United States District Court, E.D. Tennessee, Greeneville
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
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.
reasons set forth herein, the defendant's motion for
summary judgment will be GRANTED in part and DENIED in part.
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.
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.
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.
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.
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].
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.
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,
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.
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
• 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.
Life Assurance Company of Boston 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].
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].
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].
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].
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 ¶ 34]. Further,
plaintiff and Ms. Serkosky discussed that if the attendance
point for April 5 was removed, plaintiff would then be
eligible to have ...