Summerville v. Esco Co. Ltd. Partnership

• Decision Date: 12 May 1999
• Docket Number: No. 1:98-CV-412.,1:98-CV-412.
• Citation: 52 F.Supp.2d 804
• Parties: James P. SUMMERVILLE, Plaintiff, v. ESCO COMPANY LIMITED PARTNERSHIP, Defendant.
• Court: U.S. District Court — Western District of Michigan

52 F.Supp.2d 804

James P. SUMMERVILLE, Plaintiff, v. ESCO COMPANY LIMITED PARTNERSHIP, Defendant.

No. 1:98-CV-412.

United States District Court, W.D. Michigan, Southern Division.

May 12, 1999.

COPYRIGHT MATERIAL OMITTED

Nelson P. Miller, Fajen & Miller, Grand Haven, for James P. Summerville, pltfs.

Martha W. Atwater, Warner, Norcross & Judd, LLP, Grand Rapids, for ESCO Company Limited Partnership, defts.

OPINION

QUIST, District Judge.

Plaintiff, James P. Summerville ("Summerville"), has sued Defendant, ESCO Company Limited Partnership ("ESCO"), alleging that ESCO wrongfully discharged him from his employment with ESCO for taking an absence authorized by the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 to 2654 ("FMLA"), and wrongfully retaliated against him for taking an absence authorized by FMLA. This matter is before the Court on ESCO's Motion for Summary Judgment.

Facts

Summerville was hired by ESCO in 1977. Within a few months at ESCO, Summerville began running a kettle and centrifuging chemicals, a position he would keep for almost 20 years. (See Summerville Dep. at 25-27, Pl.'s Br. Ex. A.) ESCO operates its chemical operations plant 24 hours a day and divides its shifts such that each employee works three twelve hour days in a row and then has three days off. (See id. at 32-33.) Summerville was part of a team of eight to ten chemical operators on his shift, although the chemical operators typically work in three person crews (See id. at 47.)

ESCO's unique shift schedule and the small crew size intensified the significance of each employee absence. (See Bosma Dep. at 50-51, 97-98, 103-05, Pl.'s Br. Ex. A.) Summerville agrees that the job was very difficult if someone from the crew was absent and not replaced. (See Summerville Dep. at 47.) ESCO attempted to encourage good attendance through an incentive program that awarded employees who had no tardies or unexcused absences over a quarterly cycle with a "bonus" paid holiday. (See id. at 95-96; see also Ego Dep. at 9-11, Pl.'s Br. Ex. A.) To implement this program, ESCO's payroll department tracks employee absences and notes whether the absence is "pre-arranged," "excused," or "unexcused." (Bosma Dep. at 23-29.)

ESCO did not have a formal attendance policy, other than a general prohibition on excessive absenteeism. (See id. at 50.) ESCO did not define what constituted excessive absenteeism. (See id. at 50; see also Sheffer Dep. at 49-50, 68, Pl's Br. Ex. A.) However, ESCO had a custom of issuing warning letters to employees with attendance problems, warning the employee that continued absences could result in suspension or termination. (See Bosma Dep. at 60; see also Sheffer Dep. at 20-21.)

Summerville had received at least two warning letters concerning his attendance prior to 1995, but had improved his attendance after receipt of the letters. (See Summerville Dep. at 57-58.) Summerville testified that each time he received a warning letter, he "watched [his] attendance real close." (Id. at 99.) In January of 1995, Summerville received another warning letter because he had five absences in a two month period. (See Memorandum of 1/24/95, Def.'s Br. Supp. Ex. G.) Summerville continued to have some unexcused absences, as payroll records indicate seven unexcused absences between the January 1995 warning letter and the beginning of his heel spur problems in January of 1996. (See Attendance Records, Def.'s Br. Supp. Ex. H.)

Summerville began suffering problems with a bone spur in his heel in January of 1996. On January 21, 1996, Summerville left work early to visit a doctor because he "couldn't hardly even walk on" his heel. (See Summerville Dep. at 75-77.) Summerville received a cortisone shot from the doctor, and brought in a doctor's slip when he returned to work the following day. (See id. at 65; see also Medical Report of 2/28/96, Pl.'s Br. Ex. D.) Summerville worked for approximately two weeks without incident, but had unexcused absences February 6, 7, and 8, as a result of the flu. (See Summerville Dep. at 67-68.) Summerville then went to his doctor on February 28, a day off, and had a second cortisone injection. (See Medical Report of 2/28/96, Pl.'s Br. Ex. D.)

The day after the second cortisone injection, February 29, 1996, Summerville felt a snap in his heel, following which he returned to his doctor, who excused him from work through March 2. (See Medical Report of 2/29/96, Pl.'s Br. Ex. D.) Summerville called in to work and said he would not be at work that week, and called again on March 5, 1996, after returning to his doctor and obtaining another doctor's slip to cover March 6-8. (See Medical Report of 3/5/96, Pl.'s Br. Ex. D; Summerville Dep. at 84, 88.)

Upon returning to work on March 12, 1996, Summerville presented ESCO with the two doctor's slips. (See Bosma Dep. at 56, 100-01.) The same day, ESCO presented Summerville with a warning letter that had been prepared on March 1, 1996, reprimanding Summerville for poor attendance. (See Ego Dep. at 12; 3/1/96 Memorandum, Def.'s Br. Supp. Ex. I.)

Summerville alleges that the plant manager and foreman demoted Summerville immediately after his return from FMLA-protected leave from his job running a kettle and centrifuging chemicals down to sweeping the floor and packaging chemicals. Summerville testified that nobody had ever been assigned the job of sweeping the plant floor until this point and that the plant manager and foreman were simply giving him "[e]very shit job they could think of." (Summerville Dep. at 41.) Summerville also stated that his plant manager and foreman told him he was being taken off the centrifuge because of his absences. (See id. at 104.)

When pressed for specific examples of how his job duties were curtailed after his return from FMLA-protected leave, Summerville stated that he was asked to sweep the floor each day and dry and package chemicals. (See id. at 41-42, 49-50.) Summerville admitted that he had to sweep the floor on occasion prior to taking the FMLA-protected leave, and that he had dried and packaged chemicals before. (See id. at 49-50.) However, he said these tasks were not a regular part of his daily responsibilities prior to the FMLA-protected absence. (See id.) After returning from his FMLA-protected absence, Summerville also acted as a backup to other employees who were absent or on vacation. (See id. at 46.) Eventually, Summerville was moved to a permanent position comparable to his job as a centrifuger after another employee left in May of 1996. (See id. at 50.)

Summerville did not have any additional absences until August 1996. He saw his doctor four more times in August and September 1996, receiving an additional cortisone injection. (See id. at 93, 101; Medical Report of 9/6/96, Pl.'s Br. Ex. D.) Summerville had ten unexcused absences between August 1996 and January 1997, although several of these absences related to Summerville contracting the flu, during which time ESCO admits it would not have wanted Summerville to work. (See Attendance Report, Def.'s Br. Supp. Ex. H; Sheffer Dep. at 30-31, 33-34.) Summerville was terminated on January 7, 1997.

Standard

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. See id. at 248, 106 S.Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. See id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. See id. at 251, 106 S.Ct. at 2511 (citing Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)). The summary judgment standard mirrors the standard for a directed verdict. See id. at 250, 106 S.Ct. at 2511. The only difference between the two is procedural. See id. Summary judgment is made based on documentary evidence before trial, and directed verdict is made based on evidence submitted at trial. See id.

A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with "concrete evidence" that there is a genuine issue of material fact for trial. Id.; see also Frank v. D'Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992)(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

Analysis

FMLA prohibits employers from discriminating against employees for exercising their rights provided by FMLA. See 29 U.S.C. § 2615(a)(1). Regulations promulgated by the Secretary of Labor specifically provide that "employers cannot use the taking of FMLA leave as a negative factor in employment actions ... nor can FMLA leave be counted under `no fault' attendance policies." 29 C.F.R. § 825.220(c). The Sixth Circuit has not yet addressed how claims of discrimination resulting from the exercise of rights under FMLA are...