Clemons v. Hillshire Brands Co.

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JAMES CLEMONS PLAINTIFF v. HILLSHIRE BRANDS COMPANY DEFENDANT

Civil Action No. 2:21-CV-016 (WOB-EBA)

United States District Court, E.D. Kentucky, Northern Division, Covington

June 9, 2023

MEMORANDUM OPINION AND ORDER

WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE

This is a lawsuit brought by James Clemons (“Clemons”) against Hillshire Brands Company (“Hillshire”) for alleged employment discrimination based on disability. Currently before the Court are Defendant's Motion for Summary Judgment, (Doc. 41), Defendant's Motion to Strike or Disregard Plaintiff's Affidavit, (Doc. 54), and Plaintiff's Motion to Exclude the Declaration of Lauren Miller or, in the alternative, to Take Additional Discovery (Doc. 56).^[1]

The Court has carefully reviewed this matter and, being advised now issues the following Memorandum Opinion and Order.

Factual and Procedural Background

A. Plaintiff's Employment with Defendant

Plaintiff Clemons was employed by Defendant Hillshire^[2] on two separate occasions, most recently beginning on July 21, 2016. (Doc. 41 at 1; Doc. 48 at 1). Clemons began his second term of employment with Hillshire as a Sanitation Team Member but was promoted to Third-Shift Production Supervisor on December 18, 2017. (Doc. 41 at 1-2; Doc. 48 at 1).

In this position, Clemons worked from 10:45 p.m. to 8:00 a.m.^[3]and claims he regularly assisted his team with “strenuous physical activity,” including lifting and carrying equipment weighing between fifty and seventy-five pounds, walking through the facility, crouching, raising his arms above his shoulders, and twisting his body. (Doc. 41 at 1; Doc. 48 at 1-2; Doc. 48-1, Clemons Aff. ¶¶ 6, 8). Hillshire, on the contrary, argues that it never required Clemons to engage in physical work as a supervisor. (Doc. 55 at 4-5; Doc. 55-1, Lucas Dep. at 79:22-80:6).

As a member of Hillshire's management team, Clemons was expected to maintain a good attendance record in order to set “an example of professional behavior” for those he supervised. (Doc. 41 at 2; Doc. 41-2 § 4.4). However, Hillshire informed Clemons that his absences from work meant that he had failed to meet its expectations regarding reliability on three documented occasions: May 16, 2018,^[4] August 7, 2018,^[5] and August 23, 2019.^[6] (Doc. 41 at 2-3; Doc. 41-3 at 1; Doc. 41-4 at 1; Doc. 41-5 at 1). Each notice informed Clemons that continued attendance issues could result in further discipline and/or termination.^[7] (Doc. 41-3 at 1; Doc. 414 at 1; Doc. 41-5 at 1).

B. Plaintiff's Pain and Associated Absences

On September 26, 2019, Clemons sent a text message to his supervisor, Third-Shift Manager Lori Lucas (“Lucas”), informing her that he planned to use his “last two doctors days” for that night and the following night's shifts due to “issues with [his] hip and neck” which required an appointment with an orthopedic specialist and might be caused by a pinched nerve. (Doc. 41 at 3; Doc. 48 at 4; Doc. 48-9 at 1).

Lucas responded by informing Clemons that it was her understanding that members of management, like him, were not entitled to “doctor days.” (Doc. 41 at 3; Doc. 48-9 at 2). She also stated that “[s]upervisors don't do physical work,” to which Clemons responded that his job was physical if it was “done right.” (Doc. 48-9 at 3, 5). Lucas ended the conversation by stating that “others['] actions effect[] everyone” but that she would not “debate” the issue with Clemons. (Id. at 5).

The next day, on September 27, Clemons sought treatment from Dr. Rebecca Popham, complaining of neck and left hip pain that was made worse by ambulation and caused numbness and tingling in his leg and arm. (Doc. 41 at 4; Doc. 41-8 at 4; Doc. 48 at 5). At that appointment, Clemons noted that he could comfortably stand for eight to ten hours, sit for forty-five to sixty minutes, walk for eight to ten hours, and perform all housework, leisure activity, and work. (Doc. 41 at 4; Doc. 41-8 at 6-7). Dr. Popham ultimately diagnosed Clemons with “[c]ervical pain and left snapping hip syndrome” and prescribed physical therapy, oral steroids, Tylenol, and ibuprofen. (Doc. 41 at 5; Doc. 41-8 at 5; Doc. 48 at 6).

On October 3, 2019, Clemons missed a shift, but asked Lucas to use one of his vacation days, to which she agreed. (Doc. 48-9 at 6). Eleven days later, on October 14, Clemons informed Lucas that he would be missing another shift. (Id. at 7). Hillshire's records reflect that Clemons also missed shifts on October 15 and 16, 2019. (Doc. 48-10 at 1).

On October 15, 2019, Clemons submitted a request for leave under the Family and Medical Leave Act of 1993 (“FMLA”) to Unum, Hillshire's third-party leave provider. (Doc. 41 at 5; Doc. 41-10 at 1). On October 22, Unum confirmed that Clemons was eligible for FMLA leave beginning on October 14, 2019, but also noted that he was required to return a completed Certification of Health Care Provider Form and his leave would not be approved if the Certification was not received by November 2, 2019. (Doc. 41-10 at 1-2).

Dr. Popham returned the Certification Form to Unum the following day, describing Clemons's health conditions as “cervical pain” and left “hip pain,” with a probable duration of six months. (Doc. 41-11 at 1-2). She also noted that Clemons was able to perform all functions of his job, but that it was medically necessary for Clemons to be off work due to episodic flare-ups with an estimated frequency of twice per month for ten hours at a time. (Id. at 2).

On October 25, 2019, Clemons received a “Final Notice” for failing to achieve reliability expectations. (Doc. 41 at 7; Doc. 41-18 at 1; Doc. 48 at 6). It noted that he had missed the week of September 23 but had not followed the process for Unum to approve that period of leave pursuant to the FMLA. (Doc. 41-18 at 1). On that Notice, Clemons wrote, “When FMLA is submitted through Unum for the days for reliability will this go away [sic]. As each day would be accounted for [sic].” (Id.; Doc. 41 at 7). Clemons then missed four more days of work, from October 29 to November 1, 2019. (Doc. 41 at 7; Doc. 41-19 at 1).

On November 4, 2019, Unum sent Dr. Popham a copy of a letter originally sent to Clemons, informing her that her original submission was insufficient to support Clemons's request for FMLA leave because the probable duration she had specified was insufficient and she had failed to provide some relevant information. (Doc. 41 at 6; Doc. 41-12 at 1). The same day, Dr. Popham returned an updated Certification Form (the “Certification”), shortening the probable duration of the condition from six months to twelve weeks and providing the missing information. (Doc. 41 at 6; Doc. 41-13 at 3).

The following day, on November 5, Clemons sent another text message to Lucas, asking if he could use his three remaining vacation days that week. (Doc. 41 at 7; Doc. 48-9 at 10). The next day, Lucas confirmed that those three vacation days were approved. (Doc. 41 at 7; Doc. 41-20 at 2).

On November 12, Unum again sent Dr. Popham a copy of a letter originally sent to Clemons, stating that the Certification was still insufficient because Clemons had “taken absences which exceed [the] frequency and duration” of episodic flare-ups estimated. (Doc. 41 at 6; Doc. 41-14 at 1). Two days later, Dr. Popham responded to Unum via fax, stating, “Patient has not requested any changes in his FMLA.” (Doc. 41 at 6; Doc. 41-15 at 1).

On November 19, 2019, Unum sent a letter to Clemons informing him that the due date to provide an updated Certification had been extended to November 29, 2019, but noting that if the Certification was not received by that date, his leave would not be approved and “may be treated according to [his] employer's attendance policy.” (Doc. 41-16 at 1).

On November 20, 2019, Clemons sent Lucas a text, informing her that he would not be able to work that night and that his doctor was prescribing additional medication and wanted to order an MRI. (Doc. 48 at 7; Doc. 48-9 at 11). Clemons missed five additional days of work between December 2 and 6, 2019. (Doc. 4119 at 1; Doc. 48-9 at 13-15).

On December 6, 2019, Clemons had an appointment with Dr. Howard Schertzinger, who diagnosed him with a left brachial plexus strain, a cervical sprain, a C5/6 spondylotic bulge, and a headache disorder after reviewing the results of his MRI. (Doc. 41-22 at 12). Dr. Schertzinger prescribed physical therapy and a course of medication. (Id. at 2).

Clemons informed Lucas on December 9 that he would “be out one more night” and that his issues were being caused by discs in his neck bulging into his spinal nerve. (Doc. 48-9 at 16).

On December 10, 2019, Unum informed Clemons that his intermittent FMLA leave was approved as to “treatments” between October 28, 2019 and January 5, 2020,^[8] but denied as to “episodes of incapacity” because he had not submitted a qualifying medical certification. (Doc. 41 at 6; Doc. 41-17 at 1-2). The letter also noted that Unum was “unable to grant any further extensions.” (Doc. 41 at 6; Doc. 41-17 at 1).

Two days later, on December 12, Clemons sent another text message to Lucas, informing her that he would not be at work that night or the following night. (Doc. 48-9 at 17).

On December 17, Dr. Popham wrote a “Work Status Note” to excuse Clemons's absences on October 15, 16, 29, 30, 31, and November 1, 2019, but Unum determined that those absences were reported as “episodes,” not “treatments,” and therefore they did not qualify for approval as FMLA leave. (Doc. 41 at 9; Doc. 41-24 at 1).

On December 20, 2019, Hillshire terminated Clemons's employment for “failure to meet the standards of reliability and Management Standards of Behavior.” (Doc. 41 at 8-9; Doc. 41-19 at 1). The Termination Notice specifically...