Lujan v. Exide Techs.

JORGE LUJAN, Plaintiff, v. EXIDE TECHNOLOGIES, Defendant.

Case No. 10-4023-JTM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: February 6, 2012

MEMORANDUM AND ORDER

This matter comes before the court on defendant, Exide Technologies's Motion for Summary Judgment (Dkt. No. 84). The court held oral argument on the motion on January 30, 2012, and took the matter under advisement.

Exide fired the plaintiff, Jorge Lujan, not long after a doctor placed permanent work restrictions on him for his shoulder injury. Exide contends Mr. Lujan's work restrictions made it impossible for him to perform his job. At issue is whether Mr. Lujan has produced enough evidence to submit his workers compensation retaliation, Family Medical Leave Act (FMLA) retaliation, and FMLA interference claims to a jury. This court holds that he has not. Mr. Lujan cannot show that Exide's stated reason for terminating him was pretextual. And he exhausted his FMLA leave eligibility prior to his termination. Additionally, for the reasons stated herein, the court grants Exide's Motion to Exclude Plaintiff's Expert Witnesses (Dkt. No. 93) and denies as moot Exide's Motion to Strike Affidavit of Karl Sneath or, Alternatively, to Take Mr. Sneath's Deposition (Dkt.No. 91).

I. Uncontroverted Facts

Before reciting the facts of this case, this court must once again admonish Mr. Lujan's counsel for failing to follow the local rules and the Federal Rules of Civil Procedure when responding to and presenting facts at summary judgment. This is at least the seventh time this court has had to admonish plaintiff's counsel about precisely this failure. See Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp.2d 1225 (D. Kan. 2007); Boldridge v. Tyson Foods, Inc., No. 05-4055, 2007 WL 1299197, at *1 (D. Kan. May 2, 2007), aff'd, 280 Fed. App'x 723 (10th Cir. 2008); Ney v. City of Hoisington, Kan., 508 F. Supp.2d 877 (D. Kan. 2007), aff'd, 264 Fed. App'x 678 (10th Cir. 2008); Rojo v. IBP, Inc., No. 02-4112-JAR, 2007 WL 593637 (D. Kan. Feb. 21, 2007), aff'd, 278 Fed. App'x 850 (10th Cir. 2008); Satterlee v. Allen Press, Inc., 455 F. Supp.2d 1236 (D. Kan. 2006). Local Rule 56.1(b)(1), and (d) specifically provides:

(b)(1) Opposing Memorandum. 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.

(d) Presentation of Factual Material. All facts on which a motion or opposition is based must be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories, and responses to requests for admission. Affidavits or declarations must be made on personal knowledge and by a person competent to testify to the facts stated that are admissible into evidence. Where facts referred to in an affidavit or declaration are contained in another document, such as a deposition, interrogatory answer, or admission, a copy of the relevant excerpt from the document must be attached.

To controvert Exide's factual statement, it is not proper to simply state that a fact is controverted orto add additional irrelevant facts. See Coleman, 487 F. Supp.2d at 1235-36, n.23. The proper place for additional facts is in a separate section in a memorandum in opposition to summary judgment. See D. KAN. R. 56.1(b)(1). There are frequent instances in plaintiff's brief in which the cited testimony does not reflect the proposition asserted, or even reflects the opposite proposition. Counsel also commonly states legal conclusions as facts. In none of these instances has plaintiff's counsel properly controverted Exide's facts; thus, many are deemed admitted.¹

A. Mr. Lujan's Injury

Exide manufactures and distributes batteries of all sizes up to 80 pounds at its plant in Salina, Kansas. Mr. Lujan began working for Exide at the Salina plant in May 2002. From that time, until his termination on March 13, 2008, he held the position of COS Operator (case on strap loader). Among other things, the job description for the COS Operator position states that "[e]mployee is required to repetitiously lift and handle battery parts, elements and batteries weighing from grams to 80 pounds," and also "[r]epetitious lifting of 3-5 pounds." Dkt. No. 85, Ex. 5. As a COS Operator, Mr. Lujan had to lift "lead pigs" or lead bars, weighing 60 to 70 pounds, and also had to lift molds weighing in excess of 75 pounds, without help from equipment.

On December 3, 2006, Mr. Lujan injured his left shoulder while he was lifting the lead bars. In January 2007, Mr. Lujan was evaluated by Dr. John Richards, who diagnosed him with a shoulder strain. Dr. Richards placed Mr. Lujan on "light duty" and told him not to lift lead bars. He also prescribed physical therapy and over-the-counter pain relievers. Mr. Lujan began physical therapybut still had shoulder pain when he returned on February 8. On February 20, Dr. Richards ordered x-rays of Mr. Lujan's shoulder and neck and placed him on full work restriction until further evaluation. By March 6, the pain had not subsided and Mr. Lujan continued on full work restriction. By referral, Mr. Lujan went to an orthopedic clinic on March 13. The clinic doctor ordered an MRI of his shoulder and relaxed his full work restriction to allow him to lift up to 25 pounds, but restricted any overhead work.

On March 20, Mr. Lujan filed a formal workers compensation claim. On March 29, the clinic doctor noted that he was "debilitated" and "not working at this point due to his restrictions." Dkt. No. 85, Ex. 15. And the doctor increased his work restriction to only using his right arm. A few weeks later the same doctor recommended shoulder surgery. On June 12, Dr. Craig Satterlee performed Mr. Lujan's shoulder surgery and placed him on full work restriction. On July 26, Dr. Satterlee released Mr. Lujan to return to light duty under a partial work restriction requiring him not to lift any weight. This restriction was amended on September 10, so that he could lift no more than 10 pounds above horizontal. Dr. Satterlee last treated Mr. Lujan on October 15, 2007, in which he summarized Mr. Lujan's recovery and placed him on the following restriction:

He comes in today. His shoulder is doing well. He is able to lift 60 pounds in therapy. His active elevation is 180, external rotation is 70, internal rotation is T9. He is having troubles with his neck. He says it is episodic. It comes and goes. He has had evaluation and treatment of it with Dr. Johnson before. We discussed as far as his shoulder goes, I think he is at maximum medical improvement. We could probably release him without any restrictions, but I will keep him on a 60 pound lifting restriction because of his neck and we should have him follow up with one of the neck specialists either here or at home. We will see if those arrangements can be made for him.

Dkt. No. 85, Ex. 26 (emphasis added). Thereafter, Mr. Lujan returned to his COS Operator job, but worked under Dr. Satterlee's 60-pound restriction. This restriction allowed him to continue workingin his normal position, however, other employees had to lift the lead bars and molds for him.

Dr. Satterlee also referred Mr. Lujan to neurologist Dr. Paul Stein for his neck problems. On January 11, 2008, Dr. Stein examined Mr. Lujan and summarized Mr. Lujan's current status as: "Pain is present in the left side of the neck, the left trapezius, and the left shoulder. There is pain across the left shoulder blade and some into the upper arm. On a scale of 0-10, the pain ranges from 5 to 8." Dkt. No. 85, Ex. 29, pg. 2. Mr. Lujan also told him that the pain "will sometimes awaken him at night." Id. at pg. 3. Dr. Stein summarized his conclusions as follows: "Mr. Lujan sustained injury to the left shoulder at work on 12/3/06. He is at maximum medical improvement for the shoulder injury. . . . Total left upper extremity impairment is 19% documented." Id. at pg. 5. He placed permanent work restrictions on Mr. Lujan's shoulder including:

1. Avoid lifting more than 30 pounds with the left hand up to chest level.

2. Avoid repetitive work activity with the left-hand above shoulder level.

3. Avoid repetitive activity with the left-hand extended backward.

4. Avoid repetitive activity with the left-hand fully outstretched.

Id. Dr. Stein also stated that further investigation was needed "to rule out the possibility of nerve root impingement or peripheral nerve entrapment." Id. Exide received a copy of the report on February 6, 2008. On February 7, Mr. Lujan had an MRI and EMG/NCT imaging study performed on his neck. Dr. Stein concluded the imaging studies were normal and that Mr. Lujan had no neck impairment. In early March, Exide received notice that Mr. Lujan's neck was normal. Throughout Mr. Lujan's medical troubles, Exide or its workers compensation insurer covered the cost of all his medical treatment.

Jayne Cornish is Exide's Human Resources Manager. After receiving Dr. Stein's report on February 6, she undertook the process of determining whether the permanent work restrictionsimposed by Dr. Stein would allow Mr. Lujan to continue performing his job as a COS Operator. Ms. Cornish determined that the requirements of that job were inconsistent with Mr. Lujan's maximum weight and repetitive motion restrictions, thus, she concluded Mr. Lujan could no longer work as a COS Operator. Ms. Cornish also reviewed the job descriptions of other open jobs at Exide to determine whether Mr. Lujan might be able to perform another job at the company. The open and available jobs were Plaque Room Worker, Stacker/Wrapper (three positions available), Unloader, Material Handler, and Assembler. All of the jobs required...