Smith v. Millennium Rail, Inc.

241 F.Supp.3d 1183

Danny SMITH, Plaintiff,

v.MILLENNIUM RAIL, INC., and Mark Baumgardner, Defendants.

Case No. 15–1304–EFM–GLR

United States District Court, D. Kansas.

Signed March 15, 2017

Donald N. Peterson, II, Sean M. McGivern, Graybill & Hazlewood LLC, Wichita, KS, for Plaintiff.

Anthony B. Byergo, Stacy Murrow Bunck, Ogletree, Deakins, Nash, Smoak & Stewart, PC, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

Plaintiff Danny Smith was a repairman/welder for Defendant Millennium Rail, Inc. But Smith had "bad hands." Or more specifically, he suffered from carpal tunnel syndrome, which made it impossible for him to perform his job duties. After taking leave to have surgery, Smith suffered a fall at work and reinjured his hands. Hoping to keep his job, Smith sought transfer to a vacant position within the company that he believed he could perform. But Millennium Rail awarded that job to someone else, so Smith sought leave again to have his hands surgically repaired for the second time. Shortly after taking that leave, Smith received a letter from Millennium Rail giving him two choices: return to work immediately or resign his position. Frustrated and unable to work, Smith chose the latter and his employment with Millennium Rail ended. Smith now brings several claims against his former employer, alleging various violations of the Americans with Disabilities Act ("ADA")¹ and the Family and Medical Leave Act ("FMLA"). He also brings claims under Kansas state law for workers' compensation retaliation and violations related to the Occupational Safety and Health Act ("OSHA"). Smith alleges that his supervisor, Defendant Mark Baumgardner, is also liable for the FMLA violations.² Millennium Rail moves for summary judgment on each of Smith's claims. For the reasons discussed below, the Court grants in part and denies in part Millennium Rail's motion.

I. Factual and Procedural Background³

Before he started working for Millennium Rail, Danny Smith developed carpal tunnel syndrome. Smith's employment with Millennium Rail began in February 2012. During Smith's employment, Millennium Rail was a member of the Watco family of companies. Smith worked as a repairman/welder, repairing railcars at Millennium Rail's facility in Neodesha, Kansas. Defendant Mark Baumgardner was the plant manager at the Neodesha facility.

Millennium Rail monitors employee efficiency in railcar repairs by comparing the estimated time necessary to complete a repair to the actual time that was required. Smith was written up for being 38.8% efficient on a repair in January 2013. The following month, Smith took approved FMLA leave to have carpal tunnel surgery. He returned from leave to the same job with the same pay, title, and responsibilities that he had before.

On March 26, 2013, shortly after returning from leave, Smith suffered a fall at work and reinjured his hands. A doctor treated him with ice, a wrist brace, and ibuprofen. Smith was released to return to work with "activity as tolerated with regard to use of the left hand." Millennium Rail immediately reported the injury to its workers' compensation carrier. Smith claims that he was told by a manager that Millennium Rail did not "want any reportable injuries." Accordingly, Smith asked his doctor to make sure that he would not miss any work for fear of losing his job. In December 2013, Smith was again written up for being 41% efficient. And in February 2014, he was written up a third time for being only 38% efficient on a project. He was suspended from work for three days in late February 2014.

Nearly a year after returning from FMLA leave, on March 6, 2014, Smith's workers' compensation attorney sent Millennium Rail a letter seeking coverage for surgery related to the fall he suffered back in March 2013. In an internal email sent on March 10, Baumgardner wrote that Smith was "one of these guys who never make their time" and that Millennium Rail was "working towards eliminating" Smith.

On March 14, Smith's personal doctor sent Millennium Rail a note stating that until Smith had surgery, he would be unable to use the tools essential to performing his duties. Thus, at this time it was unlikely that Smith could perform any duties of a repairman/welder. Also in March 2014, Smith and another employee, Lee Davis, applied for a switchman position with Millennium Rail. Through his employment, Smith was subject to a collective bargaining agreement. Under the collective bargaining agreement, Millennium Rail based its promotions and transfers on seniority, ability, and fitness. Millennium Rail selected Davis for the switchman position on March 20. Millennium Rail asserts that through his prior job, Davis incidentally received training for the switchman role, and therefore was the more qualified candidate.

His application for a new position unsuccessful, Smith was stuck in a job that he was physically unable to perform. On March 24, Smith submitted FMLA paperwork in order to take leave to have surgery. Upon submitting the paperwork, Smith was told that it looked like it was filled out correctly. But Smith did not confirm that his paperwork was approved—he just turned it in to a receptionist "in good faith that it'd be handled professionally and properly." The FMLA paperwork was accompanied by a doctor's certification, which stated the probable duration of Smith's leave was unknown. The following day, Millennium Rail had Smith evaluated by another physician—Dr. Schwerdtfeger. Dr. Schwerdtfeger notified Millennium Rail that although Smith did not release his complete medical history to her, she was unable to detect any indication of pain or weakness in his hands. She opined that Smith could return to work without any restrictions. From the record, it does not appear that a third medical opinion was ever sought.

Smith attempted to take his leave on April 1, 2014, moving to Oklahoma to stay with his brother because he could not afford to pay for housing while he was not working. Millennium Rail's director of human resources was aware on April 1 that Smith had asked for FMLA leave. But Baumgardner testified that he had no idea why "nothing was ever done about it." There is no evidence that Millennium Rail ever made a determination about Smith's FMLA request. Internal emails circulated at Millennium Rail regarding Smith's leave. Shortly after Smith took leave, Jamie Wilson, Millennium Rail's compliance and claims specialist, wrote:

The doctor that he went to, to get the [light] duty status was and is not the authorized treating physician. Our [doctor] has stated that he is capable of doing his job duties. Have we terminated [Smith] yet? Or what are we doing? You either need to bring him back to work or [terminate]."

The email also addressed Smith's workers' compensation request. Wilson wrote that Millennium Rail was "disputing [Smith's workers' compensation] claim." In another email, she stated that Millennium Rail was "fighting and [has] a good case."

On April 10, Millennium Rail sent Smith a letter instructing him to return to work on April 16 or he would voluntarily resign his employment. Smith did not receive the letter until April 15. Smith testified that although he did not agree with the letter, he understood that the company would consider him having voluntarily resigned his position if he did not show up to work. Specifically, he had the following to say about the letter:

I was not happy to get this letter. I felt very violated. I knew I was off on FMLA. I knew that my doctor gave me legitimate care not because I was paying her, but because it was real care. I knew that their doctor seen me for no more than 10 minutes. Told me and my attorney an entirely different story than what she told Watco and she had no rights to release me back to work on the same day or even the next day without looking the EMGs. No, I was done.

Smith did not report to work or contact anyone at Millennium Rail on April 16. Millennium Rail's paperwork, signed on May 2, reflected that Smith was involuntarily terminated for not working efficiently and missing too much work. Both Mark Baumgardner and Shane Collins—another management level employee—claim that this paperwork was inaccurate, and that Smith was not involuntarily terminated.

Smith has still not been released from the restrictions placed on him in 2014, and he still has not had carpal tunnel surgery. Additionally, he suffers from severe back pain that has gotten worse over time. He has been unable to get his hands or back fixed because he lost his insurance when his employment ended. Smith has applied for other jobs, but has not been able to find work since his employment ended. When asked about his current efforts to find work, Smith testified:

Well, I've kind of given up. I haven't looked in a while. I've always got my ear open and things, but as far as running and putting in an [application], that's a waste of my time because I'm not getting nowhere. I can't—if I did hire on with someone, wouldn't be able to stay on with them very long in this condition.

When pressed on the timeline of when he was seeking employment, Smith noted that he "gave up," looking for work within eight months of his unemployment benefits ending, but "still kind of" looked for employment after that.⁴

Smith brings this action against Millennium Rail. He asserts violations of the ADA and the FMLA. He also brings two claims under Kansas common law. For damages, Smith seeks wages and benefits, liquidated damages, compensatory damages for mental anguish and distress, punitive damages, and attorneys' fees. Millennium Rail now moves for summary judgment on each of Smith's claims. Millennium Rail also seeks judgment that Smith is precluded from recovering damages for wages, benefits, and back pay.

II. Legal Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to...