6:00 p.m. He called at 2:40 p.m. and again at 2:50 p.m. to inform defendant that he would not be at work on time. After he arrived at work he met with union representatives and a company manager. He explained that he had been stopped by Lawrence police officers for having illegal tags and was issued a warning ticket. He also reported that his name turned up on a police computer check for nonpayment of child support. He stated that he had to go to the courthouse to prove he had been making his child support payments. Plaintiff related that he called the plant office from the courthouse and that he left the courthouse about 3:30 or 4:00 p.m. He further stated that when he returned from the courthouse he found his apartment had been broken into and, therefore, had to call the police and the apartment manager.

Plaintiff was sent home for a two-day cooling off period. He was asked to find documents to substantiate his explanation of his late arrival at work. Plaintiff produced a letter from his attorney, dated October 5, 1988. The recitation of events in the letter differed in some respects from the explanation given by plaintiff to the company supervisor on October 3, 1988. The letter indicated that plaintiff found his apartment had been burglarized when he returned from a weekend fishing trip. Reporting the burglary, combined with previous plans to get car tags and pay his child support, made plaintiff late to work, according to the letter. Plaintiff produced a police report. But, the report stated that a break-in was reported by plaintiff on the morning of October 4, 1988 and that the break-in occurred on the morning of October 3, 1988. Plaintiff also produced a maintenance request document which indicated that plaintiff made a request for the repair of a broken window on the morning of October 3, 1988.

The letter of termination which plaintiff received stated:

On Monday, October 3, 1988 you called into the gatehouse and stated you would be late. Ten minutes later you called to report off Personal Other. Al Grubb, Division Chairman, contacted you and told you that you must report to work. You arrived at 6:00 PM. You were talked to in the office with your Union Representative and Area Manager.

You were sent out of the plant and was told to report to Jim Gray's office on Wednesday, October 5, at 3:00 PM.

In the Wednesday meeting those present were yourself; Al Grubb, Union Rep.; Ken Jordan, Business Center Auditor; and the writer of this letter.

Your attendance was discussed and you were told that you have not lived up to the agreement letter dated August 29, 1988. Management and the Local Union has

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