Schrieber v. Fed. Express Corp. D/b/a Fedex Express

• Citation: 698 F.Supp.2d 1266
• Decision Date: 08 March 2010
• Docket Number: Case No. 09-CV-128-JHP-PJC.
• Parties: Dennis SCHRIEBER, Plaintiff,v.FEDERAL EXPRESS CORPORATION d/b/a Fedex Express, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

698 F.Supp.2d 1266

Dennis SCHRIEBER, Plaintiff,v.FEDERAL EXPRESS CORPORATION d/b/a Fedex Express, Defendant.

Case No. 09-CV-128-JHP-PJC.

United States District Court,

N.D. Oklahoma.

March 8, 2010.

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Amber Lynn Hurst, Mark Edgar Hammons, Hammons Gowens & Assoc. Inc, Oklahoma City, OK, for Plaintiff.

Elizabeth Marie Fong Low, Keith R. Thomas, Federal Express Corp., Memphis, TN, Kimberly Lambert Love, Robyn Marie Funk, Titus Hillis Reynolds Love Dickman & McCalmon, Tulsa, OK, for Defendant.

ORDER

JAMES H. PAYNE, District Judge.

Before the Court is Plaintiff's Motion For Partial Summary Judgment, [Doc. No 64], Defendant's Response in Opposition to Plaintiff's Motion [Doc. No. 76], and Plaintiff's Reply to Defendant's Response [Doc. No. 82]. Also before the Court is Defendant's Motion For Summary Judgment [Doc. No. 72] and Memorandum of Law in Support of Defendant's Motion [Doc. No. 73], Plaintiff's Response to Defendant's Motion [Doc. No. 89], Defendant's Reply to Plaintiff's Response [Doc. No. 112], and Plaintiff's Surreply [Doc. No. 126]. For the reasons stated herein, this Court hereby GRANTS IN PART, AND DENIES IN PART the Defendant's Motion For Summary Judgment and DENIES Plaintiff's Motion For Summary Judgment.

BACKGROUND

Plaintiff, Daniel Schrieber, was employed by the Defendant, Federal Express Corporation (hereinafter “FedEx”) for nearly 25 years before being terminated in December, 2008. [Doc. No. 89-6, pg. 4] Schrieber was terminated after FedEx alleged Schrieber accrued three (3) disciplinary actions in one (1) year. Under a FedEx internal policy, once an employee is given three (3) disciplinary actions in a twelve (12) month period, that employee is usually subject to termination. FedEx has two different forms of written discipline that count towards an employee's termination: a “performance reminder”, issued for performance issues, and a “warning reminder”, issued for conduct violations. Plaintiff's written disciplinary actions were given on November 6, 2007, July 24, 2008, and December 17, 2008. FedEx also allows managers to issue non-disciplinary counselings (known as “written counselings” or “OLCC's”) which do not count as one of the three allowable disciplinary actions.

From September 19, 2008, to November 14, 2008, Schrieber took approved leave time pursuant to the Family Medical Leave Act (hereinafter “FMLA”). Defendant contends that the Plaintiff's leave was listed as both short term disability leave and FMLA leave. During the time Schrieber was on leave his “active” year, in which his disciplinary actions could accrue, was tolled. Therefore, even though Schrieber's disciplinary's actions did not all occur during the same calendar year, FedEx counted the last discipline against him in making the decision to terminate his employment because his disciplinary time frame was extended for the amount of time he was on leave.

There is no dispute that had the consideration period not been extended for the duration of his leave, the last disciplinary action would not have counted against Schrieber and would not have resulted in termination. Under FedEx's internal policies, FMLA and short term disability leave among other specified types of leave, for any duration, cause the time for disciplinary actions to toll. However, if leave is taken as vacation time or sick leave, the disciplinary time is not extended.

At the time Schrieber was terminated, he was 53 years old. Schrieber makes allegations that his supervisor at FedEx, Attila Koscardy, made derogatory comments regarding his ability to properly perform his job functions because of his age such as, “the older we get the harder it is to do our job”, and “I'm sure it's hard for a man your age to get up this early in the morning.” [Doc. No. 89-13, pg. 280-283]. Koscardy hired the Plaintiff to be an operations manager in July, 2006. At that time he was hired into this management position, Schrieber was 51 years old and Koscardy was 49 years old.

On July 30, 2008, Schrieber filed an internal complaint with FedEx regarding his complaints of age discrimination. [Doc. No. 89-25] FedEx received that complaint on August 8, 2008. [Doc. No. 89-24, pg. 11] FedEx then completed an investigation of Schrieber's complaint which included interviewing Koscardy. [Doc. No. 89-23] Schrieber left for medical leave on September 19, 2008. On October 15, 2008, the Plaintiff was given a light-duty return to work from his physician allowing him to return to work with certain, standing, bending, and lifting restrictions. Schrieber requested he be able to return to FedEx under a restricted work schedule. Schrieber agreed that he could not manage the operational aspect of his job with his limited restrictions for more than two (2) hours and that it would be best if there was a co-manager assigned to work with him. FedEx declined his request to return on a restricted basis and did not allow him to return until he could effectively perform his job duties. Schrieber returned to work full time on November 15, 2008.

On November 24, 2008, Plaintiff received a written “counseling” from Koscardy because a container was allegedly overlooked under Plaintiff's supervision. Defendant alleges Plaintiff had another “operational failure” on December 8, 2008, which resulted in misplacement of a container under his supervision. On December 10, 2008, Plaintiff was suspended pending an investigation into another disciplinary action regarding the Plaintiff. [Doc. No. 89-6, pg. 52] On December 15, 2008, at the earliest ¹, Koscardy was given a counseling memo and discipline from FedEx regarding incidents that occurred during Koscardy's supervision and addressing various complaints surrounding his management and handling of employees. [Doc. Nos. 89-109 and 89-110] The Plaintiff's employment was terminated by Koscardy on December 17, 2008. Defendant states he was replaced by an employee who is 51 years old.

DISCUSSION

Summary judgment is proper where the pleadings depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. An issue of fact is “genuine” if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “material” if proof thereof might affect the outcome of the lawsuit as assessed from the controlling substantive law. Id. at 249, 106 S.Ct. 2505.

In considering a motion for summary judgment, this court must examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir.1988).

I. FAMILY MEDICAL LEAVE ACT (FMLA)

A. Interference Claims

For an employee to prevail on a claim of interference with (or deprivation of) a substantive right granted by the FMLA pursuant to 29 U.S.C. § 2615(a)(1), he must merely demonstrate by a preponderance of the evidence entitlement of the right; the employer's intent is immaterial. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir.2002). “To make out a prima facie claim for FMLA interference, a plaintiff must establish (1) that he was entitled to FMLA leave, (2) that some adverse action by the employer interfered with his right to take FMLA leave, and (3) that the employer's action was related to the exercise or attempted exercise of his FMLA rights.” Jones, 427 F.3d at 1319 citing Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 877 (10th Cir.2004).

Schrieber raises two claims of interference with his FMLA rights. Initially, he argues in his Motion For Partial Summary Judgment that by extending his disciplinary period for the length of time he was on FMLA leave, the Defendant has improperly used his FMLA against him. Use of FMLA leave as a negative factor in employment actions is prohibited:

(c) The Act's prohibition against “interference” prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. See § 825.215.

29 C.F.R. § 825.220(c)

Several Courts have addressed the issue of whether extending a disciplinary period for the length of time an employee is on FMLA leave constitutes a “negative factor” in an employment action such that it violates the FMLA. In Caskey v. Colgate-Palmolive Co., 438 F.Supp.2d 954, 969 (S.D.Ind.2006), the Court held that the “disciplinary processes serve as probationary periods to review employee performance.” Id. The Court determined that the employer was “entitled to review an employee's on-the-job performance for the full specified period, not merely for that period reduced by several weeks of absences.” Id. “The FMLA does not require an employer to cut short an otherwise justified probationary period simply because an employee has taken FMLA-protected leave.” Id. Other Court have come to the same conclusion. See Sawyer v. Ball Corp., 151 F.3d 1030, 1998 WL 322678, *2-3 (4th Cir.1998) (unpublished); Thompson v. Memorial Hosp. Of Carbondale, 2007 WL 419792, *4 (S.D.Ill.2007) (unpublished)(“Plaintiff's probationary period was not extended, rather, Plaintiff took FMLA leave before the probationary period was over, thus, he never completed his...