Devore v. United Parcel Serv.

1

RICHARD DEVORE PLAINTIFF v. UNITED PARCEL SERVICE, INC. DEFENDANT

Civil Action No. 3:19-CV-00731-CRS

United States District Court, W.D. Kentucky, Louisville Division

June 27, 2022

MEMORANDUM OPINION

Charles R. Simpson, III Senior United States District Judge

This matter is before the Court on the motion of Defendant United Parcel Service, Inc. (“UPS”) for summary judgment (DN 54) pursuant to Fed.R.Civ.P. 56. Plaintiff Richard DeVore (“DeVore”) has responded (DN 62) and UPS replied (DN 65). This matter is now ripe for adjudication.

I.

DeVore was employed as a Flight Crew Scheduler (“Scheduler”) for UPS from April 2000 until May 2018. DN 54-1, PageID# 208-09. As a Scheduler, DeVore was “responsible for the regulatory and contractual compliance of flight schedules for UPS crewmembers,” which included “[m]aintaining the legality of all UPS flight crewmembers according to Title 14 of the Code of Federal Regulations (14 CFR) and the UPS/IPA (Independent Pilots Assoc.) contract[.]” Scheduler Job Description DN 54-2, PageID# 238. In accordance with the UPS/IPA contract (“CBA”) that was in effect from 2016 through 2021, if a pilot called “Crew Scheduling” to request an “early release” from his or her “on-call period” and the Scheduler granted the release, the Scheduler was required to input a certain code into the pilot's record so that a deduction would be applied to the pilot's pay. Complaint, DN 1, PageID# 3 UPS/IPA contract, DN 54-5, PageID# 244. All requests 1 for early release were to be granted unless, at the time of the request, UPS had an assignment for the pilot. DN 54-5, PageID# 244. Thus, the Scheduler had no discretion as to whether to grant the early release request or to input the code for the pay deduction. Id.; see DN 54, PageID# 187 n.3. DeVore testified that he received training on the requirements of the CBA in 2016. DN 54-1, PageID# 216-17.

On May 19, 2018, a UPS pilot called DeVore to request a six-hour early release. DN 5414, PageID# 286. DeVore granted the release but did not enter in the code necessary for the pilot's pay deduction, thus allowing the pilot to take release while still receiving full pay. See DN 1, PageID# 18; DN 54-13, PageID# 282. UPS Supervisor Chris Deignan discovered this incident while searching for an unrelated phone conversation and, on May 23, 2018, reported DeVore's conduct to UPS Manager Jeffrey Johnston (“Johnston”), who then conveyed the information to other members of UPS management. DN 54-15, PageID# 289. Ultimately, DeVore was discharged on May 25, 2018 for falsifying documentation in violation of the UPS employee integrity policy. DN 54-1, PageID# 218-19.

Approximately two months before his discharge, DeVore claims that he called Johnston over to his desk and said, “I'm going to have to go out on surgery,” to which Johnston replied, “Okay.” DN 62-1, PageID# 140. According to DeVore, there was then some discussion about employee training that might need to be completed before DeVore went out for his surgery. Id., PageID# 140-43. DeVore testified that this was the only conversation that he had with Johnston or any other member of UPS management about his potential medical leave. DN 54-1, PageID# 230, 231.

II.

In October 2019, DeVore filed a complaint against UPS in federal district court alleging retaliation in violation of the Family and Medical Leave Act (“FMLA”). DN 1, PageID# 5 (citing 29 U.S.C. § 2601). According to DeVore, he “engaged in a protected activity when requesting FMLA leave for his surgery and subsequent recovery” and UPS retaliated against him by terminating his employment. Id. UPS has moved for summary judgment. DN 54.^[1]

III.

Summary judgment is appropriate when the moving party shows that, for each claim or defense on which judgment is sought, there exists “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party may show the absence of any genuine issue of material fact by “demonstrating that the nonmoving party lacks evidence to support an essential element of its case.” Ford v. GMC, 305 F.3d 545, 551 (6th Cir. 2002). A fact is “material” if its resolution might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party may cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” that negate an essential element of the nonmoving party's claim. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. 317 at 322.

If the moving party makes this showing, “the burden . . . shifts to the nonmoving party to produce evidence that results in a conflict of material fact to be resolved by a jury.” Cox v. Ky. DOT, 53 F.3d 146, 150 (6th Cir. 1995). The nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Rather, to overcome a motion for summary judgment, the nonmoving party must produce “significant probative evidence.” See Moore, 8 F.3d 335, 339-40 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). The court must view the evidence in the light most favorable to the non-moving party and grant a motion for summary judgment only “if the record taken in its entirety could not convince a rational trier of fact to return a verdict in favor of the nonmoving party.” Cox, 53 F.3d 146, 150 (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1480 (6th Cir. 1989)).

IV.

Under the FMLA, a qualifying employee who is unable to perform his or her job due to a “serious health condition” is entitled to up to twelve weeks of unpaid leave each year. Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (citing 29 U.S.C. § 2612(a)(1)(D)). “An employer . . . violates the FMLA under [a] ‘retaliation theory if it takes adverse action against an employee because the employee invokes an FMLA right, rather than for a legitimate, nondiscriminatory reason.'” Casagrande v. OhioHealth Corp., 666 Fed.Appx. 491, 496 (6th Cir. 2016) (citing Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012)). When the plaintiff does not provide direct evidence of retaliation, the McDonnell Douglas burden-shifting framework is applied. Marshall v. Rawlings Co. LLC, 854 F.3d 368, 381 (6th Cir. 2017).

McDonnell Douglas requires a plaintiff to first establish a prima facia case by showing that “(1) he was engaged in a statutorily protected activity; (2) [the employer] knew that he was exercising his FMLA rights; (3) he suffered an adverse employment action; and (4) a causal connection existed between the protected FMLA activity and the adverse employment action.” Seeger, 681 F.3d at 283 (citing Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012)). Once the plaintiff establishes a prima facie case, “the defendant has the burden to articulate a nondiscriminatory reason for the adverse employment action; if the defendant can provide a nondiscriminatory reason, the plaintiff has the burden to show that the reason was pretext.” Marshall, 854 F.3d at 379. “At the summary judgment stage, [the Court] must determine whether, within the steps of the McDonnell Douglas framework, there are genuine disputes of material fact.” Id. at 381.

A. Notice of Protected Activity

The record in the present action does not support the first two prongs of DeVore's prima facie case. While “[a]n employee need not expressly assert rights under the FMLA,” the employer must be given “sufficient notice” from which the employer “can reasonably conclude that an FMLA-qualifying circumstance is in play.” Reeder v. Cnty. of Wayne, 694 Fed.Appx. 1001, 1006 (6th Cir. 2017) (citing Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012)). If an employee meets this burden, “it is incumbent on the employer-if more information is needed to determine whether the condition is FMLA-qualifying-to require, by written notice, certification by a healthcare provider.” Id. at 1006 (citing Wallace v. FedEx Corp., 764 F.3d 571, 587-88 (6th Cir. 2014)). However, “part of reasonable notice generally includes an indication of ‘the anticipated timing and duration of the leave.'” Wallace, 764 F.3d at 586 (quoting 29 U.S.C. § 825.302(c))). FMLA leave notice must also be “reasonably adequate to apprise the employer of the employee's request to take leave for a serious health condition that rendered him unable to perform his job.'” Gipson v. Vought Aircraft Indus., Inc., 387 Fed.Appx. 548, 556 (6th Cir. 2010) (quoting Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th Cir. 2004) (brackets and emphasis omitted)).

There is no evidence that DeVore directly asserted his FMLA rights or that he provided UPS with any “indication of the anticipated timing and duration of the leave.” Simply stating, “I'm going to have to go out on surgery,” without any further information or any further discussion, is not only insufficient to show that UPS could “reasonably determine whether the FMLA may apply to the leave request,” but is also inadequate to establish that UPS knew “there was any such request at all.” See Keogh v. Concentra Health Servs., 752 Fed.Appx. 316, 322 (6th Cir. 2018).^[2] DeVore's vague statement to Johnston also did not “reasonably inform [UPS] that [DeVore] was presently suffering from” a serious health condition which the FMLA defines as “‘an illness, injury, impairment, or physical or mental...