Rush v. E.I. DuPont DeNemours & Co., Civil Action 2:11-CV-127

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtNorah McCann King
PartiesRONALD RUSH, Plaintiff, v. E.I.DuPONT DeNEMOURS AND COMPANY, Defendant.
Docket NumberCivil Action 2:11-CV-127
Decision Date20 November 2012

RONALD RUSH, Plaintiff,

Civil Action 2:11-CV-127


Date: November 20, 2012

Magistrate Judge King


This is an employment action in which plaintiff alleges that defendant violated plaintiff's rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., by using FMLA-protected leave as a factor in disciplining plaintiff and ultimately terminating his employment and by retaliating against plaintiff for his exercise of his rights under the FMLA. Plaintiff also asserts supplemental state law claims of retaliation in violation of O.R.C. Chapter 4112 and violation of public policy. Plaintiff further asserts a claim of race discrimination in contravention of O.R.C. §§ 4112.02, .99 and a claim of intentional infliction of emotional distress. With the consent of the parties, 28 U.S.C. § 636©, this matter is now before the Court on Defendant's Motion for Summary Judgment, Doc. No. 17 ("Motion for Summary Judgment"). For the reasons that follow, the Motion for Summary Judgment is GRANTED in part and DENIED in part.

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A. Plaintiff's Employment History with Defendant

On November 3, 2003, DuPont hired plaintiff, an African-American male, as an operator earning $10.61 an hour at its Hilliard, Ohio location. Deposition of Ronald Rush, Doc. No. 18 ("Plaintiff Depo."), pp. 10, 23; Exhibit 7, attached thereto; Exhibit 1, DRR00003171 , attached to Affidavit of Karen Canterbury ("Canterbury Affidavit"), attached to Motion for Summary Judgment;2 Affidavit of Ronald Rush, ¶ 2 ("Plaintiff Affidavit"), attached to Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, Doc. No. 22 ("Memo. in Opp.").

In early February 2004, DuPont promoted plaintiff to the position of production support technician with a pay increase to $12.74 per hour. Plaintiff Depo., pp. 28-29; Exhibit 7, attached thereto. DuPont again promoted plaintiff in April 2006 to the position of senior production support technician, increasing his pay rate to $18.13 per hour. Plaintiff Depo., pp. 29, 33.

In August 2006 and again in 2007,3 plaintiff applied for the position of senior lab technician in DuPont's Houston, Texas office.

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Plaintiff Depo., pp. 81, 83; Canterbury Affidavit, ¶ 6. DuPont did not award this position to plaintiff on either occasion, but instead hired a non-DuPont Hispanic applicant in 2006 and hired an African-American applicant in 2007, both of whom already lived in Houston, Texas. Canterbury Affidavit, ¶ 6.

In 2007, DuPont opened, on a trial basis, the position of Operations specialist / MiniMix for the first, second and third shifts. Plaintiff did not initially volunteer, but later applied for the positions when they were officially posted in June 2007. Canterbury Affidavit, ¶ 7. The "third shift position was posted in error because the individual who volunteered for the position (a Caucasian male) was currently still in the role and was successful in that position." Id. For the first shift position, DuPont hired a Caucasian male with experience as a Senior Master Operator in production and in quality control who "was a highly qualified Master Operator who had been with the company since May 1994." Id. at ¶ 8. For the second shift position, DuPont hired a Caucasian male who had been with DuPont since November 2003 and who had out-performed plaintiff during the interview process. Id. at ¶ 9.

Plaintiff applied for another position, FasTrac Sales Coordinator, in June 2007. Id. at ¶ 10. DuPont hired a Caucasian female "who had superior experience in her previous role as Production Shift Leader" and who had superior communication skills for customer service duties. Id.; Plaintiff Depo., p. 90.

In July 2007, plaintiff applied for yet another position, shift leader / production supervisor. Canterbury Affidavit, ¶ 11. DuPont filled that position with a Caucasian male "with extensive supervisory

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and lean manufacturing experience[.]" Id.

Plaintiff complained about these decisions and sought legal counsel. Plaintiff Depo., p. 203; Canterbury Affidavit, ¶ 13. On August 29, 2007, DuPont responded to a letter written by plaintiff, explaining why DuPont selected other applicants for these positions. Canterbury Affidavit, ¶ 13; Exhibit 1, attached thereto.

In September 2007, DuPont promoted plaintiff to production support group leader at an hourly pay rate of $19.98. Plaintiff Depo., pp. 37-39; Exhibit 9, attached thereto. In this capacity, plaintiff reported directly to Greg Jacobs, current Production Support Supervisor at the Hilliard, Ohio facility. Plaintiff Depo., pp. 38-39; Affidavit of Gregory Jacobs ("Jacobs Affidavit"), ¶¶ 2-3, attached to Motion for Summary Judgment.

In February 2009, plaintiff requested a step down from his third shift group leader position because of the stress of dealing with a fellow employee and because of foot issues. Plaintiff Depo., pp. 64-66, Exhibit 10, attached thereto. DuPont granted plaintiff's request and transferred him to second shift as a senior production technician. Id. Although this transfer decreased plaintiff's hourly rate from $20.68 to $19.70, plaintiff was confident that he could make up the difference with overtime. Plaintiff Depo., p. 64.

B. DuPont's Attendance Policy

DuPont's employee handbook ("the Handbook") contains policies on attendance and punctuality ("the Attendance Policy"). Plaintiff Depo., pp. 25-26; Exhibits 3 and 5, attached thereto. The Attendance Policy, applicable to regular full-time employees, explains the importance of reliable attendance and warns that poor attendance and

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tardiness may result in graduated disciplinary action:

To maintain a safe and productive work environment, DuPont Powder Coatings expects employees to be reliable and to be punctual in reporting for scheduled work. Absenteeism and tardiness places a burden on other employees and on the company. . . . Poor attendance and excessive tardiness are disruptive to business, and may lead to disciplinary action, up to and including termination of employment.

Exhibit 5, at DRR0000077, attached to Plaintiff Depo. Specifically, the Attendance Policy provides for certain disciplinary action taken following attendance occurrences:

One (1) occurrence: Discuss [] attendance policy
Two (2) occurrences: Note to File Status
Three (3) occurrences: Verbal Contact
Four (4) occurrences: Written Contact
Five (5) occurrences: Written Contact with Probation
Six (6) occurrences: Suspension/Termination

Id. at DRR0000079. A planned or approved absence, including FMLA leave, is not counted as a chargeable occurrence. Id. at DRR0000078.

C. Plaintiff's Attendance Occurrences and Progressive Discipline

Beginning in June 2009, plaintiff experienced attendance problems:

This is a note to file to verify that communication has taken place between Ron Rush and his Supervisor Greg Jacobs about his attendance. Ron has exceeded his attendance limit by one and a half days. Occurrence (1) - 7/17/09,4 occurrence (2) 09/24/09. The next unexcused absence will be a verbal warning.

Exhibit 21, attached to Plaintiff Depo. See also Plaintiff Depo., p. 116. Plaintiff was issued a verbal warning in October 2009 for his third occurrence under the Attendance Policy. Plaintiff Depo.,

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pp. 114-15; Exhibit 16, attached thereto.

Plaintiff was absent on December 2, 2009 through December 4, 2009, which was considered his fourth occurrence under the Attendance Policy, and he received a written warning. Plaintiff Depo., pp. 119-20; Exhibit 17, attached thereto. Plaintiff was advised that "[f]urther violations will result in further disciplinary action up to and including termination of employment." Exhibit 17, attached to Plaintiff Depo. Plaintiff missed two more days of work in February 2010. Exhibit 19, at DRR0000353, attached to Plaintiff Depo. Because of these occurrences, plaintiff was suspended without pay for three (3) days and was placed on probation for a period of one (1) year. Id. Plaintiff was also required to develop

an action plan to improve his performance that is agreed upon by his supervisor by 2/19/2010. Any further policy violations or performance issue will result in further disciplinary action. The first consideration will be termination of employment.

Id. Plaintiff and his supervisor, Mr. Jacobs, finalized plaintiff's "Formal Development Plan for Performance Improvement" ("the Plan"), id. at DRR0000354, in which plaintiff acknowledged that he has "no PTO [paid time off] call ins available for the rest of the year 2010." Id.

D. Plaintiff Requests and Receives Intermittent FMLA Leave

The Handbook also addresses absences in connection with FMLA leave:

A health care provider's statement must be submitted verifying the need for FMLA and its beginning and expected ending dates within 15 days. . . . Employees returning from FMLA must submit a health care provider's verification of their fitness to return to work.

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Exhibit 5, at DRR0000064-DRR0000065, attached to Plaintiff Depo.

In May 2010, plaintiff...

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