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Shoemaker v. Conagra Foods, Inc.

United States District Court, E.D. Tennessee, Greeneville

November 9, 2016

TRACY SHOEMAKER, Plaintiff,
v.
CONAGRA FOODS, INC., Defendant.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Tracy Shoemaker sued her former employer for interference and retaliation under the Family Medical Leave Act ("FMLA"), disability discrimination under the Americans with Disabilities Act ("ADA"), and gender discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"). Defendant ConAgra Foods, Inc. ("ConAgra") has filed a motion for summary judgment [Doc. 41] arguing that all of plaintiff s claims should be dismissed as a matter of law. The parties have filed extensive briefs and supporting documentation in support of and in opposition to the pending motion [Docs. 42, 56, 57, 60, 67, 68, 79], which the Court has carefully reviewed.

         For the reasons set forth herein, the defendant's motion for summary judgment will be GRANTED in part and DENIED in part.

         I. Supplemental Briefing

         Before addressing the merits of the pending motion, the Court finds it necessary to address the issues raised in plaintiffs supplemental brief [Doc. 79]. Plaintiff complains bitterly about the Court's prior decision [Doc. 78] to strike her original 23-page supplemental brief [Doc. 75] and restrict her to the 5-page requirement of E.D. Tenn. L.R. 7.1(d) [see Doc. 79]. Despite being granted leave to re-file a supplemental brief in compliance with Rule 7.1(d), plaintiff contends that this page limitation is unfair, contrary to Seay v. TVA, 339 F.3d 454 (6th Cir. 2003), and (inexplicably) in violation of her 5th Amendment rights and her right to equal protection under law [Doc. 79 at pp. 3-4]. Indeed, three and a half pages of her five-page revised supplemental brief are devoted to the unfairness of being required to follow the rules rather than addressing the merits of her arguments.

         The Court first notes that there is no constitutional right to file a supplemental brief nor has plaintiff cited any authority for such. Seay explains that Fed.R.Civ.P. 56(c) affords a nonmoving party an opportunity to respond to the moving party's summary judgment arguments and that the purpose of this rule extends to situations "where the moving party submits in a reply brief new reasons and evidence in support of its motion for summary judgment." Id. at 481. However, "Seay only mandates that the district court provide an adequate opportunity to respond, not an indefinite opportunity to respond." Key v. Shelby Cty., 551 F.App'x 262, 265 (6th Cir. 2014). More importantly and in contrast to Seay, plaintiff has been granted (twice) the opportunity to file a supplemental brief. Thus, she has requested and received an opportunity to respond to defendant's reply brief before the Court's ruling on summary judgment and that is all that Seay requires.

         Further, plaintiff's complaints as to the page limitations imposed by L.R. 7.1 strain credulity. In response to ConAgra's summary judgment motion, plaintiff filed a 25-page brief [Doc. 56], a 42-page affidavit with supporting exhibits [Doc. 57], and a 10-page response to ConAgra's statement of facts [Doc. 60]. Plaintiff did not request an extension of the 25-page briefing limit in L.R. 7.1(a), although she has arguably done an end-run around the rule by filing multiple pleadings. Similarly, plaintiff did not request an extension of the 5-page limit before filing her supplemental brief. Thus, her complaints about responding in the "limited space available" fall short.

         Finally, the Court notes that part of the difficulty in sifting through this back-and-forth comes from the lack of specificity in plaintiffs complaint, of which defendant has complained. A fair reading of defendant's opening summary judgment brief is that it attempts to address the claims and theories that defendant believes plaintiff may be asserting [see Doc. 42 at pp. 8-9]. After receiving plaintiff's responsive pleading which asserts arguments not addressed in defendant's opening brief, it is not surprising that defendant's reply brief contains "new" arguments and evidence to respond to plaintiffs arguments. As noted, plaintiff was granted leave to respond to defendant's new evidence and arguments. Nothing in Seay, the Federal Rules, or this Court's Local Rules provide an unlimited opportunity to respond or for indefinite briefing. Accordingly, to the extent that plaintiffs revised supplemental response [Doc. 79] can be construed as a motion for relief from the rules applicable to all parties, her motion is DENIED.

         II. Relevant Facts

         Ms. Shoemaker worked for ConAgra for twelve years as a process technician/machine operator at the company's plant in Cocke County, Tennessee [Doc. 57 at ¶¶ 2-3]. Ms. Shoemaker is married to Bruce Shoemaker and they are the parents of two children [Id. at ¶ 1]- In July 2012, plaintiff was terminated from her position at ConAgra for violation of the company's attendance policy [Doc. 1 at ¶ 25; Doc. 41-2 at ¶ 4].

         Under ConAgra's attendance policy, employees accumulate one attendance point per day for absences not covered by the FMLA or otherwise protected by law unless the employee brings in a doctor's note [Doc. 41-3]. If an employee brings in a doctor's note for a continuous period of absence of less than five days, the employee receives only one attendance point for the entirety of the absence. For example, an employee who was absent for four consecutive days and provided a doctor's note would only receive one attendance point instead of four points. If the absence was covered by the FMLA or otherwise protected by law, the employee would not receive any attendance points. An employee who does not accumulate any attendance points within a full calendar month gets his/her total attendance point balance reduced by one point (a.k.a. a "perfect attendance point reduction"). An employee who accumulates ten or more attendance points is subject to termination.

         Plaintiff states that she suffers from a painful back condition for which she periodically seeks chiropractic and medical treatment [Doc. 57 at ¶ 4]. Plaintiffs husband suffers from degenerative bone disease and has been disabled since 2004 [Id.]. Since 2004, plaintiff took intermittent FMLA leave from her job at ConAgra to care for her disabled husband [Id. at ¶ 5]. The physical exertion required to care for her husband occasionally injured plaintiff's back and she has taken FMLA leave to recuperate [Id. at ¶ 12]. Plaintiff periodically discussed her husband's disability with members of ConAgra's Human Resources ("HR") staff and the HR staff handled her requests for FMLA leave [Id. at ¶¶ 5-6]. Plaintiff further claims that her back condition is a disability [Doc. 41-1 at p. 11]. At all relevant times, it is undisputed that plaintiff did not have any work restrictions on lifting and could lift 50 pounds as required by her position [Doc 41-1 at pp. 18, 21-22].

         Plaintiff claims that she took FMLA leave to care for her husband between 2005 and 2007, and again in 2010 [Doc. 41-1 at p. 3]. Her attendance record reflects that some of her FMLA absences are related to her husband, but some dates simply indicate that it was an unspecified FMLA absence [Doc. 41-4]. It is unclear whether all of those unspecified FMLA absences were for plaintiffs own serious health condition or otherwise. For example, plaintiff took FMLA leave to care for her daughter after surgery to remove her tonsils and adenoids in December 2011, but plaintiff's attendance record designates those days as FMLA leave without further explanation as to the reason for the absence [Doc. 57 at ¶ 13; Doc. 41-4 at p. 2].

         At the beginning of 2012, plaintiff had 6.75 attendance points. Plaintiff received the following attendance points and point reductions in 2012 as follows:

• February 5, 2012 .0 point (for a total of 7.75 points)
• March 31, 2012 -1.0 point reduction for perfect attendance (for a total of 6.75 points)
• April 5, 2012 .0 point (for a total of 7.75 points)
• May 9, 2012 .5 point (for a total of 8.25 points)
• May 24, 2012 .0 point (for a total of 9.25 points)
• June 4, 2012 .5 point (for a total of 9.75 points)
• June 11, 2012 .0 point (for a total of 10.75 points)

[Doc. 41-2 at ¶ 9; Doc. 41-4]. Defendant notes that plaintiffs attendance report shows that she missed more than 40 days between January and June 2012 for which she was not assessed attendance points (FMLA leave, paid sick leave, paid personal leave, or absence with a doctor's note) [Doc. 41-2 at ¶ 10]. The only attendance point in dispute is the one for plaintiffs April 5, 2012 absence, and the corresponding failure to benefit from a perfect attendance point reduction for the month of April 2012 [Doc. 41-1 at p. 16].

         Liberty Life Assurance Company of Boston[1] is the FMLA administrator for ConAgra [Doc. 41-1 at p. 17; Doc. 19 at p. 2]. In early April 2012, plaintiff missed work due to a "back re-injury" sustained while caring for her husband [Doc. 57 at ¶ 14]. Plaintiff was required to and did telephone ConAgra's "Attendance Hotline" number to advise ConAgra that she would be absent [Id.]. Plaintiff then telephoned Liberty Life to verbally request FMLA leave for her absences from April 2, 2012 through April 6, 2012 [Id. at ¶¶ 14-15]. After receiving the FMLA certification documents from Liberty Life, ConAgra employees were supposed to fill out the employee section and then have the health care provider complete the documents and fax them to Liberty Life [Id. at ¶ 14]. The record reflects that Liberty Life sent the FMLA medical certification form to plaintiff on April 9, 2012 for completion and that she had requested leave "due to [her] own serious health condition" from April 2, 2012 through April 6, 2012 [Doc. 57-2]. The "Certification of Health Care Provider" form sent to Ms. Shoemaker indicates a request for leave from April 2, 2012 through April 6, 2012 [Doc. 57-3]. Plaintiff acknowledges that the FMLA paperwork must be sent to Liberty Life within 30 days [Doc. 41-1 at p. 17].

         Plaintiff contends that she completed the employee sections on the FMLA forms and took them to her chiropractor, Dr. Randy Modglin, for completion and transmission to Liberty Life [Doc. 57 at ¶ 18]. On April 12, 2012, plaintiff turned in original copies of Dr. Modglin's medical excuses for those absences to ConAgra, one excuse dated April 4 for her absences of April 2 to April 4, and one excuse dated April 9 for her absences April 4 to April 6 [Doc. 57 at ¶ 20; Doc. 57-4]. Both excuses are stamped "REC'D APR 12 2012" [Id.]. ConAgra does not dispute that it received the medical excuses for these absences. Plaintiff now contends that Dr. Modglin misplaced or failed to transmit the FMLA paperwork to Liberty Life [Doc. 41-1 at p. 17].

         On April 24, 2012, Liberty Life notified plaintiff that her FMLA medical certification had not been received [Id. at ¶ 22]. Dr. Modglin's staff could not locate the original FMLA documents, so the office manager and plaintiff prepared a new FMLA medical certification form [Id.]. Plaintiff mistakenly wrote in the requested leave period as April 2 through April 4, 2012, instead of April 2 through April 6, 2012 [Id. at ¶ 23]. Dr. Modglin signed and sent the new form to Liberty Life on May 9, 2012 [Id.; Doc. 57-5].

         On May 9, 2012, Liberty Life advised plaintiff that her request for FMLA leave was denied because she "did not submit and/or fully complete the required documents" for her leave [Doc. 57 at ¶ 25; Doc. 57-6]. The May 9 letter also gave plaintiff seven (7) days to appeal the decision. At the time, plaintiff believed that Liberty Life had not received her second FMLA certification form. On May 11, 2012, Liberty Life advised plaintiff that her request for FMLA leave was approved for April 2 through April 4, 2012, but not for April 5 [Doc. 57 at ¶26; Doc. 57-7].

         Despite this notification from Liberty Life, plaintiff claims she was surprised on June 6, 2012, to learn from ConAgra's HR Generalist Sue Serkosky that she had accumulated 18.25 attendance points and that her April 5 absence had not been covered by FMLA [Doc. 57 at ¶ 29]. After she provided documentation for some of the intervening absences, plaintiff's attendance point total was reduced to 11.25 [Id. at ¶¶ 31-32]. Plaintiff and Ms. Serkosky also discussed correcting the information from Liberty Life so that her April 5 absence would be covered by FMLA and therefore her attendance point total would be reduced by one point [Id. at ΒΆ 34]. Further, plaintiff and Ms. Serkosky discussed that if the attendance point for April 5 was removed, plaintiff would then be eligible to have ...


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