Popeck v. Rawlings Co.

ADRIANNE POPECK PLAINTIFF v. RAWLINGS COMPANY LLC;and DEBRA FORD DEFENDANTS

CIVIL ACTION NO. 3:16-CV-00138-GNS-DW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

May 3, 2018

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff's Objection to Magistrate Judge's Order (DN 97), Plaintiff's Motions for Partial Summary Judgment (DN 110, 111, 112, 113, 117, 118), Defendants' Motions for Summary Judgment (DN 115, 116), Defendants' Motions for Leave to Exceed Page Limitations (DN 114, 124, 138), and Plaintiff's Motion for Leave to Exceed Page Limitations (DN 126). The motions are ripe for adjudication. For the reasons outlined below, Defendants' Motions for Summary Judgment (DN 115, 116) are GRANTED IN PART and DENIED IN PART, the parties' motions to exceed page limitations are GRANTED, Plaintiff's objection is OVERRULED AS MOOT, and Plaintiffs' remaining motions are DENIED AS MOOT.

I. STATEMENT OF FACTS AND CLAIMS

This action involves several employment law claims brought by Adrianne Popeck ("Popeck") against her former employer, The Rawlings Company LLC¹ ("Rawlings Co."), andone of its human resources generalists, Debra Ford ("Ford") (collectively "Defendants"). Popeck worked for Rawlings Co. in various roles—including auditor and audit team manager ("ATM")—from March 30, 2009, until December 8, 2015. (Second Am. Compl. ¶ 5, DN 48; Popeck Aff. ¶ 89, DN 127-4; Barrens Dep. 12:12-16, Mar. 22, 2017, DN 109-1; Popeck Dep. 71:14-16). As an ATM, Popeck audited claims and supervised the performance of ten to fifteen auditors. (Popeck Dep. 105:11-106:3). In her supervisory capacity, Popeck utilized Rawlings Co.'s "hands-on" management policy, regularly interacting with her team members and engaging them in one-on-one discussions about their performance. (Young Dep. 225:17-226:3, Nov. 3, 2016, DN 109-10; Popeck Dep. 105:11-106:3). Throughout her employment, Rawlings Co. paid Popeck a base salary plus commissions. (Popeck Dep. 80:12-13).

During her stint as an ATM, Popeck was diagnosed with irritable bowel syndrome ("IBS"), a digestive disease that caused her to experience severe stomach cramping and sudden diarrhea. (Popeck Aff. ¶¶ 21, 25). According to Popeck, her "IBS episodes tended to strike . . . in the early mornings and late afternoons." (Popeck Aff. ¶ 25). Sometimes she would experience IBS symptoms while at work; on those occasions, she would occupy the nearest bathroom stall, and—"between bouts of diarrhea"—lay "on the floor of the stall with [her] head on [a] sweatshirt, in the fetal position." (Popeck Aff. ¶ 26).

Rawlings Co. first learned of Popeck's medical condition in late November 2013 when she requested leave under the Family and Medical Leave Act ("FMLA"). Upon her request, one of Rawlings Co.'s human resources generalists, Terri Parker ("Parker"), administered the company's FMLA paperwork to Popeck, who submitted it to her doctor, Shelia Rhoads, M.D. ("Dr. Rhoads"). In completing the paperwork, Dr. Rhoads noted that Popeck's IBS mayinterfere with her ability to work and recommended that she work part-time. (2013 FMLA Paperwork, DN 116-14). Thus, in December 2013, Rawlings Co. placed Popeck on intermittent leave, allowing her to arrive to work late and to leave work early as needed. (Popeck Aff. ¶ 5, DN 111-3 [hereinafter Popeck Second Aff.]).

While on intermittent FMLA leave, Popeck failed to meet the expectations that Rawlings Co. sets for its managers.² Indeed, her team's continual underperformance, tardiness, and taking of excessive breaks eventually prompted Kelly Young (Young")—Rawlings Co.'s Director of Operations—to email her the following: "[t]his [i.e., Popeck's team's misconduct] is unacceptable. I see people on your team constantly late and leaving early. What's the plan to address?"³ (Team Member Emails 7). Months later, Popeck met with Young and told him that she believed that her team's productivity suffered because many of her team members were never at their desks. (Popeck Dep. 201:7-202:8; Young Dep. 222:4-14). This comment stood out to Young, so he asked Popeck to create an action plan designed to remedy her team's behavior; he also began observing Popeck's team's work area to "see if whoever she identified [as being absent] was actually there."⁴ (Young Dep. 222:10-11). In doing so, he discovered that Popeck—rather than her team members—was often smoking cigarettes on the loading dock rather than working at her desk. (Young Dep. 222:4-14, 249:24-250:3).

Young informed Ford of Popeck's conduct, and in August 2014 Ford and Young met with Popeck and notified her that she was being demoted to the auditor position. (Young Dep. 252:10-20; Ford Dep. 102:3, 103:15-16, 104:3-4, June 16, 2016, DN 109-5). Young told Popeck during the meeting that her excessive break-taking did not exemplify "model leadership"—particularly in light of the action plan she created for her team. (Popeck Dep. 216:24-217:13). Popeck did not deny that she had been taking excessive breaks or suggest that the breaks she took were related to her IBS. (Ford Dep. 105:24-106:8).

Upset by her demotion, Popeck approached the company's owner, George Rawlings ("Mr. Rawlings"), and asked him to reinstate her as an ATM. (Popeck Aff. ¶ 53). Popeck claims she told Mr. Rawlings that Young had been treating her differently since she began taking FMLA leave, but Mr. Rawlings has testified that "[s]he never mentioned that." (See Popeck Aff. ¶ 53; Rawlings Dep. 114:9-14, Sept. 14, 2016, DN 109-8). In any event, Mr. Rawlings declined to reverse Popeck's demotion but allowed her to maintain an ATM's base salary. (Rawlings Dep. 115:22-116:2).

In October 2014, Popeck's FMLA leave expired, so Ford provided Popeck with the company's Americans with Disabilities Act ("ADA") paperwork and told her that perhaps she could use ADA leave until her FMLA time replenished. (Popeck Dep. 253:17-21; Parker Dep. 164:8-17, Aug. 24, 2016, DN 109-6). In completing Popeck's ADA paperwork, Dr. Rhoads indicated that Popeck did not have a condition that substantially limited a major life activity but recommended that she be allowed to arrive to work late and leave early, as she did while on FMLA leave. (See 2014 ADA Paperwork, DN 116-15). Despite Dr. Rhoads' evaluation, Parker concluded that Popeck was entitled to bridge the gap between her stints of FMLA leave with aone-month term of ADA leave so that she would be able to keep her job.⁵ (Parker Dep. 164:10-12). Rawlings Co. re-designated Popeck's leave as FMLA leave in December 2014. (Ford Dep. 116:4-12).

Around that same time, Popeck was unsuccessfully settling back into her role as an auditor. On November 12, 2014, Popeck's ATM, Diana Chapman ("Chapman"), served her with a written warning indicating that over the course of approximately one month she had accumulated nine instances of tardiness and had left work early on five different occasions. (First Written Warning, DN 116-19). At least five of the instances of Popeck's tardiness—and four of the occasions where she left early—were unrelated to her IBS. (First Written Warning).

In terms of Popeck's work habits and employment at Rawlings Co., 2015 largely resembled 2014—i.e., it was marked by underperformance and excessive absences. Her performance dwindled, as evidenced by Rawlings Co.'s 2015 performance chart which shows that Popeck failed to meet her invoicing expectation in every month except March and April. (See 2015 Performance Chart 1, DN 116-31). In addition, Popeck exhausted all of her FMLA leave in July and sought ADA leave as a "gap-filler" in August.⁶ (2015 ADA Paperwork). Thereafter, Popeck accumulated "26 full day absences" between July and September—even though neither her FMLA nor ADA paperwork said anything about full day absences being necessary.⁷ (Ford Dep. 186:3-4).

In 2015, Popeck began to experience financial problems, partially from Rawlings Co.'s practice of prorating her pay to reflect partial and full day absences, even on days when her leave was designated as ADA rather than FMLA leave. (See Ford Dep. 132:4-10). Popeck approached Mr. Rawlings to ask "if [she] could take an advance against [her] own commissions, because [she] needed some extra money towards rent or bills . . . ."⁸ (Popeck Dep. 297:9-13). Mr. Rawlings told Popeck he was unsure whether such an advance was possible, but that he would find out. (Popeck Dep. 296:3-10). He then contacted Joan O'Brien ("O'Brien"), Vice President of Human Resources, to inquire why Popeck was missing so much work. (O'Brien Dep. 232:10-14, Aug. 25, 2016, DN 109-11). Ford informed O'Brien that she believed that Popeck was on medical leave, so they retrieved Popeck's medical paperwork to confirm that impression.⁹ (Ford Dep. 185:15-20, 185:24-25). When Ford reviewed Popeck's paperwork, she noticed that "the doctor had said no, [Popeck's IBS does] not . . . substantially limit one of life's major activities," and that, in any event, the doctor had not recommended that Popeck take full days off from work. (Ford Dep. 186:1-6).

Upon learning that Popeck's medical paperwork did not establish that she had a disability—much less justify her taking full day absences—Ford took corrective action.¹⁰ Sheissued Popeck a written warning notifying her that her absenteeism rate between July and September had reached 59% and informing her that she "may not miss any more [full days of] work until [she had] a positive accrual balance [of vacation or sick time] or once again [became] eligible and approved for FMLA leave." (Second Written Warning 1, DN 116-26). Ford then advised Popeck that Rawlings Co. needed additional information about her medical issues so that it could evaluate whether Popeck should receive an accommodation of intermittent leave under the ADA. (Requests to Dr. Rhoads 1, DN 116-27). Ford faxed Dr. Rhoads and asked her to confirm that a 59% rate of absenteeism was acceptable given Popeck's condition and whether "it will be necessary for [Popeck]...