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Barnes v. CoxCom, LLC

United States District Court, N.D. Oklahoma

February 7, 2018

COXCOM, LLC d/b/a Cox Communications, Defendant.



         Before the Court is Defendant CoxCom, LLC (“Defendant”)'s Motion for Summary Judgment and Brief in Support (“Motion for Summary Judgment”) (Doc. 32). For reasons discussed below, Defendant's Motion for Summary Judgment is GRANTED.

         I. Factual Background[1]

         A. Plaintiff's Employment at Cox

         Defendant hired Plaintiff Kutrell Barnes (“Plaintiff”) on September 15, 2014, as a Communications Center Specialist I, in Tulsa, Oklahoma. Plaintiff was an at-will employee. (Def. Ex. 1.) Throughout his employment with Defendant, Plaintiff worked Tuesday to Saturday and reported to Christi Gladden (“Gladden”). On occasions when Gladden was not available, Plaintiff also reported to other supervisors, including Sheryl Lay (“Lay”). (Pl. Ex. 4, 118:13-120:1.)

         At all relevant times, Defendant's Attendance Policy (“Attendance Policy”) assigned employees “occurrences” for failing to work an entire shift, for arriving to work late or leaving early. An employee was assigned half an occurrence for a late arrival or early departure, and one full occurrence for an unscheduled absence. (Def. Ex. 6, 8.) Scheduled and approved absences, including leave taken under the Family Medical Leave Act (“FMLA”), were excluded from this policy. Presenting a doctor's note for an unscheduled absence allowed a two-day absence to count as one occurrence. This policy was available for employees to review on Defendant's “MyAxis” system.

         The Attendance Policy changed shortly after Plaintiff began his employment with Defendant, increasing the number of occurrences necessary for each level of discipline by one. Effective January 1, 2015, employees were disciplined for unscheduled tardies and absences as follows: a Documented Verbal Warning after six occurrences, a Written Warning after seven occurrences, and a Final Written Warning after eight occurrences. An employee was terminated when he or she accrued nine occurrences in a twelve-month period. During the transition between the 2014 version and the more lenient 2015 version, an employee who had been issued a warning under the 2014 Attendance Policy was reissued that same warning on his or her next occurrence. Additionally, under the 2015 policy all occurrences remained on an employee's record for twelve months after they occurred.

         Plaintiff had attendance problems throughout his employment with Defendant. On November 15, 2014, pursuant to the 2014 version of the Attendance Policy, Gladden issued Plaintiff a Documented Verbal Warning in response to five and a half occurrences. (Def. Ex. 5.) After another unscheduled absence on December 14, 2014, Gladden issued Plaintiff a Written Warning. Gladden also counseled Plaintiff about his attendance issues. On his 2014 evaluation, Plaintiff received a “Meets Expectations” rating as well as an instruction from Gladden to “focus on his attendance.” (Def. Ex. 10.) Later, on both February 3 and March 4, 2015, Gladden counseled Plaintiff about taking extended breaks, lunches, and personal time. On March 19, 2015, Gladden also provided Plaintiff with a coaching letter, encouraging him to make the adjustments necessary for an acceptable improvement level, and informing him that she would be monitoring his performance over the next ninety days. On the same date, she reissued Plaintiff a Written Warning for accumulating seven and a half occurrences, based on two unscheduled tardies on February 17 and March 7, 2015. (Def. Ex. 12.)

         On Plaintiff's mid-year evaluation dated July 31, 2015, Gladden once again discussed his attendance, noting that she would like him “to fully focus on his attendance to ensure he successfully completes his corrective action plan.” (Def. Ex. 14.) After Plaintiff's mid-year evaluation, one of Plaintiff's occurrences “dropped” under the Attendance Policy, as it fell outside the rolling twelve-month period. Another occurrence dropped on October 7, 2015, and another half occurrence dropped on October 14, 2015. During this time, Plaintiff also accrued occurrences for unscheduled absences on October 1, 2015, and October 15, 2015. Accordingly, Gladden issued Plaintiff another Written Warning on October 16, 2015, for having seven occurrences within a rolling twelve-month period. All Written Warnings, as well as the coaching letter, noted that continued attendance issues might result in termination. (Def. Ex. 5, 7, 11, 12, 13, and 15.)

         B. Plaintiff's Initial FMLA Leave

         On October 25, 2015, Plaintiff injured his Achilles' tendon playing basketball. On October 27, 2015, Plaintiff told Gladden that he would need surgery to repair his Achilles' tendon, and that he would need FMLA leave. (Def. Ex. 2, at 89:5-9.) Gladden gave Plaintiff the phone number to call Unum, Defendant's third-party administrator for FMLA and short-term disability (“STD”), to inquire about his eligibility. That same day, Plaintiff applied for FMLA and STD benefits with Unum.

         Plaintiff was on continuous FMLA/STD leave from October 27 through December 17, 2015. During this time, he received six weeks of full pay and benefits while he underwent surgery to repair his Achilles' tendon and recovered. While Plaintiff was on leave, Gladden completed his annual evaluation for 2015. Plaintiff received a “Meets Expectations” rating on this evaluation, as well as a $1.01 per hour pay raise, effective upon his return to work. Gladden also instructed Plaintiff, “I encourage you to focus on your attendance; successfully completing your corrective action plan.” (Def. Ex. 22.) On December 17, 2015, Plaintiff's doctor cleared him to return to work with no restrictions, although he was required to wear a medical boot and to remain seated. (Pl. Ex. 5.)

         C. Plaintiff's Return to Work and Subsequent Termination

         Plaintiff was scheduled to return to work on December 19, 2015. He did not report to work that day and was assigned one occurrence. Plaintiff also had unscheduled absences from work on December 23 and 24, 2015. He was assigned an occurrence for each of those days.

         On December 23, 2015, Plaintiff left a telephone message on Defendant's Employee Status Line at 10:00 a.m., stating that he had “[taken] some pain medication and overslept, ” but would “be at work shortly.” (Def. Ex. 3.) He also spoke to supervisor Lay. Though the contents of this call are disputed, Plaintiff contends that he told Lay he had reinjured his Achilles' tendon getting out of bed, and that a member of his doctor's staff had told him to “resume my medicine that I was taking for-for a couple of days and stay off of it.” (Pl. Ex. 4, at 120:4-11.) Plaintiff contends Lay informed him that he would not need to contact Unum to request his FMLA/STD benefits if he would only be absent for two days, but that if he would be absent for three or more days, then he would need to do so. (Id. at 121:7-12.) At approximately 5:38 p.m., Plaintiff left another message on the Employee Status Line indicating that he would not be at work, as he might have ripped some scar tissue, and he had been told to return to “non-weight bearing” activity and continue taking Demerol. He also stated that his doctor was unavailable until January 5, 2016, but that he had spoken with a member of the doctor's staff. Plaintiff was also absent the following day, December 24, 2015.

         After his absence on December 24, 2015, Plaintiff was tardy on December 26, 2015, stating that his apartment had been broken into overnight. He was assigned half an occurrence for this tardy. Plaintiff was also tardy for his scheduled shifts on January 1 and 6, 2016, and was assigned half an occurrence for each date. Defendant determined that, including the two occurrences on December 23 and 24, 2015, Plaintiff had nine and a half occurrences under the Attendance Policy.

         Gladden asked Melissa Cruts (“Cruts”), Defendant's Human Resources Manager, whether Plaintiff was on FMLA “protected leave” status on those December 23, 24, and 26, 2015. (Pl. Resp. Br., Doc. 38, at 8). After Cruts indicated that he was not, Gladden asked Plaintiff at least once before January 6, 2016 to provide a doctor's note.[2] Plaintiff never provided this note. Both Cruts and Gladden knew that Plaintiff had been on FMLA from October 27 through December 17, 2015. (Pl. Resp. Br., at 15-16).

         Gladden conducted Plaintiff's annual review on January 6, 2016, in which she reviewed the annual evaluation that she had completed while he was on leave. She did not mention that Plaintiff's absences on December 23 and 24, 2015 counted as occurrences, and did not mention that, if Plaintiff produced a doctor's note pursuant to those two absences, they would only count as one occurrence, reducing his occurrence total to eight and a half, below the nine that trigger termination. She also did not mention that she planned to begin termination review of Plaintiff. (Pl. Resp. Br., at 13; Pl. Ex. 8.) Cruts and Gladden participated in an email thread on January 11, 2016 beginning termination review and seeking approval for Plaintiff's termination, but neither Cruts nor Gladden mentioned on the thread that the December 23 and 24, 2015 absences might have been covered by FMLA. (Pl. Ex. 9; Pl. Resp. Br., at 16).

         Plaintiff was terminated on January 12, 2016, in a meeting with Gladden and another employee of Defendant, Joe Scranton (“Scranton”). Gladden did not issue Plaintiff a Final Written Warning prior to terminating his employment. (Pl. Resp. Br., at 14). In the termination meeting, Gladden and Scranton told Plaintiff that he was being discharged because of his attendance. At his request, they showed him a list of the days he was absent or tardy. Plaintiff contends that he told Gladden and Scranton that he believed that the December 23 and 24, 2015 absences were protected by FMLA. (Pl. Resp. Br., at 13-14). Later, Gladden wrote a memorandum to file about this meeting. She addressed Plaintiff's failure to produce a doctor's note, but not the fact that Plaintiff claimed that his absences were covered by FMLA. (Pl. Ex. 9.) After his termination by Defendant, Plaintiff began work at EAN Holdings LLC, operating as Enterprise Rent-a-Car, as an account coordinator, on March 23, 2016.

         D. Procedural History

         Plaintiff filed this action on December 28, 2016, and filed an Amended Complaint on May 16, 2017. In his Amended Complaint, Plaintiff brought claims of FMLA interference and FMLA retaliation. On November 29, 2017, Defendant filed its Motion for Summary Judgment.

         II. Summary Judgment Standard

         Summary judgment is proper only if “there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). In its summary judgment analysis, the Court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking to overcome a motion for summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         A movant that “will not bear the burden of persuasion at trial need not negate the nonmovant's claim, ” but may “simply . . . point[] out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima facie showing, “the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Id. (citing Fed.R.Civ.P. 56(e)). To meet this burden, the nonmovant must set forth facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Id. (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)). “In response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion, and may not escape summary ...

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