Carter v. Spirit AerosyStems, Inc.

MARK ANTHONY CARTER Plaintiff, v. SPIRIT AEROSYSTEMS, INC., Defendant.

Case No. 16-01350-EFM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

August 8, 2019

MEMORANDUM AND ORDER

Plaintiff Mark Anthony Carter is a former employee of Defendant Spirit AeroSystems, Inc. ("Spirit"). Carter, proceeding pro se, alleges that Spirit discriminated against him in violation of the Americans with Disabilities Act ("ADA") and interfered with his rights under the Family Medical Leave Act ("FMLA"). Carter also alleges that Spirit retaliated against him for filing a charge with the Equal Employment Opportunity Commission ("EEOC"), filing a workers' compensation claim, and taking FMLA leave. This matter comes before the Court on the parties' respective motions for summary judgment, as well as Carter's motion for the Court to reconsider an order denying his request to file a surreply. For the following reasons, the Court grants Spirit's Motion for Summary Judgment (Doc. 149) and denies Carter's Cross-Motion for Summary Judgment (Doc. 166) and Motion for Reconsideration (Doc. 165).

I. Factual and Procedural Background

A. Local Rules for Summary Judgment

In addition to the Federal Rules of Civil Procedure, the District of Kansas Local Rules set forth specific requirements for summary judgment motions. Under D. Kan. Rule 56.1, a memorandum in support of a motion for summary judgment "must begin with a section that contains a concise statement of material facts as to which the movant contends no genuine issue exists."¹ Furthermore, "[a]ll material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party."² The rule further states that:

A memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and if applicable, state the number of movant's fact that is disputed.³

Carter is proceeding pro se, and the Court must afford him some leniency in his filings.⁴ A pro se litigant, however, is still expected to "follow the same rules of procedure that govern other litigants."⁵ Here, Spirit's statement of facts contained 69 paragraphs of facts with citations to the record. Carter's Response opposing summary judgment states that 32 of Spirit's paragraphs are uncontroverted, and Carter attempts to controvert the remaining 37 paragraphs. Carter'sResponse, however, fails to controvert Spirit's facts with specific citations to the record.⁶ Similarly, Carter's Cross-Motion for Summary Judgment not only omits citations to the record, it provides no statement of facts at all for the Court's consideration. The Court will not scour the record on Carter's behalf to seek evidence contradicting Spirit's statement of facts.⁷ Instead, the Court holds that Carter has failed to adequately controvert any of Spirit's facts, and Spirit's facts are deemed admitted for purposes of summary judgment.

B. Facts

Spirit designs and builds parts and components for commercial aircraft. In 2011, Spirit hired Carter as an Assembly Mechanic-Underwing in its Wichita, Kansas facility to work on the strut assemblies on the Boeing 777 line. When he was first hired, Carter worked in the second shift position, but Carter eventually moved to the first shift position, which begins its shift at 6:30 a.m.

Carter suffers from intense migraines. Carter describes his migraines as being debilitating to the point where he "cannot physically do anything." Instead, Carter's migraines leave him "laying in bed screaming for hours" or even "the whole day." From 2012 until he was fired in 2015, Carter applied and was approved for several intermittent or continuous FMLA leaves of absence; Carter took some of the leaves of absence to care for his sick wife and others were to address his own health conditions.⁸

Spirit's General Leave of Absence policy, OP3-177, informs employees of the procedure they must follow to request and report leave under the FMLA. To have leave approved under the FMLA, the employee must notify Spirit's Benefits Center within three days of the absence. OP3-177 also states that "Employees must report absences and/or late arrivals in accordance with Spirit's OP3-178 Attendance and Punctuality procedure" and that "[n]othing in this procedure is intended to relieve an employee's responsibility to notify management or the Absence Reporting Line . . . of unscheduled absences and/or late arrivals in accordance with OP3-178."

Spirit's Attendance and Punctuality procedure, OP3-178, states:

In the event an unexpected circumstance arises that will cause the employee to be late for work or absent, the employee must notify his/her manager within the first thirty (30) minutes of their shift. Failure to follow these requirements may result in disciplinary action, up to and including termination.

OP3-178 states that its guidelines "apply to all Spirit AeroSystems employees at the Wichita, Kinston, Tulsa, and McAlester sites." Additionally, it states that all "[a]ttendance guidelines affecting employees represented by a collective bargaining unit will be administered in accordance with the terms of the collective bargaining agreement." Carter is represented by a collective bargaining unit, International Association of Machinists and Aerospace Workers, AFL-CIO ("IAM"). The collective bargaining agreement between Spirit and IAM does not contain a section regarding employees' obligations to timely report to managers any unforeseen absences or tardiness. Section 11.4(C)(1) of the CBA does address how employees may use sick leave, stating:

Between eligibility dates, an employee, including an employee on a leave of absence, may, at his option, use any part or all of his Sick Leave Credit as sick leave providing: (A) the employee is partially or wholly incapacitated by actual illness or injury on the days taken as sick leave, (B) an illness in the employee's immediate family requires the employee's presence or (C) the employee has a medical or dental appointment which can be scheduled only during working hours. The employee shall be paid for absence charged to sick leave and shall not be penalized for such absence providing the nature of the absence and anticipated length ofabsence is reported to his organization on the first day of such absence, or as soon thereafter as reasonably possible. As to possible rights after exhaustion of Sick Leave Credit, see Section 11.4(B.5).

Jeffry Black, who worked in Spirit's Labor Relations division in 2014-2015, states in a sworn declaration that Section 11.4(C) "applies only to situations where the employee opts to use sick leave and wants to be paid for the absence." Black states that "[t]he 'notice of sick leave' provision in Section 11.4(C) is entirely separate and distinct from the manager notification procedure outlined in [OP3-178]." Additionally, Black states that in May 2015, Spirit and IAM entered into a Memorandum of Understanding ("MOA") confirming that Section 11.4(C)(1) "was intended to cover use of sick leave credit, and that employees were still subject to discipline for failing to follow the manager notification procedure, even if they covered an absence with sick leave credit."

Under Spirit's Disciplinary Guidelines, OP3-179, an employee who violates Spirit's manager-notification policy is typically given a documented verbal warning; thereafter, the employee can receive a written warning, suspension, or termination for subsequent violations. Spirit has a separate disciplinary process for employees who engage in "personal misconduct"—for example, violating the manager-notification policy—and employees who violate Spirit's attendance policy with excessive absences. An employee who violates Spirit's "personal misconduct" policies receives a Disciplinary Action Form outlining the area of concern and the level of discipline. In contrast, an employee who is excessively absent receives an Attendance Disciplinary Memo.

Spirit provides sworn declarations from three Spirit employees addressing the importance of Spirit's manager-notification policy. Laura Breese, a Human Resources manager, stated that "[t]he manager notification procedure ensures that first-level managers know at the beginning ofthe work day who will and will not be present for work." Lauri Myers, a second-level supervisor, and Dustin Valentine, a first-level supervisor, both stated that for Spirit to meet its production deadlines, it is critical for managers to know which employees will be present on any given day. Additionally, from 2014-2015, Spirit issued over 240 disciplinary actions to nearly 200 different employees for failure to follow the manager-notification procedure. Twenty of these employees were on approved FMLA leave on at least one of the dates on their discipline form.

On December 9, 2014, Spirit gave Carter a documented verbal warning for personal misconduct. The Disciplinary Action Form stated that Carter failed to notify his manager within 30 minutes of his shift that he would be late or absent on four separate occasions. The form stated that Carter "must adhere to all company policies, procedures, and management directives including notifying management within the first thirty minutes of [Carter's] shift if [he is] going to be late or absent." The form then stated that "[f]uture incidents of this nature may result in further disciplinary action up to and including termination." Three of the four days Carter was absent, he was on approved intermittent FMLA leave to care for his wife and for his own non-work injury to his hand. Carter never received an Attendance Disciplinary Memo for the absences themselves; rather, he was disciplined solely for his failure to timely...