Thompson v. Ugl Unicco Serv. Co. D/B/A Ugl Unicco

• Decision Date: 29 October 2010
• Docket Number: No. 09–1106.,09–1106.
• Citation: 750 F.Supp.2d 907
• Parties: Richard A. THOMPSON, Plaintiff,v.UGL UNICCO SERVICE COMPANY d/b/a UGL Unicco, Defendant.
• Court: U.S. District Court — Western District of Tennessee

750 F.Supp.2d 907

Richard A. THOMPSON, Plaintiff,
v.
UGL UNICCO SERVICE COMPANY d/b/a UGL Unicco, Defendant.

No. 09–1106.

United States District Court, W.D. Tennessee, Eastern Division.

Oct. 29, 2010.

[750 F.Supp.2d 909]

William Lewis Jenkins, Jr., Wilkerson Gauldin Hayes & Jenkins, Dyersburg, TN, for Plaintiff.James R. Mulroy, II, Pamela R. Irons, Jackson Lewis LLP, Memphis, TN, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT J. DANIEL BREEN, District Judge.INTRODUCTION

The Plaintiff, Richard A. Thompson, initially brought this action against the Defendant, UGL Unicco Service Company d/b/a UGL Unicco (“UGL Unicco”) on April 30, 2009. In his amended complaint filed May 29, 2009, Thompson alleged violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”) and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”). The Plaintiff also asserted state law claims of retaliatory discharge and violation of the Tennessee Disability Act, Tennessee Code Annotated § 8–50–103 (“TDA”),¹ and the Tennessee Human Rights Act, Tennessee Code Annotated § 4–21–101, et seq. (“THRA”). Before the Court is the Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

STANDARD OF REVIEW

Rule 56 provides in pertinent part that a “... judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Canderm Pharmacal, Ltd. v. Elder Pharm., Inc., 862 F.2d 597, 601 (6th Cir.1988). “The district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.” American Civil Liberties Union of Ky. v. Grayson County, Ky., 591 F.3d 837, 843 (6th Cir.2010), reh'g denied, 605 F.3d 426 (6th Cir.2010) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). However, to successfully oppose a summary judgment motion, “there must be evidence on which the jury could reasonably find for the plaintiff.” Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994) (quoting

[750 F.Supp.2d 910]

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)); see also Paul E. Volpp Tractor Parts, Inc. v. Caterpillar, Inc., 917 F.Supp. 1208, 1223 (W.D.Tenn.1995). “When the moving party has carried its burden under Rule 56, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356 (citation & internal footnote omitted). “In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Id. at 587, 106 S.Ct. at 1356 (citation omitted) (emphasis in original). “A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of essential elements of a cause of action or defense asserted by the parties, and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties.” Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 469 (6th Cir.2007), reh'g en banc denied (Jan. 10, 2008) (citation omitted). “Entry of summary judgment is appropriate ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ ” In re Morris, 260 F.3d 654, 665 (6th Cir.2001) (quoting Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548).

FACTS

The following material facts are undisputed for purposes of the instant motion unless otherwise indicated. UGL Unicco provides maintenance to clients in various markets throughout the nation. The Defendant renders services to a client identified as Poly One, a resin manufacturer, at facilities in Dyersburg and Halls, Tennessee. (Decl. of Glisette Soltero (“Soltero Decl.”) §§ 1–2, 4.) Thompson began working at the Dyersburg location in July 2006. (1st Am. Compl. ¶ 8.) He had suffered from Type I diabetes since 1979, when he was in his early twenties, and was insulin-dependent. ( Id. ¶ 9.) The Plaintiff advised the Defendant of his diabetes at the time of his hiring and was told the employer would work with him. (Dep. of Richard A. Thompson (“Thompson Dep.”) at 116.)

Initially, he worked at UGL Unicco in inventory logistics on the second shift. ( Id. at 116–17.) In November 2006, Thompson applied for and was awarded a computer-related position on the first shift at the Halls facility. ( Id. at 116–18.) In February 2007, the Plaintiff contacted Beth Feger, who had interviewed him at the Dyersburg location, and requested a transfer back to Dyersburg, which was granted. ( Id. at 123.) Upon his return, he worked as a material handler and in inventory logistics on the third shift, where he worked for over a year. ( Id. at 123–24, 126–27.)

In March 2008, Thompson developed a blister on his right foot associated with wearing steel-toed boots at work. ( Id. at 155–56.) He was treated by podiatrist William M. Steely, D.P.M. and was taken off work. ( Id.) The parties do not dispute that the Plaintiff received workers' compensation benefits during this period. (Pl.'s Resp. to Statement of Undisputed Material Facts ¶ 29.) The Dyersburg site manager, Charles Nicholas Morris, arranged for him to come to the plant and perform computer work while the foot healed. (Thompson Dep. at 156–57.)

On May 23, 2008, the Plaintiff complained to Morris of a painful toe on his left foot from the shoes. ( Id. at 164–66.) Morris advised him to see the doctor and Thompson was again treated by Dr. Steely and taken off work. ( Id. at 166–67; Dep. of Charles Nicholas Morris (“Morris

[750 F.Supp.2d 911]

Dep.”) at 35; Dep. of William M. Steely, D.P.M. (“Dr. Steely Dep.”) at 29, 35.)

According to Thompson's deposition, he returned to the plant to inform Morris of Dr. Steely's plan. (Thompson Dep. at 167.) The Plaintiff recalled, “On that day [ (May 23, 2008) ] I told Nick that Dr. Steely is going to take me off work because of the blister. I said, do you want to do workmen's comp? I said, whatever you want to do. I said, I know it's slow. I said, you know, if layoff until my foot heals ... I said, do you want to file workmen's comp or I know business is slow, I do what would benefit the company.” ( Id. at 167–68.) Thompson knew he did not have to take a layoff. ( Id. at 168.) A reduction in force would not have resulted in him being laid off due to his seniority status. (Morris Dep. at 35.) The Plaintiff testified in his deposition that Morris told him he would get back to him and later called to ask if he would take the layoff. (Thompson Dep. at 175.) In his declaration, Thompson averred that when he had been temporarily laid off on previous occasions, he had returned to the same job on the same shift at the same pay. (Thompson Decl. ¶ 14.) He assumed he would again return to the same job, although Morris did not say so. ( Id. ¶ 17.) According to Morris, when the Plaintiff agreed to take a layoff, there was no guarantee of a job opening when he was ready to come back to work. (Morris Dep. at 34.)

Thereafter, the Plaintiff checked in with the site manager periodically to see how business was going. (Thompson Dep. at 172.) When he was released to return to work by Dr. Steely, he met with Morris on June 13, 2008. ( Id. at 176.) Morris advised him there was an opening on the third shift beginning Monday, June 16.( Id.) Thompson expressed his desire to work the first shift instead of the third, but said he would work the third shift if he had to and accepted the offer. ( Id. at 176, 248.) After pondering the matter over the weekend, the Plaintiff asked Morris why he was put on the third shift instead of one of two other individuals over whom he had seniority. ( Id. at 176.) Morris told him he would call him back. ( Id. at 176–77.) The Plaintiff obtained paperwork from Ralph Goodman, M.D., his endocrinologist, dated June 27, 2008, in which the doctor opined that Thompson's diabetes was much better controlled when he worked the first shift and requested he be permanently assigned to that shift. ( Id. at 178; Dep. of Ralph Goodman, M.D. (“Dr. Goodman Dep.”), Ex. 1.) The paperwork was forwarded to the Defendant. (Thompson Dep. at 178.) Thompson acknowledges, however, that he could work the third shift. ( Id.) The Plaintiff never received a callback from Morris and found out later he had been terminated. ( Id. at 177.) The Plaintiff ultimately applied for and, in February 2009, received workers' compensation benefits in connection with the right toe. ( Id. at 172.)

POSITIONS OF THE PARTIES AND ANALYSIS FMLA Claim.

The FMLA creates a private right of action entitling eligible employees to seek relief from an employer for interfering, restraining or denying the exercise of rights under the statute. Mitchell v. Chapman, 343 F.3d 811, 826 (6th Cir.2003), cert. denied, 542 U.S. 937, 124 S.Ct. 2908, 159 L.Ed.2d 813 (2004). “Employer” is defined under the statute as “any person engaged in commerce or in any industry or activity affecting commerce who employs [fifty] or more employees for each working day during each of [twenty] or more calendar workweeks in the current or preceding calendar year.” 29 U.S.C. § 2611(4)(A)(i). One is not an “eligible employee” for purposes of the FMLA if he is “an employee

[750 F.Supp.2d 912]

of an employer who is employed at a worksite at which such employer employs less than [fifty] employees if the total number of employees employed by that employer within [seventy-five] miles of that...