Volking v. Airxcel, Inc.
| Decision Date | 28 April 2023 |
| Docket Number | 22-1046-DDC-KGG |
| Parties | CHRIS T. VOLKING, Plaintiff, v. AIRXCEL, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Defendant Airxcel, Inc. employed plaintiff Chris Volking in various positions starting in 2010. After sustaining a workplace injury at defendant's warehouse in 2017, plaintiff filed a worker's compensation claim. Later, defendant's insurer investigated plaintiff's activity. After receiving video of plaintiff walking and jogging plaintiff's doctors sent letters to the insurer withdrawing their treatment. Defendant then assigned plaintiff to a different position in its warehouse that complied with the restrictions prescribed by his doctor. The parties later settled plaintiff's worker's compensation claim. In 2020, when the COVID-19 pandemic caused the warehouse to shut down temporarily, defendant reorganized its operation and eliminated plaintiff's position as part of a reduction in force.
Plaintiff brings a single claim against defendant. It asserts that defendant wrongfully terminated plaintiff's employment as retaliation for him filing a worker's compensation claim violating his rights under the Kansas Worker's Compensation Act, Kan. Stat. Ann. §§ 44-50165. Plaintiff claims that defendant's executives had exhibited malice against him since he filed his worker's compensation claim in 2017, and that defendant used a reduction in force plan enacted during the pandemic as a pretext to get rid of him.
In January 2022, plaintiff initially filed his retaliation claim against defendant in Sedgwick County, Kansas, District Court. See Doc. 1-1 at 2. The following month, defendant removed the case from Kansas state court to this court (Doc 1),[1] and now has filed a Motion for Summary Judgment (Doc. 23) against plaintiff's claim. Plaintiff responded (Doc. 28) and defendant replied (Doc. 35), so the matter is fully briefed. For reasons explained below, the court grants defendant's motion.
The following facts either are stipulated in the Pretrial Order (Doc. 22), uncontroverted, or where genuinely controverted, viewed in the light most favorable to plaintiff-the party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378-80 (2007).
Defendant designs and manufactures components for recreational vehicles. Doc. 22 at 2 (Pretrial Order ¶ 2.a.1.). Defendant's RV Products division operates a facility and warehouse in Wichita, Kansas, where it manufactures rooftop air conditioning units. Id. (Pretrial Order ¶ 2.a.2.). Plaintiff began working for the RV Products division in 2010 and had held a number of positions during his employment there. Id. (Pretrial Order ¶¶ 2.a.3.-4.). In June 2017, plaintiff worked as a “lead” in the warehouse. Doc. 28-1 at 21-22 (Volking Dep. 64:6-17, 67:1-16). On June 15, 2017, a stack of pallets fell from the back of a truck onto plaintiff, knocking him unconscious and injuring him. Id. at 30, 46-47 (Volking Dep. 69:9-23, 70:10-71:16); see also Doc. 22 at 3 (Pretrial Order ¶ 2.a.9.). After the accident, plaintiff complained of a head injury causing migraine headaches. Doc. 28-4 at 2. Plaintiff submitted a worker's compensation claim in June 2017. Doc. 22 at 3 (Pretrial Order ¶ 2.a.9.).
In September 2017, plaintiff returned to work at RV Products. Id. (Pretrial Order ¶ 2.a.10.). When he returned, plaintiff was subject to Neurologist Eva Henry's prescribed restrictions. Id.; see also Doc. 28-1 at 58-59 (Volking Dep. 77:1-78:17). On the day he returned to work, plaintiff left early because of his migraines. Doc. 28-1 at 62-63 (Volking Dep. 80:23-81:20). Plaintiff left work early for the same reason later that week, after which Dr. Henry again placed him on leave. Id. at 64 (Volking Dep. 84:8-25).
At the time of plaintiff's injury, defendant contracted with The Hartford as its worker's compensation insurance carrier. Doc. 24-4 at 2. In November and December 2017, The Hartford investigated plaintiff by observing him outside his home and in public. Id. at 2, 4. During the investigation, The Hartford's investigator recorded video of plaintiff “as he added and removed layers of clothing, stretched, walked, jogged, and entered, exited, and operated a motor vehicle.” Id. at 4. In January and February 2018, The Hartford sent plaintiff's treating physicians a copy of the surveillance report and video. Doc. 28-4 at 2; Doc. 24-5 at 2. Dr. Henry responded that, based on the video, she “would assume that [plaintiff] no longer wish[ed] to seek treatment, whether or not he has reached [maximum medical improvement (MMI)]” and that she didn't “recommend any future medical care.” Doc. 28-4 at 2. Dr. John Ciccarelli, who had started treating plaintiff for complaints of neck, back, and leg pain, also responded that he could “no longer recommend the previously proposed surgery or any other treatment as medically necessary as it relates to his subjective spinal and leg complaints.” Doc. 24-5 at 2.
The Hartford provided defendant with Dr. Ciccarelli's letter. Doc. 24-2 at 3 (Kohr Decl. ¶ 7). On February 20, 2018, plaintiff met with Kristine Kohr, RV Products' human resources manager, to discuss his return to work. Id. (Kohr Decl. ¶¶ 8-9). During the meeting, Ms. Kohr explained to plaintiff that his physicians released him to return to work. Id. (Kohr Decl. ¶ 9). Plaintiff responded that, if he returned to full duty, “he would be going to the hospital in two weeks.” Id. Defendant placed plaintiff on leave for a week while it investigated the issues in Dr. Ciccarelli's letter. Id. (Kohr Decl. ¶ 10). Three days later, defendant received Dr. Henry's letter reporting that she had released plaintiff from her care, as well. Doc. 24-2 at 3 (Kohr Decl. ¶ 11).
On February 27, 2018, plaintiff met with Ms. Kohr and Robin Leach, RV Products' president, to discuss again plaintiff's return to work. Id. (Kohr Decl. ¶ 12). At that meeting, plaintiff signed a Work Agreement with defendant. Doc. 22 at 3 (Pretrial Order ¶ 2.a.11.). That agreement transferred plaintiff to the warehouse working in the role of inventory control/shipping quality inspector on second shift. Id. It also retained his regular pay rate. Id. The new role restricted plaintiff's activities at work, forbidding climbing, using a forklift and pallet jack, lifting more than 15 pounds, and “excessive bending or twisting.” Doc. 24-6 (Def.'s Ex. 6). A doctor later prescribed the same restrictions-plus a few others-when releasing plaintiff for work in June 2018. See Doc. 24-8 (Def.'s Ex. 8). Plaintiff's role as inventory control/shipping quality inspector required him to check products for leaks, write rejection tags for damaged units, and verify the stock count against paperwork to ensure accuracy. Doc. 22 at 3 (Pretrial Order ¶ 2.a.12.).
In the same February meeting, defendant issued plaintiff a Correction Action Procedure, Written Notice-Step 1. Doc. 24-2 at 4 (Kohr Decl. ¶ 15). Defendant issued the written notice based on the correspondence from plaintiff's treating physicians reporting that the activities they viewed in the surveillance video were “not consistent with [plaintiff's] reported pain and functional level[.]” Id.
Plaintiff settled his worker's compensation case with defendant on November 25, 2019. Doc. 22 at 3 (Pretrial Order ¶ 2.a.13.). In the settlement, plaintiff received $27,238 in compensation. Id. Plaintiff continued his employment with RV Products as inventory control/shipping quality inspector after his case settled. Id.
In March 2020, the RV Products facility in Wichita shut down temporarily in response to the COVID-19 pandemic. Id. (Pretrial Order ¶ 2.a.14.). Defendant provided written notice to its employees there, including plaintiff, that the company was placing them all on furlough. Id.; see also Doc. 24-10 (Def.'s Ex. 10). That written notice told employees that the “unpaid shutdown will initially be from March 25th to April 7th, potentially longer, pending communication from” customers. Doc. 24-10 at 2; see also Doc. 22 at 4 (Pretrial Order ¶ 2.a.15.). During the shutdown, defendant's executives “continued to analyze operational efficiencies and personnel attributes to make the facility more efficient upon re-opening.” Doc. 22 at 4 (Pretrial Order ¶ 2.a.16.). As part of that process, defendant determined that the inventory control/shipping quality inspector position no longer was necessary and permanently eliminated the position, sending written notice to plaintiff. Id. (Pretrial Order ¶¶ 2.a.16., 18.); see also Doc. 24-13 (Def.'s Ex. 13). At the time, plaintiff and another employee working on the first shift occupied that position. Doc. 22 at 4 (Pretrial Order ¶ 2.a.16.). Defendant provided written notice to employees that seniority was only one factor it considered when deciding which positions to eliminate. Id. (Pretrial Order ¶ 2.a.19.). Other factors included business necessity, expertise, and past performance. Id. Defendant permanently eliminated the inventory control/shipping quality inspector position, and other positions absorbed the duties previously performed by that position. Id. at 4-5 (Pretrial Order ¶¶ 2.a.22.-23.).
Between April and June 2020, defendant recalled many of its furloughed employees, 78 of whom had filed worker's compensation claims against defendant in the past. Doc. 22 at 4 (Pretrial Order ¶¶ 2.a.17., 20.); see also Doc. 24-2 at 5 (Kohr Decl. ¶ 23). Counting plaintiff, defendant permanently laid off 58 RV Products employees, 53 of whom had never filed a worker's compensation claim. Doc. 22 at 5 (Pretrial Order ¶ 2.a.24.); see also Doc. 24-2 at 5 (Kohr Decl. ¶ 24). The other employee who held the inventory control/shipping quality inspector position had not filed a worker's...
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