Robinson v. Wilson Concrete Co.

• Decision Date: 23 January 1996
• Docket Number: Civil Action No. 95-2320-EEO.
• Parties: James ROBINSON, Plaintiff, v. WILSON CONCRETE CO., Defendant.
• Court: U.S. District Court — District of Kansas

913 F. Supp. 1476

James ROBINSON, Plaintiff, v. WILSON CONCRETE CO., Defendant.

Civil Action No. 95-2320-EEO.

United States District Court, D. Kansas.

January 23, 1996.

COPYRIGHT MATERIAL OMITTED

Angela Y. Habeebullah, Kansas City, KS, Mickey Dean, Kansas City, MO, for plaintiff.

Mark A. Ferguson, Lathrop & Gage, L.C., Overland Park, KS, George C. Rozmarin, Michael J. Mooney, Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, NE, Brian N. Woolley, Teresa J. Stewart, Lathrop & Gage, L.C., Kansas City, MO, for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This matter is before the court on defendant's motion to dismiss and, in the alternative, for summary judgment (Doc. # 5). For the reasons set forth below, defendant's motion to dismiss will be denied and defendant's motion for summary judgment will be granted.

Factual Background

For purposes of this opinion, the following material facts are uncontroverted or deemed admitted, pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56.1.¹

Defendant Wilson Concrete Company ("Wilson") manufactures concrete structures for highways and railroads at its plant in Kansas City, Kansas. Plaintiff James Robinson was employed as a laborer in the production division from October 3, 1991, until June 30, 1993.

Throughout the period of plaintiff's employment at Wilson, the Heavy Construction Laborers' Local Union No. 663 ("the Union") represented all employees within plaintiff's job classification. Under a collective bargaining agreement, the Union had negotiated a binding attendance policy which went into effect January 1, 1992, and was posted at the plant.

Under the attendance policy, employees were assessed points for various attendance infractions as follows: one point for being tardy by less than ninety minutes; two points for tardiness in excess of ninety minutes; and three points for unexcused absences. Points were not assessed for absences or tardiness if: (1) a supervisor gave prior approval; or (2) the absence or tardiness was due to illness or injury and the employee provided a doctor's excuse. The policy also provided for a reduction of points after twenty or more consecutive days without an attendance infraction. Discipline under the policy was as follows: a written warning upon accumulation of three points; suspension without pay upon accumulation of six to eight points; and termination upon the accumulation of nine points.

On Saturday, May 22, 1992, plaintiff was tardy in reporting for work and was assessed one point. On Wednesday, June 2, 1993, plaintiff claims that he injured a muscle in his chest while lifting a steel form during his shift and that he so informed defendant. Plaintiff left work early with his supervisor's permission and was not assessed any points under the attendance policy. He went to see Dr. Elias Zirul that same day and was diagnosed with bronchitis. Plaintiff does not controvert that he informed defendant that he was diagnosed with bronchitis, and not a work-related injury.

On June 14, 1993, plaintiff had an unexcused absence and was assessed three points under the attendance policy, bringing his total points to four. Plaintiff claims that he was suffering pain in his chest related to his chest injury, but could not get in to see the doctor until June 15, 1993. On June 24, 1993, plaintiff signed a written warning which stated, "James was late 5/22 and absent 6/14 pending doctors sic excuse." Plaintiff does not deny that he was told that the points assessed for the unexcused absence on June 14, 1993, would be removed if plaintiff brought in a doctor's excuse. However, plaintiff did not, at any time, submit a doctor's excuse and have the three points removed.

On June 15, 1993, plaintiff was absent with a doctor's excuse and was not assessed any points. On June 23, 1993, plaintiff was absent without permission or a doctor's excuse and was assessed three points, bringing his total points to seven. Consequently, plaintiff was suspended without pay for three days on June 24, 25, and 28, 1993. There is no evidence in the record that plaintiff protested this suspension or attempted to have it set aside by presenting a doctor's excuse for either of the alleged medical absences on June 14 or June 23, 1993.

On June 25, 1993, plaintiff called his supervisor and obtained an excuse from work on June 29, 1993, to keep a doctor's appointment with Dr. Zirul on June 29, 1993. After reviewing X-rays of plaintiff's chest, Dr. Zirul re-diagnosed plaintiff's condition as a strained pectoral muscle. Plaintiff called defendant and stated that he thought his condition, previously diagnosed and reported to defendant to be bronchitis, was work-related. Defendant told plaintiff to come in the next day and fill out paperwork related to the accident and be examined by the company physician.

Whether plaintiff was told a specific time to report on June 30, 1993, is an issue of dispute. Plaintiff says he was not given a specific time to report, while defendant states that plaintiff was told to report when the office opened at 7:00 a.m. to complete an accident report and have a medical examination. In any event, after plaintiff arrived at the plant at 9:45 a.m., he was sent to be examined by the company physician, who confirmed Dr. Zirul's diagnosis of a strained pectoral muscle and placed plaintiff on work restrictions.

Plaintiff was assessed two points for tardiness on June 30, 1993. This brought plaintiff's attendance policy points to nine—the number requiring immediate termination. After plaintiff returned from the company physician, defendant terminated plaintiff's employment.

Plaintiff did not challenge his termination under the attendance policy by filing a grievance under the collective bargaining agreement. Instead, on July 24, 1995, plaintiff filed the instant suit alleging that he was terminated in retaliation for his exercise of his worker's compensation rights. Defendant filed the instant motion to dismiss, contending that plaintiff's retaliatory discharge claim is preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1988) ("LMRA"). Alternatively, defendant moves for summary judgment, contending that under the requisite clear and convincing standard of proof plaintiff can neither make out a prima facie case or establish that defendant's stated reason for plaintiff's termination—his accumulated points under the attendance policy—was pretextual.

Legal Standards

Dismissal of a complaint pursuant to Rule 12(b)(6) is a dismissal on the pleadings unless "`matters outside the complaint are presented to and not excluded by the court ...' in which case `the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....'" Seattle-First Nat'l Bank v. Carlstedt, 800 Fed. 1008, 1011 (10th Cir.1986) (quoting Fed. R.Civ.P. 12(b)). Both parties have raised matters outside the pleadings. Accordingly, defendant's motion will be treated and decided as a motion for summary judgment.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 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. at 2510.

The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an issue is genuine 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. at 2511-12. An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct. at 2512.

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 Sec., 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, 1355-56, 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.

"We must view the record in the 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). "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, 793 (10th Cir. 1988). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts as set forth by the moving party...