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Carson v. AJN Holdings

November 20, 2006


The opinion of the court was delivered by: Thomas A. Varlan United States District Judge



This civil action is before the Court on five motions: (1) defendants' motion for summary judgment [Doc. 30]; (2) plaintiff's motion to amend his complaint to add a claim of whistle blowing [Doc. 29]; (3) plaintiff's motion to amend his complaint to add a claim of violation of the National Labor Relations Act [Doc. 36 at 3]; (4) plaintiff's motion to amend his complaint to increase his prayer for relief to $8 million [id.]; and (5) defendants' motion to strike [Doc. 46]. The Court will address each motion in turn.

I. Relevant Facts

Plaintiff, Alvin Carson, was hired as a full-time employee by defendant Pepsi Bottling Group ("PBG") in 1998 and was employed there until he was discharged on May 14, 2004, at which point he was working as a forklift driver in PBG's warehouse. [Doc. 31, Att. 1 ("Pl's Dep.") at 28-29.] Plaintiff was given a copy of PBG's Employee Handbook at the beginning of his employment, which he read it and signed a written acknowledgment agreeing to abide by it. [Id. at 39-40.]

In 2003, the attendance policy included in the Employee Handbook was modified to provide that three "no call/no show" absences on the part of an employee within a rolling twelve month period would result in termination of that employee. [Doc. 33, Ex. A ("Attendance Policy") at 2.] A no call/no show absence is defined by the policy as one where an employee either "notifies [his or her] supervisor more than two hours after [the] start of [their] shift" that he or she will be absent or where an employee "never calls [his or her] supervisor and does not show up." [Id.] The policy also provides that in the event of an absence from work, an employee is "responsible for contacting their supervisor directly, prior to the start of their shift. Only leaving a voice mail is unacceptable." [Attendance Policy at 3.] PBG states that the reason for this provision is because "not every supervisor is scheduled to work every day, and they may not be able to check or receive voice mail messages." [Doc. 31 at 3.] Plaintiff was given a copy of this revised attendance policy and reports that he was familiar with it. [Pl's Dep. at 92.]

In 2004, plaintiff accumulated the absences that are at issue in this lawsuit. Plaintiff does not contest that he was absent from work on March 6, 2004, April 24, 2004, and May 13, 2004. [Pl's Dep. at 108, 116-117.] While plaintiff argues that he left voice mails for his immediate supervisor, Larry Maso, on each of those days informing Mr. Maso that he would not be working his scheduled shift, [id. at 120], he also admits to knowing that the new attendance policy made it unacceptable for an employee to only leave a voice mail regarding an absence. [Id. at 104-105.] Mr. Maso states that he never received any of these voice mails. [Doc. 32 at ¶ 4.]

After plaintiff's second no call/no show absence on April 24, 2004, Mr. Maso and David Rookstool, Mr. Maso's immediate supervisor, met with plaintiff to discuss his attendance violations and at this meeting, issued him a written "Disciplinary Action Report" detailing plaintiff's various attendance violations and requesting that he review PBG's attendance policy. [Id. at ¶ 5.] Later that month, plaintiff reported to Mr. Maso that his absence on April 24 was because he was experiencing eye irritation from an injury he had suffered while working two weeks earlier. [Id. at ¶ 7.] Mr. Maso subsequently helped plaintiff complete the paperwork necessary for filing a worker's compensation claim with PBG. [Id.] That claim was processed in accordance with PBG policy, [Doc. 34 at ¶ 8], and plaintiff was reimbursed for the expenses he incurred in getting treatment for his eye injury. [Pl's Dep. at 62.]

After plaintiff's third no call/no show absence on May 14, 2004, plaintiff was informed that he was suspended from work pending further investigation, [id. at ¶ 6], and was ultimately terminated, the reason given to plaintiff being that he had violated the no call/no show provision of PBG's attendance policy. [Doc. 34 at ¶¶ 5-6.]

Plaintiff filed suit in the Circuit Court for Knox County on May 13, 2006, alleging that he was wrongfully discharged by PBG and defendant AGN Holdings, both of whom plaintiff claims were his employers, for "discharging the plaintiff from his employment with them due to plaintiff's worker's compensation claim... ." [Doc. 1, Att. 1 at ¶ 8.] Plaintiff seeks $75,000 in compensatory damages and $250,000 in punitive damages. PBG removed the lawsuit to this Court pursuant to 28 U.S.C. § 1332.

II. Defendants' Motion for Summary Judgment

A. Standard of Review

Under Fed. R. Civ. P. 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.

The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Id. at 249. Thus, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial -- whether, in other words, there are any genuine factual issues that ...

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