Fort Wiseman v. New Breed Logistics, Inc.

72 F.Supp.3d 672

Fort WISEMAN, Plaintiff

v.NEW BREED LOGISTICS, INC., Defendant.

No. 3:13–CV–00184–SA–JMV.

United States District Court, N.D. Mississippi, Oxford Division.

Signed Dec. 18, 2014.

Jim D. Waide, III, Ronnie Lee Woodruff, Waide & Associates, PA, Tupelo, MS, for Plaintiff.

Christina Forte Meddin, Frederick T. Smith, Seyfarth Shaw LLP, Atlanta, GA, Brad Best, Holcomb Dunbar, Oxford, MS, for Defendant.

MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

Plaintiff Fort Wiseman brings this action alleging retaliatory termination under the Family Medical Leave Act (“FMLA”) and race discrimination under 42 U.S.C. § 1981. Defendant New Breed Logistics, Inc. (“New Breed”) has filed a Motion for Summary Judgment [56], arguing both claims should be dismissed, or that alternately, Wiseman's potential recovery on those claims should be limited under the after-acquired evidence doctrine. After considering the motion, responses, rules, and authorities, the Court finds as follows.

A. Facts and Procedural History

I. Wiseman's Time at New Breed

Wiseman, who is black, began working for New Breed in July 2008 as a material handler in its Olive Branch facility. He eventually became a “yard driver” after two promotions with two accompanying pay raises. As a yard driver, Wiseman operated a small tractor called a “yard mule” to move full or empty trailers to and from a shipping dock for loading and unloading.

In April 2012, Wiseman was granted paid time off (“PTO”) for a heart procedure. Both his immediate supervisor Sandra Bell and her supervisor George Nielson were aware of Wiseman's surgery and absence. The procedure took place on April 2, 2012, and Wiseman returned to work the following week on April 9, 2012.

The incident giving rise to Wiseman's claims occurred before sunrise on April 13, 2012. Wiseman was moving a trailer to the shipping dock when its door swung open and crashed into the dock's receiving door, causing damage to the trailer in the amount of three hundred and fifty-one dollars. New Breed asserts that Wiseman made two errors in causing this accident. First, New Breed contends that Wiseman should have secured the trailer door with a latch rather than with a string. Wiseman insists, however, and at least two other witnesses agree, that the trailer had no latch. Second, Wiseman proceeded toward the dock by backing in at an angle, but New Breed contends he should have backed directly toward the dock by squaring the trailer in front of the receiving door.

Following this accident, New Breed suspended Wiseman and conducted an internal review. The facility's general manager, Doug Rabe, recommended Wiseman for termination. New Breed's human resources director, vice president of operations, and general counsel then reviewed and approved Rabe's recommendation. Wiseman received termination notice by telephone and by mail in early May 2012.

II. The Present Litigation

In July 2013, after receiving his right-to-sue letter, Wiseman initiated suit in this Court, alleging that New Breed violated the FMLA and 42 U.S.C. § 1981. New Breed filed the pending Motion for Summary Judgment [56], which his now ripe for the Court's review.

B. Summary Judgment Standard

Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when the evidence reveals no genuine dispute regarding any material fact and the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when ... both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). Notably, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are an inadequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002) ; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993) ; Little, 37 F.3d at 1075.

C. Discussion and Analysis

I. FMLA Retaliation Claim

Two distinctive sets of provisions are found in the FMLA. Nero v. Ind. Molding Corp., 167 F.3d 921, 927 (5th Cir.1999) (citing Bocalbos v. Nat'l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir.1998) ). The first set “creates a series of entitlements or substantive rights.” Id. For example, the FMLA entitles an eligible employee who suffers a disabling health problem to twelve weeks of unpaid leave within one year from the time the problem occurs. 29 U.S.C. § 2612(a)(1) ; Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002) ; Rutland v. Pepper, 404 F.3d 921, 923 (5th Cir.2005). And normally, after returning from such leave, the employee must be reinstated to the same or an equivalent position. 29 U.S.C. § 2614(a)(1) ; 29 C.F.R. § 825.214(a) ; Rutland, 404 F.3d at 923.

The second set “is proscriptive....” Nero, 167 F.3d at 927. Under the proscriptive provisions, employers may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the Act. 29 U.S.C. § 2615(a)(1). Nor may they “discharge or in any other manner discriminate against any individual” for exercising their FMLA-protected rights. Id. § 2615(a)(2). Wiseman's retaliation claim falls under the latter, proscriptive provisions. Mauder v. Metro. Transit Auth. of Harris Cnty., Tex., 446 F.3d 574, 580 (5th Cir.2006).

Like many employment-discrimination claims, FMLA retaliation is governed by the McDonnell Douglas burden-shifting framework absent direct evidence of discrimination. Richardson v. Monitronics Int'l, Inc., 434 F.3d 327, 332 (5th Cir.2005). Thus, to prevail, Wiseman must first meet his prima facie burden by showing that “(1) [he] engaged in a protected activity, (2) the employer discharged h[im], and (3) there is a causal link between the protected activity and the discharge.” Id. New Breed contests the first and third elements only.

As to the first, New Breed argues that Wiseman was not protected by the FMLA since he requested PTO and was in fact paid during the week he was absent for his heart procedure. This presents an issue that has generated conflict among federal courts—whether an employee taking PTO loses the FMLA's protections. Compare Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir.1997) (finding employer on notice that FMLA applied when employee requested PTO only), with Ney v. City of Hoisington, Kan., 264 Fed.Appx. 678, 682 (10th Cir.2008) (holding that employee who rejected FMLA leave and asked for PTO was not covered under the Act), and Gonzales v. City of Albuquerque, 849 F.Supp.2d 1123, 1178 (D.N.M.2011)aff'd, 701 F.3d 1267 (10th Cir.2012) (finding employee who provided dates for her PTO but not for her FMLA leave could not establish her prima facie case). Resolving this conflict here is unnecessary, especially without Fifth Circuit guidance on the issue, as Wiseman faces a more significant hurdle to establishing his prima facie case, i.e., causation.

To demonstrate causation, Wiseman must either show (a) that he “was treated less favorably than an employee who had not requested leave under the FMLA;” or (b) that “the adverse decision was made because [he] took FMLA leave.” Hunt v. Rapides Healthcare Sys., 277 F.3d 757, 768 (5th Cir.2001) (citing Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir.1999) ). Wiseman pursues the second avenue, arguing that his suspension and subsequent termination, which New Breed instituted only four days after he returned to work, satisfy the causation prong.

Timing alone may establish causation if the protected activity and the adverse employment are “very close.” Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir.2007) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ). In fact, this Court has twice found causation established at summary judgment based on such suspicious timing. Newcomb v. Corinth Sch. Dist., 2014 WL 1746066, at *5 (N.D.Miss. May 1, 2014) (termination less than two months after injury and one day after surgery); Linzy v. Sara Lee Corp., 2012 WL 1190907, at *5 (N.D.Miss. Apr. 10, 2012) (termination seven days after injury reported).

Still, “temporal proximity alone is insufficient to create a genuine issue of fact as to causal connection where there is unrebutted evidence that the decision maker did not have knowledge that the employee engaged in protected conduct.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.2000) ; see also Coleman v. FFE Transp. Servs., Inc., 2013 WL 1914932, at *6 (N.D.Tex. May 9, 2013) (“[K]nowledge of the FMLA leave by the decision maker is [usually] required to establish a causal connection....”). Here, there is no evidence that the individuals who played a role in Wiseman's termination—New Breed's human resources director, general manager, senior vice president of operations, and general counsel—knew about Wiseman's leave or his medical condition at the time he was suspended and subsequently terminated.

Wiseman does not dispute this but argues instead that Sandra Bell, his direct...