Shoemaker v. Conagra Foods, Inc.

Decision Date09 November 2016
Docket NumberNo. 2:14–CV–153,2:14–CV–153
Parties Tracy SHOEMAKER, Plaintiff, v. CONAGRA FOODS, INC., Defendant.
CourtU.S. District Court — Eastern District of Tennessee

Charlton R. DeVault, Jr., Law Office of Charlton R. Devault, Jr., Kingsport, TN, for Plaintiff.

Hillary L. Klein, Husch Blackwell LLP, Chattanooga, TN, for Defendant.



Plaintiff Tracy Shoemaker sued her former employer for interference and retaliation under the Family Medical Leave Act ("FMLA"), disability discrimination under the Americans with Disabilities Act ("ADA"), and gender discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"). Defendant ConAgra Foods, Inc. ("ConAgra") has filed a motion for summary judgment [Doc. 41] arguing that all of plaintiff's claims should be dismissed as a matter of law. The parties have filed extensive briefs and supporting documentation in support of and in opposition to the pending motion [Docs. 42, 56, 57, 60, 67, 68, 79], which the Court has carefully reviewed.

For the reasons set forth herein, the defendant's motion for summary judgment will be GRANTED in part and DENIED in part .

I. Supplemental Briefing

Before addressing the merits of the pending motion, the Court finds it necessary to address the issues raised in plaintiff's supplemental brief [Doc. 79]. Plaintiff complains bitterly about the Court's prior decision [Doc. 78] to strike her original 23–page supplemental brief [Doc. 75] and restrict her to the 5–page requirement of E.D. Tenn. L.R. 7.1(d) [see Doc. 79]. Despite being granted leave to re-file a supplemental brief in compliance with Rule 7.1(d), plaintiff contends that this page limitation is unfair, contrary to Seay v. TVA , 339 F.3d 454 (6th Cir. 2003), and (inexplicably) in violation of her 5th Amendment rights and her right to equal protection under law [Doc. 79 at pp. 3–4]. Indeed, three and a half pages of her five-page revised supplemental brief are devoted to the unfairness of being required to follow the rules rather than addressing the merits of her arguments.

The Court first notes that there is no constitutional right to file a supplemental brief nor has plaintiff cited any authority for such. Seay explains that Fed. R. Civ. P. 56(c) affords a nonmoving party an opportunity to respond to the moving party's summary judgment arguments and that the purpose of this rule extends to situations "where the moving party submits in a reply brief new reasons and evidence in support of its motion for summary judgment." Id. at 481. However, " Seay only mandates that the district court provide an adequate opportunity to respond, not an indefinite opportunity to respond." Key v. Shelby Cty. , 551 Fed.Appx. 262, 265 (6th Cir. 2014). More importantly and in contrast to Seay , plaintiff has been granted (twice) the opportunity to file a supplemental brief. Thus, she has requested and received an opportunity to respond to defendant's reply brief before the Court's ruling on summary judgment and that is all that Seay requires.

Further, plaintiff's complaints as to the page limitations imposed by L.R. 7.1 strain credulity. In response to ConAgra's summary judgment motion, plaintiff filed a 25–page brief [Doc. 56], a 42–page affidavit with supporting exhibits [Doc. 57], and a 10–page response to ConAgra's statement of facts [Doc. 60]. Plaintiff did not request an extension of the 25–page briefing limit in L.R. 7.1(a), although she has arguably done an end-run around the rule by filing multiple pleadings. Similarly, plaintiff did not request an extension of the 5–page limit before filing her supplemental brief. Thus, her complaints about responding in the "limited space available" fall short.

Finally, the Court notes that part of the difficulty in sifting through this back-and-forth comes from the lack of specificity in plaintiff's complaint, of which defendant has complained. A fair reading of defendant's opening summary judgment brief is that it attempts to address the claims and theories that defendant believes plaintiff may be asserting [see Doc. 42 at pp. 8–9]. After receiving plaintiff's responsive pleading which asserts arguments not addressed in defendant's opening brief, it is not surprising that defendant's reply brief contains "new" arguments and evidence to respond to plaintiff's arguments. As noted, plaintiff was granted leave to respond to defendant's new evidence and arguments. Nothing in Seay , the Federal Rules, or this Court's Local Rules provide an unlimited opportunity to respond or for indefinite briefing. Accordingly, to the extent that plaintiff's revised supplemental response [Doc. 79] can be construed as a motion for relief from the rules applicable to all parties, her motion is DENIED .

II. Relevant Facts

Ms. Shoemaker worked for ConAgra for twelve years as a process technician/machine operator at the company's plant in Cocke County, Tennessee [Doc. 57 at ¶¶ 2–3]. Ms. Shoemaker is married to Bruce Shoemaker and they are the parents of two children [Id. at ¶ 1]. In July 2012, plaintiff was terminated from her position at ConAgra for violation of the company's attendance policy [Doc. 1 at ¶ 25; Doc. 41–2 at ¶ 4].

Under ConAgra's attendance policy, employees accumulate one attendance point per day for absences not covered by the FMLA or otherwise protected by law unless the employee brings in a doctor's note [Doc. 41–3]. If an employee brings in a doctor's note for a continuous period of absence of less than five days, the employee receives only one attendance point for the entirety of the absence. For example, an employee who was absent for four consecutive days and provided a doctor's note would only receive one attendance point instead of four points. If the absence was covered by the FMLA or otherwise protected by law, the employee would not receive any attendance points. An employee who does not accumulate any attendance points within a full calendar month gets his/her total attendance point balance reduced by one point (a.k.a. a "perfect attendance point reduction"). An employee who accumulates ten or more attendance points is subject to termination.

Plaintiff states that she suffers from a painful back condition for which she periodically seeks chiropractic and medical treatment [Doc. 57 at ¶ 4]. Plaintiff's husband suffers from degenerative bone disease

and has been disabled since 2004 [Id .]. Since 2004, plaintiff took intermittent FMLA leave from her job at ConAgra to care for her disabled husband [Id. at ¶ 5]. The physical exertion required to care for her husband occasionally injured plaintiff's back and she has taken FMLA leave to recuperate [Id. at ¶ 12]. Plaintiff periodically discussed her husband's disability with members of ConAgra's Human Resources ("HR") staff and the HR staff handled her requests for FMLA leave [Id. at ¶¶ 5–6]. Plaintiff further claims that her back condition is a disability [Doc. 41–1 at p. 11]. At all relevant times, it is undisputed that plaintiff did not have any work restrictions on lifting and could lift 50 pounds as required by her position [Doc 41–1 at pp. 18, 21–22].

Plaintiff claims that she took FMLA leave to care for her husband between 2005 and 2007, and again in 2010 [Doc. 41–1 at p. 3]. Her attendance record reflects that some of her FMLA absences are related to her husband, but some dates simply indicate that it was an unspecified FMLA absence [Doc. 41–4]. It is unclear whether all of those unspecified FMLA absences were for plaintiff's own serious health condition or otherwise. For example, plaintiff took FMLA leave to care for her daughter after surgery to remove her tonsils and adenoids in December 2011, but plaintiff's attendance record designates those days as FMLA leave without further explanation as to the reason for the absence [Doc. 57 at ¶ 13; Doc. 41–4 at p. 2].

At the beginning of 2012, plaintiff had 6.75 attendance points. Plaintiff received the following attendance points and point reductions in 2012 as follows:

                • February 5, 2012     +1.0 point (for a total of 7.75 points)
                • March 31, 2012       -1.0 point reduction for perfect attendance (for a
                                       total of 6.75 points)
                • April 5, 2012        +1.0 point (for a total of 7.75 points)
                • May 9, 2012          +0.5 point (for a total of 8.25 points)
                • May 24, 2012         +1.0 point (for a total of 9.25 points)
                • June 4, 2012         +0.5 point (for a total of 9.75 points)
                • June 11, 2012        +1.0 point (for a total of 10.75 points)

[Doc. 41–2 at ¶ 9; Doc. 41–4]. Defendant notes that plaintiff's attendance report shows that she missed more than 40 days between January and June 2012 for which she was not assessed attendance points (FMLA leave, paid sick leave, paid personal leave, or absence with a doctor's note) [Doc. 41–2 at ¶ 10]. The only attendance point in dispute is the one for plaintiff's April 5, 2012 absence, and the corresponding failure to benefit from a perfect attendance point reduction for the month of April 2012 [Doc. 41–1 at p. 16].

Liberty Life Assurance Company of Boston1 is the FMLA administrator for ConAgra [Doc. 41–1 at p. 17; Doc. 19 at p. 2]. In early April 2012, plaintiff missed work due to a "back re-injury" sustained while caring for her husband [Doc. 57 at ¶ 14]. Plaintiff was required to and did telephone ConAgra's "Attendance Hotline" number to advise ConAgra that she would be absent [Id. ]. Plaintiff then telephoned Liberty Life to verbally request FMLA leave for her absences from April 2, 2012 through April 6, 2012 [Id. at ¶¶ 14–15]. After receiving the FMLA certification documents from Liberty Life, ConAgra employees were supposed to fill out the employee section and then have the health care provider complete the documents and fax them to Liberty Life [Id. at ¶ 14]. The record reflects that Liberty Life sent the FMLA medical certification form to plaintiff on April 9, 2012 for completion and that she had requested leave ...

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