Strauthers v. Kellogg Sales Co.

DARLA STRAUTHERS, Plaintiff v. THE KELLOGG SALES COMPANY,d/b/a KELLOGG'S SNACKS, Defendant.

Case No. 16-2530-CM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

January 30, 2018

MEMORANDUM AND ORDER

Plaintiff Darla Strauthers brings this diversity action against her former employer, defendant The Kellogg Sales Company, d/b/a Kellogg's Snacks. Initially, plaintiff brought five claims: (1) Count I: Workers Compensation Retaliation; (2) Count II: Age Discrimination under the Kansas Age Discrimination in Employment Act (KADEA); (3) Count III: Disability Discrimination under the Kansas Act Against Discrimination (KAAD); (4) Count IV: Retaliation; and (5) Count V: Breach of Contract. After defendant moved for summary judgment on all counts (Doc. 48), plaintiff voluntarily abandoned Counts I and V. Plaintiff also implicitly seems to agree that all claims other than those for her termination are barred. Defendant argued that plaintiff did not properly exhaust any claims for earlier actions, and plaintiff's reply brief only addressed her termination. For the following reasons, the court grants defendant's motion as to the remainder of plaintiff's claims.

I. Legal Standards

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

II. Factual Background

Plaintiff does not controvert any of defendant's proposed statement of material facts. The court adopts all of the facts set forth by defendant, and recounts those relevant to the court's decision below.

A. Defendant's Policies and Practices

Defendant owns and operates the food manufacturing facility known as the "Kansas City bakery." The Kansas City bakery has the following departments: Mix/Bake, Shipping, Shop, Sanitation, Warehouse, and Packaging. The Bakery & Confectionery Workers, Local 184-L ("the Union") represents hourly production workers at the Kansas City bakery. The collective bargaining agreement ("CBA") between defendant and the Union governs the terms and conditions of hourly employment at the Kansas City bakery, including employee seniority.

To work in a particular department, employees must have the required qualifications and successfully bid into a job in that department. Employee seniority is determined by department. Within a department, higher-seniority employees can displace lower-seniority employees from their positions. But an employee may not be displaced by an employee with no department seniority—even if that employee requests the job as a disability accommodation.

Under the CBA, defendant may implement and enforce rules governing employee conduct, including attendance. Defendant uses an Absence Control Program. Under this program, employees who are not on attendance probation are given 80 units. Defendant subtracts units for unexcused absences, tardiness, and early leaves—but not for medical leave. Defendant adds back in units forgood attendance. The Program provides that defendant may terminate the employment of an employee whose attendance units are reduced to zero.

Defendant also has a Family Medical Leave Act ("FMLA") policy, which is administered by CIGNA. Eligible employees are entitled to up to twelve weeks of unpaid, job-protected leave. An employee may use FMLA leave if she is eligible, has a doctor's certification, and has available FMLA days. Defendant does not subtract attendance units for FMLA-covered absences.

B. Plaintiff's Background Information

Plaintiff was born in 1962. At all relevant times, plaintiff was a Union member and a bargaining unit employee. Plaintiff understood the CBA's grievance process and has previously utilized it.

Plaintiff suffered a work-related injury in 2009. Beginning in July 2010, plaintiff sought workers' compensation benefits and treatment. By June 2012, plaintiff had reached maximum medical improvement and received a final award of workers' compensation benefits.

C. Defendant's Accommodation of Plaintiff's Work Restrictions

On May 9, 2011, Dr. Peter Bieri evaluated plaintiff for the permanent impairment caused by her 2009 injury. Dr. Bieri issued permanent work restrictions: occasional lifting of 40 pounds, frequent lifting of 20 pounds, constant lifting of 10 pounds, and limited bending and twisting. These restrictions remained in place for the duration of plaintiff's employment.

Between July 2011 and June 2013, members of Human Resources corresponded with plaintiff on numerous occasions about the jobs that plaintiff could perform with her restrictions. Plaintiff wanted to work in the Mix/Bake department (and started there), but she was displaced in August 2011 by a higher-seniority employee in the Mix/Bake department. Plaintiff was then advised that her work restrictions could be accommodated on the "207 project" job, which was in the Packaging department.Over the next two years, plaintiff repeatedly indicated that she wanted to work in the Mix/Bake department instead. Human Resources reiterated that the 207 project job was within plaintiff's restrictions, and that plaintiff was expected to perform that job. Human Resources eventually identified a number of other jobs that plaintiff could perform, but that list did not include the job that plaintiff wanted. As late as July 2013, plaintiff voiced her disagreement with the omission of a particular job in the Mix/Bake department from the list of jobs she could perform. But ultimately, plaintiff continued to work in different positions in the Packaging department (where she had seniority) until her termination.

D. Plaintiff's Termination

Plaintiff is familiar with defendant's Absence Control Program and understands defendant's call-in requirements. Employees who will be absent are expected to call the bakery at least thirty minutes before their shift begins. If the time qualifies as FMLA leave, the employee also must call CIGNA within forty-eight hours of her absence (not twenty-four hours, as plaintiff believed), or the absence will not be excused as FMLA leave.

At times, plaintiff was denied FMLA leave protection because she called CIGNA too late. On March 7, 2013, CIGNA notified plaintiff that her February 28 and March 1, 2013 absences were not approved as FMLA leave because she did not timely report those absences to CIGNA. On October 22, 2013, plaintiff was placed on probation under the Attendance Control Program because her attendance units were at -163. Plaintiff was advised to improve her attendance and warned that her employment would be terminated if she did not do so. On December 17, 2013, plaintiff was again counseled for absenteeism. After she was placed on probation in October, plaintiff accumulated four additional unexcused absences, received several tardies, and was cited for falsifying her time card. Defendant's Human Resources Manager, Zach Hagan, warned plaintiff that if she accrued any further absences ortardies before she improved her attendance to zero attendance units, her employment would be terminated. If she exhausted all of her available FMLA time, or if she did not submit a doctor's certification to CIGNA in support of FMLA, plaintiff's absences were not protected and would be subject to the Absence Control Program.

Plaintiff could monitor her balance of available FMLA days by calling CIGNA or accessing the CIGNA website. She claims that she called "constantly" for that information, and that she was fully aware of how much FMLA leave time she had available. Plaintiff called in absent to the bakery on March 3, 11, 17, and 18, 2014, claiming she was taking these dates off as FMLA leave. But she did not report those absences to CIGNA. At the time of her March 2014 absences, plaintiff was aware that she had previously exhausted her FMLA entitlement. CIGNA sent plaintiff three letters in February 2014, informing her that she had exhausted all of her available FMLA time and that absences after February 10, 2014 would not be protected.

Plaintiff knew she could access defendant's record of her attendance and units at any time. Defendant's attendance records showed that plaintiff had the following record of attendance discipline, unexcused absences, and early out/late in violations of defendant's attendance policy (not including vacation days, workers' compensation leaves, short-term disability leaves or FMLA leaves) in the three years before her termination:

2011

January 17

February 2, 3, 6, 14, 23-27, 28

March 1, 2, 3, 7, 14, 31

April 4, 18 (verbal warning issued), 24-26 (3-day suspension served)

May 18 (written warning issued)

August 6, 16, 19

September 2, 15, 18, 25

October 4 (written warning issued)

2012

April 24-26 (3-day suspension for attendance; 12 hours pay returned to avoid grievance)July 24 (verbal warning issued)

August 3, 14-16 (3-day suspension served)

September 11, 21, 22, 23

2013

January 22, 24, 25 (written warning issued), 29, 30

February 1 (2-day suspension and written warning issued), 19 (third attendance warning issued), 28 (probation notice issued)

March 1, 7-10 (3-day suspension), 14 (termination notice issued), 15, 21

April 18, 19

May 10

July 1, 3, 10, 16, 18, 21, 26

August 2

September 9, 10, 16, 23

October 1, 22 (probation notice/termination warning issued), 24

November 12

December 17 (warned of termination for future violations)

2014

March 3, 11, 17, 18, 29

Plaintiff's attendance units were at -167 as of April 9, 2014, which was plaintiff's final day of work. Mr. Hagan terminated plaintiff's employment on April 10, 2014 for violation of the Absence Control Program. Plaintiff claims that she drafted a grievance protesting her termination, but she did not personally deliver the...