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Webb v. United Parcel Service

October 2, 2007

DEAN WEBB, PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC., DEFENDANT.



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

VARLAN/SHIRLEY

MEMORANDUM OPINION

Plaintiff Dean Webb ("Webb") brings this action pursuant to the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., against his former employer United Parcel Service, Inc. ("UPS"). In particular, Webb claims that UPS unlawfully terminated his employment on October 12, 2004, after he sought FMLA leave based on his need to assist his wife as she battled "a life threatening and serious health condition." [See Doc. 1, p.3].

This matter is presently before the Court on UPS's motion for summary judgment [Doc. 16]. The issues raised have been well briefed by the parties [see Docs. 17, 19, and 20] so that this matter is now ripe for adjudication. Because the Court concludes that Webb was not an eligible employee as defined under the FMLA, UPS's motion will be granted and this case will be dismissed with prejudice.*fn1

I. Relevant Facts

The facts of this case will, of course, be viewed in a light most favorable to Webb. In 1990, Webb began working for UPS as a seasonal employee in the Knoxville, Tennessee hub [see Doc. 16-2, p.2].*fn2 After he was laid off, Webb returned to the Knoxville hub in 1991 as a part-time employee for UPS working the "preload."*fn3 [Id.]. In 2001, Webb became a full-time "combo employee" working two different part-time shifts for two different supervisors that, when combined, created a full-time position with UPS [id. at pp.2-3]. More specifically, Webb worked one-half of his shift in the carwash from approximately 11:00 p.m. to 3:30 a.m. and one-half of his shift as a "charger" from approximately 4:00 a.m. to 8:00 a.m. [id.; see also Doc. 16-2, p.5 and Doc. 16-3, pp.4-5]. As a charger, Webb was responsible for separating packages as they arrived at the UPS facility to be loaded onto package delivery cars [Doc. 16-2, p.3; Doc. 16-3, pp.2-3].

Webb's supervisor on the preload shift for the last twelve months of his employment (the critical time period for FMLA purposes) was Karen Hurst ("Hurst") [Doc. 16-2, p.6]. Hurst in turn was supervised by Danny Richardson ("Richardson"), the Preload Manager [Doc. 16-4, p.2].

In the first prong of its motion, UPS contends that Webb was not eligible for FMLA leave because he had not been employed for at least 1,250 hours of service during the twelve-month period immediately preceding his leave request. See 29 U.S.C. § 2611(2)(A)(ii). It is undisputed that Webb informed Richardson on September 17, 2004, that his wife was ill and that he needed to take some leave in order to care for her [Doc. 16-2, pp.12, 14-15, and 32; see also Doc. 16-4, pp.3-4]. Thus, the critical twelve-month period to determine whether Webb worked the requisite number of hours would be from September 17, 2003, to September 17, 2004.

With respect to that period of time, Hurst testifies that Webb's absenteeism from work was, by any measure, excessive [see Doc. 16-8, p.2]. For example, from November 2003 to September 2004, Webb had more than 40 documented unapproved absences from his preload shift alone [id.; see also Doc. 16-9, p.2]. Furthermore, according to the testimony of both Hurst and Richardson, Webb's supervisors spoke with him about his absenteeism on at least ten occasions and requested discipline for his absenteeism on numerous occasions [see Doc. 16-8, pp.2-3; Doc. 16-10, pp.2-4; and Doc. 16-4, p.8]. Additionally, Webb's supervisors requested an "Intent to Discharge Notice" due to his absences from work on four separate occasions and filed a "Warning Notice" on one other occasion [see Doc. 16-11, pp.2-10]. Because Webb was a member of the union,*fn4 his employment was governed by the collective bargaining agreement and he could not be terminated without progressive discipline [Doc. 16-2, pp.4 and 47-48]. Moreover, this agreement allows the labor manager to lessen an employee's punishment if he deems it appropriate; therefore, on several occasions when Webb's supervisors requested one form of discipline, a lesser form of discipline was imposed [id. at pp.34-39].

It is also undisputed that in June 2004, Webb was caught sleeping on the job and, as a result, UPS terminated his employment [id. at pp.13 and 40-45; Doc. 16-4, p.18]. Webb then filed a grievance challenging that termination decision in order to obtain reinstatement [Doc. 16-2, p.13]. Webb's grievance was denied at the local level; however, a panel consisting of an equal number of union and company representatives reduced Webb's termination to a ten-day suspension without pay [id. at pp.15-16 and 40-45; Doc. 16-4, p.18]. Consequently, Webb was permitted to return to work on either September 6 or 7, 2004 [Doc. 16-14, p.2].*fn5

After returning to work from his suspension on or about September 7, 2004, Webb's attendance issues persisted [see Doc. 16-8, p.3]. In fact, UPS's records reflect that Webb's problems began on the very first day back from his suspension (according to this memo, September 7, 2004), when he took "excessive bathroom breaks." [Doc. 16-12, p.16]. As it turned out, Webb only worked 6.68 hours that first day [id.]. UPS's records also reflect that during the first ten days of employment in September 2004 after his suspension, Webb missed two days, was late three days, and left early on two other days [see id. at pp.17-19]. Additionally, Webb failed to show up for an entire shift on September 20, 2004 [id. at p.19]. As it turned out, September 17, 2004, was the last day when Webb actually showed up for work at UPS but, on that day, Webb was so sick from vomiting and diarrhea that UPS had an ambulance take him to Fort Sanders Hospital [see Doc. 16-2, pp.49-51]. However, upon his arrival at the hospital, Webb refused treatment [see id. at pp.50-51].

As previously noted, September 17, 2004, was also the date on which Webb informed Richardson that his wife was ill and that he wanted to take leave. It is undisputed that Richardson escorted Webb to the Human Resources Office and arranged for him to obtain the appropriate FMLA certification forms [see Doc. 16-2, p.17; Doc. 16-4, pp.3-5]. Although there is some dispute about what transpired over the next few weeks regarding these FMLA forms,*fn6 there is no dispute that Webb quit coming to work after dropping off his FMLA forms, regardless of whether they were complete or incomplete [see Doc. 16-2, pp.29-30]. Moreover, Webb admits that no one from UPS ever granted him FMLA leave nor gave him permission to take any kind of leave [id. at pp.21-22 and 30].

On October 1, 2004, UPS sent a letter to Webb informing him that he was not on approved leave and instructing him to return to work [id. at pp.31 and 66]. UPS, however, never received a response to this letter and thus sent another letter terminating Webb's employment on October 12, 2004 [id. at pp.31 and 67].

In support of its motion for summary judgment, UPS relies heavily on its payroll records, which set forth the hours an employee works and was paid and also sets forth the number of hours paid but not worked, such as sick days or vacation days [Doc. 16-7, pp.2-59; see also Doc. 16-6, p.2]. Karen Gebbs, the Finance Supervisor in UPS's Nashville, Tennessee facility, testifies as ...


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