Vung v. Swift Pork Co.
| Decision Date | 28 October 2019 |
| Docket Number | Case No. 4:18-cv-00209-SMR-SBJ |
| Parties | Cing VUNG, Plaintiff, v. SWIFT PORK COMPANY and Stacey Santillan, Defendants. |
| Court | U.S. District Court — Southern District of Iowa |
Beatriz Andrea Mate-Kodjo, Lori Ann Bullock, Newkirk Zwagerman, P.L.C., Des Moines, IA, for Plaintiff.
Ruth A Horvatich, Aaron A Clark, Abigail M. Moland, McGrath North Mullin & Kratz PC LLC, Omaha, NE, for Defendants
This is a case about a Burmese woman with an asthmatic son who was fired less than one week after disclosing her pregnancy to her employer. Defendants filed a Motion for Summary Judgment on June 14, 2019. [ECF No. 26].1 Viewing the record in the light most favorable to Vung as the nonmoving party, the Court is unable to conclude Defendants are entitled to judgment as a matter of law. Because dispositive issues hinge on disputed questions of material fact, Defendants' motion is DENIED.
Vung is a Burmese immigrant who first arrived in the United States in 2013 and lives with her husband and five sons. [ECF No. 34-1 ¶¶ 1, 3]. Vung's native language is Zomi and she is fluent in Burmese; she speaks little to no English. Id. ¶ 7. Nevertheless, Vung is the sole breadwinner for her family. [ECF No. 26-4 at 3–4]. The parties agree Vung is a hardworking employee. [ECF No. 34-1 ¶ 3].
Swift Pork is a meat processing company that has plants across the country. [ECF No. 26-1 ¶ 1]. Stacy Santillan (now known as Stacy Freiberg) was the Human Resource Manager at the Swift Pork facility in Marshalltown, Iowa, during the time giving rise to the events in question; she currently serves as the Director of Human Resources at the Company's office in Louisville, Kentucky. Id. ¶ 2.2 Swift Pork employs an ethnically-diverse workforce consisting of employees from across the cultural spectrum. The Company communicates with non-English speaking employees through the use of live interpreters and a telephonic language interpreter service when necessary. [ECF No. 26-1 ¶ 8].
Vung started working on the line at Swift Pork's facility in Marshalltown on or about April 5, 2015. [ECF No. 34-1 ¶ 6]. She was fired in a meeting with Freiberg on August 17, 2016. Id. ¶¶ 70–71.
Swift Pork has a point-based attendance policy under which employees are assessed points for absences from work over the course of a rolling twelve-month period. [ECF No. 26-1 ¶ 10]. Generally, employees receive one attendance point for every absence from work, even when they miss work because they, their child, or their spouse is sick. Id. ¶ 11. If an employee misses multiple days of work and provides doctor certification, however, only one point is assessed for the entire period of absence. Id. ¶ 15; [ECF No. 26-4 at 39]. Points are assessed automatically through the Company's timekeeping software. Human resources staff manually edit an employee's attendance history for absences that do not incur points under the attendance policy, such as qualifying absences under federal law, paid holidays and vacations, and previously-excused absences. [ECF No. 26-1 ¶¶ 12, 26–29, 40].
The Swift Pork Employee Handbook lays out the Company's policy on FMLA leave. It states:
If your need for family/medical leave is foreseeable, you must give the Company at least 30 days' prior written notice. Failure to provide such notice may be grounds for delay of leave. In cases where the need for leave is not foreseeable, you are expected to notify the Company as soon as possible, generally within 1 to 2 business days of learning of your need for leave. The Company has Request for Family/Medical Leave forms available from the Human Resources Department. You must use these forms when requesting leave.
[ECF No. 26-4 at 37]. The Handbook further requires employees to submit "appropriate medical certification" supporting the qualifying reason for their need for leave within fifteen days after leave is requested. Id. Consistent with the FMLA, Swift Pork's policy allows employees to take leave to care for children with a serious health condition. See id. at 42. Proper procedure under the Company's FMLA policy calls for employees to submit a written application for FMLA leave and obtain physician certification of the reason for the absence. [ECF No. 26-1 ¶ 33]. The parties agree Vung became eligible for FLMA on or about April 6, 2016. See [ECF No. 34-1 ¶ 20].
For each day an employee will be absent, the employee is required to call in to the Company's attendance hotline number, listed on the back of every employee ID badge, at least thirty minutes prior to the start of their shift to provide identifying information and the reason for their absence. See [ECF No. 26-1 ¶¶ 16, 20, 23]. An automated message played in English, Spanish, and Burmese prompts employees to leave a voicemail with their name, ID, department, and reason for not reporting to work. Id. ¶ 21. A human resources coordinator then retrieves the messages from the hotline and communicates absences to the employees' respective departments while reflecting the reason for the absence in the employee's timekeeping file. Id. ¶ 22. An interpreter is used to retrieve and interpret messages when necessary. Id. Failure to call in is considered a "no call, no show" on the employee's attendance record and results in two points, not one; three "no call, no shows" in a rolling twelve-month period provides automatic grounds for termination. Id. ¶¶ 16–17. If the employee misses multiple days, for any reason (even qualifying FMLA leave), the employee is expected to notify the Company prior the start of each shift he or she will miss. See id. ¶ 33. Vung's personnel file does not indicate she was ever disciplined for failing to report an absence besides August 5, 2016 (discussed below), and Vung testified she always called in. [ECF No. 34-1 ¶¶ 14, 39]; see [ECF No. 26-4 at 12–14, 20].
Employees receive a written warning when they accrue five attendance points, and a final written warning accompanied by an in-person meeting with a human resources representative after accruing eight points. [ECF No. 26-1 ¶ 18]. The attendance policy calls for the employee's termination upon accruing the ninth attendance point. Id. When an employee reaches nine points, a human resources staff member notifies Freiberg that the employee has exceeded the allowable points so proper disciplinary or termination actions can be taken. [ECF No. 34-1 ¶ 43]. Freiberg testified that there is no set timeframe for the termination procedure after an employee accrues nine points, but it depends on a variety of factors relating to when she is made aware the employee "pointed out" and the availability of the employee to attend the termination meeting with union representatives. See [ECF No. 34-3 at 3–4, 38]. This "should be" a quick process—but it can sometimes result in an employee accruing upwards of nine points prior to termination. Id. However, human resources staff testified it would be unusual for an employee to keep their job for more than a few weeks before being terminated for pointing out. See [ECF No. 34-4 at 6].
Vung disputes she was fully aware of the Company's attendance policy and the consequences for failing to adhere to it. According to Defendants, each new employee is given a copy of the Employee Handbook, including the Company's FMLA policy, upon hire. [ECF Nos. 26-1 ¶ 32; 26-3 at 2 ¶ 4]. Vung informs she was only provided a handbook in English, which she cannot read, and maintains that none of the Company's attendance policies are printed in any Burmese dialect—only English and Spanish. See [ECF No. 34-4 at 47–59]; see also [ECF No. 34-2 at 10] (); cf. [ECF No. 34-4 at 5] (). Swift Pork also states it offers training sessions on its attendance and FMLA policies in both Spanish and Burmese, [ECF No. 26-1 ¶ 9], but Vung testified that she had never received any additional training except training for initial safety procedures in Burmese, [ECF No. 26-4 at 54–56].
Vung's five-year-old child, A.M., has asthma
that requires respiratory treatment and medications. [ECF No. 34-1 ¶ 4]. A.M.'s asthma can become aggravated by other illnesses, and when that occurs he requires special medical attention. Id. ¶ 5.
Sometimes A.M.'s asthma
would flare up while Vung was at work, requiring her to leave for a short period of time to administer his medications. Id. ¶ 9. Employees are not normally allowed to leave their position in the line without permission from their supervisors, even to go to the bathroom. [ECF Nos. 34-1 ¶ 11; 34-2 at 41]. Supervisors have discretion to approve time off during the work day, however, official policy directs those requests to be approved in advance through an absence request form completed by the employee, signed by her supervisor, and turned in to human resources. [ECF No. 26-1 ¶ 13]; see [ECF No. 26-4 at 40]. But according to Vung, her supervisor, Leticia "Leti" Garcia, would routinely allow her and other employees to leave and return to work without clocking in and out to attend to personal and family matters—in Vung's case, to administer asthma medication to her son. [ECF No. 26-4 at 32–34]; see [ECF No. 34-1 ¶¶ 8, 10]. Garcia denies Vung ever informed her of her son's asthma and need for treatment during work hours, and states that while she would be flexible with her workers needing to leave for personal reasons, she never let employees leave without filling out proper paperwork. See [ECF No. 34-2 at 29, 40]. However, Swift Pork records reflect that on at least several different occasions Vung left work—swiping out and back in through the security turnstiles, but without ever...
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