Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01009-EWN-MEH

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LEXSEE RICK RIGGS, Plaintiff, vs. PILKINGTON, JENNIFER DILLON, BILL TERRELL, and TRACEY ALEXANDER, Defendants. 1:03-cv-1554-JDT-WTL UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION 2005 U.S. Dist. LEXIS 16956 April 20, 2005, Decided NOTICE: [*1] NOT PUBLICATION IN PRINT INTENDED FOR comes before the court on the Defendants' motion for summary judgment. The court finds as follows: [*2]

COUNSEL: For PILKINGTON, Defendant: Robert C. Ludolph, PEPPER HAMILTON LLP, Detroit, MI; Steven F. Pockrass, ICE MILLER, Indianapolis, IN; James P. Thomas, PEPPER HAMILTON LLP, Pittsburgh, PA. For RICK RIGGS, Plaintiff: Gregory A. Stowers, STOWERS WEDDLE & HENN PC, Indianapolis, IN. JUDGES: John Daniel Tinder, Judge. OPINIONBY: John D. Tinder OPINION: ENTRY ON MOTION FOR JUDGMENT (DOCKET NO. 27) n1 SUMMARY

n2 Plaintiff's complaint also contained a claim brought pursuant to the Indiana Wage Statute, Indiana Code § 22-2-5-2 (Count IX). However, this claim has now been withdrawn by joint stipulation of the parties. (Riggs Dep. at 206.)

I. BACKGROUND n3 n3 The facts described in this section are either undisputed, or if disputed, viewed in the light most favorable to Plaintiff with all reasonable inferences based on the facts drawn in his favor. Defendant Pilkington manufactures glass for the automotive industry at its facility in Shelbyville, Indiana. Plaintiff Riggs was originally hired by the company in 1991 to work in the "mold shop." In 1995, Riggs transferred to the maintenance department, where he was employed as a maintenance technician. Several years later, Riggs became a service technician. In December [*3] of 2002, Riggs bid on and received a promotion to Total Production Maintenance Coordinator ("TPMC") for Team 1, a team of production employees who were assigned to several different production lines within the plant. As one of five line TPMCs, Riggs reported to Jennifer Dillon, the plant TPMC, who in turn reported to Bill Terrell, a member of management and the head of maintenance and engineering. The responsibilities and demands of being a TPMC were somewhat greater than those involved in the positions previously held by Riggs. Among other things, as a

n1 This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings. On October 22, 2003, Plaintiff Rick Riggs filed a complaint against Defendants Pilkington, Jennifer Dillon, Bill Terrell, and Tracey Alexander, alleging multiple violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. n2 This matter now

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TPMC Riggs was responsible for resolving maintenance issues, assisting Team 1 with achieving performance targets, and improving Team 1's performance through the planning and coordination of maintenance activities. For example, when a production line to which Team 1 was assigned experienced a breakdown or maintenance issue of any kind, Riggs was responsible for getting production back on line and for permanently resolving the "root" cause of the problem. If an outside contractor or someone from another department was required to make a repair, a TPMC such as Riggs was still required to remain involved with and informed about the [*4] repair status. Shortly after his promotion, Riggs was disciplined for action that he took in his capacity as TPMC. On January 14, 2003, Riggs received a "Verbal Corrective Action" for causing a forty-five minute delay in the startup of one of his assigned lines. The delay resulted from Riggs' misinterpretation or misunderstanding of a comment made by a member of an earlier shift about a possible "bad motor drive" in the line. Unfortunately, in May 2003 Riggs injured his eye while at home and was unable to report to work for seven days. Upon his return from medical leave, Riggs ran into trouble with a machine called "Robicon" in late May or early June of 2003. The Robicon operates blast heads that blow high-pressure air over newly produced glass in order to cool it. During one of his shifts, Riggs was faced with several operational problems involving the Robicon. After repeated difficulties with a "fault," Riggs called engineering for assistance. Such a response frustrated Pilkington management. Later in the same day, Riggs was called into Terrell's office for counseling about the incident. Pilkington felt that Riggs should have done further investigation into the Robicon's problems [*5] before calling engineering. Riggs considered the problem to be routine, and states that the only thing addressed at the meeting was the need to document in a journal any and all future problems with the machine as they happen. On June 10, 2003, Riggs and Pilkington management had another conflict. Riggs was counseled after Terrell hired an outside contractor to fix a problem on a production line that he thought Riggs had allowed to go uncorrected for two weeks. Riggs said the problem was minor and was fixed within twenty minutes. The next day, however, Riggs was reprimanded after being caught unaware that the outside contractor was at the facility and working on a line for which he as TPMC was responsible. According to Riggs, he was unaware of the repair situation simply because he had been away from the floor that day due to a mandatory training session. Nevertheless, Pilkington prepared a "second-level job in jeopardy' Corrective Action Plan" for Riggs on June 12, 2003. The Plan outlined various performance issues with

respect to Riggs, including a rise in his line's downtime, failing to properly resolve maintenance problems, leaving the plant before problems were resolved, and [*6] failing to document daily work. The Plan was presented to Riggs during a meeting with Dillon, Terrell, and others on June 18, 2003. Riggs appreciated the seriousness of the Plan and understood that his job was in jeopardy. However, Riggs believed that the goal of the meeting was simply for him to become more aggressive when requesting assistance from engineering. The straw that broke the camel's back, at least from Pilkington's perspective, was an incident involving Riggs' use of duct tape to solve a problem on one of his lines. On June 12, 2003, the team leader for Line 1, Joe Nottolini, advised Riggs that a washer on the line was experiencing "voids" due to wet glass. Riggs responded by placing duct tape over the area where the water was located on the glass. Nottolini was displeased with the way Riggs attempted to resolve the problem, and he sent an e-mail to Terrell and Dillon informing them as such. Despite Nottolini's reservations, Riggs claims both Terrell and Dillon approved of his use of the duct tape "as long as it worked." The situation came to a head on June 25, 2003, when the duct tape on Line 1 came loose, stuck to a piece of glass, and ran through the furnace. This [*7] caused the tape to melt and adhere to a roller, which then left marks on each piece of glass that subsequently ran through the line. As a result, ten pieces of glass were ruined and the line had to be shut down for approximately six hours. Riggs was counseled on the day of the duct tape incident in a meeting with Terrell, Dillon, and Tracey Alexander, a human resources manager. Rather than terminate Riggs immediately, Pilkington presented him with two options. The first option was for Riggs to work under a "protected environment" for ninety days while he looked for other employment. At the end of ninety days, or upon the procurement of other employment, whichever came first, Riggs was to resign from the company. The second option allowed Riggs to continue in the same position with the understanding that the next performance issue of any type would result in immediate termination. Pilkington asked Riggs to advise management of his decision by June 27, 2003. n4 At his request, Riggs was allowed to go home for the remainder of June 25.

n4 For reasons described below, Riggs never had the chance to select between the two options. [*8] Riggs failed to report for work on June 26, the day after Pilkington presented him with the two options. On June 27, the company received a letter from Riggs' phy-

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sician stating that Riggs was unavailable for work due to medical reasons "resulting from stress due to pressure from personnel on his job performance." The doctor also advised that Riggs could not address any work-related issues until he was released from his care. On September 8, 2003, Riggs returned to work but was limited to light duty pursuant to his doctor's orders. Upon his return, Pilkington immediately terminated his employment. The company told Riggs that new information about the duct tape incident had come to light. Specifically, Pilkington indicated that an employee, Gary Shearer, told the company during Riggs' absence that he had instructed Riggs to remove the duct tape on June 24, 2003, and that Riggs had agreed to do so. Pilkington viewed Riggs1 failure to follow Shearer's direction as insubordination, which, when added to the other deficiencies it found in Riggs' performance, led to the termination decision. Riggs denies that Shearer ever gave him an instruction about the duct tape, or that he would have [*9] had the authority to do so. Following his termination, Pilkington honored the offer it made to Riggs on June 25 and continued to pay him for ninety days. II. DISCUSSION A. Standard of Review The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When analyzing a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light most reasonably favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). [*10] B. FMLA Claims Based on the Defendants' refusal to allow him to return to the position that he held prior to his medical leave, Riggs sets forth two causes of action: (1) deprivation of substantive rights under the FMLA; and (2) retaliation for taking leave under the FMLA. n5 Each claim will be addressed in turn.

n5 Riggs cites globally to the "FMLA" in both his complaint and responsive brief, forcing the court and opposing counsel to discern for themselves what specific code sections he is attempting to rely upon. Such a practice is both unhelpful and unappreciated. i. Substantive FMLA rights Riggs presumably alleges that by not restating him to a TPMC position, the Defendants violated 29 U.S.C. § 2614(a)(1). This provision provides that "any eligible employee who takes leave . . . shall be entitled, on return from such leave -- (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent [*11] position. . . ." 29 U.S.C. § 2614(a)(1). However, the statutory right to reinstatement is not absolute. Ogborn v. United Food & Commercial Workers Union, Local No. 881, 305 F.3d 763, 768 (7th Cir. 2002). The FMLA "does not confer benefits to which an employee would not be entitled had the employee not taken leave." Id.; 29 U.S.C. § 2614(a)(3)(B). Accordingly, "employers may fire employees for poor performance if they would have fired them for their performance regardless of their having taken leave." Ogborn, 305 F.3d at 768 (citations omitted). At the summary judgment stage, the employee who alleges a substantive violation of the FMLA must first demonstrate by a preponderance of the evidence that he is entitled to the benefit he claims. Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 804 (7th Cir. 2001). If he does so, "the employer may then present evidence to show that the employee would not have been entitled to her position even if she had not taken leave." Id. (citation omitted). The ultimate burden rests on the employee, and as such he "must then overcome the employer's [*12] assertion." Id. Therefore, in the instant case, Riggs must demonstrate that he was entitled to be reinstated as a TPMC. To make such a showing, he is required to prove that the Defendants would not have discharged him had he not taken leave. See id. at 804-05. Riggs argues that he was terminated solely for instances of poor performance that arose prior to his medical leave, and thus that a fair inference can be drawn that he would not have been fired if he had not taken said leave. The Defendants respond by claiming that Riggs would have been terminated regardless of whether he took medical leave due to a combination of poor performance and insubordination-the latter of which went undiscovered until after Riggs was already on leave. Riggs discounts the insubordination issue by simply say-

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ing it is untrue, or at least that it amounts to a mischaracterization of the circumstances. In this case, the record is rife with examples of performance-related disciplinary actions taken against Riggs. Specifically, Riggs received his first disciplinary "write up" as early as January of 2003 because of downtime on one of his lines, and he was put on "job in jeopardy" status [*13] in June of 2003 following incidents with the Robicon machine and an outside contractor. Meetings with management generally accompanied each instance of discipline, and Riggs was repeatedly informed that his employment relationship with the company was on thin ice. Just prior to his period of leave that started on June 25, 2003, Riggs was presented with two options: resign after ninety days, or stay on with the company knowing that the next mistake would lead to instant dismissal. The court is sympathetic to Riggs' position in his briefs and deposition testimony that the Defendants' disciplinary methods and ultimatums may have been too harsh or inappropriate under the circumstances, but as the Seventh Circuit has said on numerous occasions, it is not the role of courts "to tell employers how to discipline employees; rather, it is to ensure that the process is not discriminatory." Kohls, 259 F.3d at 805 (citation omitted). However, Riggs correctly notes that a closer issue is presented by the fact that the performance issues cited above all occurred prior to his period of medical leave. In Kohls, the court stated:

The Defendants' position regarding the insubordination issue is troubling for several reasons. For one thing, Riggs denies that Shearer ever told him to remove the duct tape at issue. Moreover, the record is unclear as to what Shearer's position in the chain-of-command was in comparison to Riggs. In his deposition [*15] testimony, Shearer states that in his view Riggs did not have the option to disregard his command to remove the duct tape. (Shearer Dep. at 27.) However, during that same testimony, Shearer admits that as TPMC, Riggs had the discretion to decide what should be done in terms of maintenance fixes on the line, and further that he could not directly discipline Riggs but would instead have to go through both Nottolini and Dillon if he perceived a problem in Riggs' performance. (Id. at 30-31.) Such testimony as to his role in the power chain at Pilkington conflicts with that of Dillon, who states that Shearer was a part of the management team (though not an actual manager) who had direct authority over Riggs. (Dillon Dep. at 60.) Most troubling, though, are the circumstances surrounding how Pilkington learned of Shearer's role in the duct tape incident and when the company decided to relay that information to Riggs. Riggs began his final period of medical leave on June 25, 2003. Shearer was absent on June 25, and claims to have told Nottolini of his command to Riggs regarding the tape on June 27. Dillon does not recall when Nottolini told her about Shearer's statements, but admits that [*16] it could have been as early as June or as late as August of 2003. (Id. at 56.) According to Shearer, Dillon asked him to send her an e-mail describing the duct tape incident on August 21, 2003. (Shearer Dep. at 22.) Riggs was fired upon returning to work on September 8, 2003, or approximately two weeks after Dillon requested the e-mail from Shearer. Thus, none of the Defendants informed Riggs of his "insubordination" until more than two months after it is alleged to have occurred. The Defendants did not inform Riggs that he could be terminated on the spot when they met with him to discuss the duct tape incident on June 25. In other words, immediate termination was not one of the "options" given to Riggs at that time. Furthermore, as indicated by the e-mail exchange between Shearer and Dillon, the importance of Shearer's role in the duct tape incident suspiciously appears to have grown in the minds of the Defendants only as the date for Riggs' return to work grew closer. The foregoing facts regarding Riggs' alleged insubordination all counsel against granting summary judgment in favor of the Defendants on the issue of whether Riggs' substantive FMLA rights were violated. When the [*17] Defendants met with Riggs on June 25 to discuss the duct tape problem, they presented him with two options. Neither of those options consisted of immediate

we can imagine circumstances in which the [*14] timing of [the termination decision] could lead a fact finder to infer that the employee would not have been fired absent her taking of leave (if, for example, a supervisor who had been aware of problems with an employee did not decide to fire the employee until she took leave, and the supervisor based the firing on the incidents of which the employer had already been aware).

259 F.3d at 806. The Defendants appreciate the foregoing language, and respond by pointing to the evidence of "insubordination" they received after Riggs took leave. Riggs argues that the Defendants' insubordination claim is insufficient because Shearer never told him to remove the duct tape that caused the problem on June 25, and further that even if Shearer did tell him to remove it, Shearer had no authority over him so that his failure to act could not be considered insubordination.

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discharge. The only change in circumstance between June 25 and Riggs' return to work on September 8 was the introduction of Shearer's comments into the mix. However, in light of the factual disputes surrounding Shearer's actual statement to Riggs, the differing views of Shearer's position within the chain-of-command at Pilkington, and the suspicious timing of when Dillon learned of Shearer's participation in the duct tape incident in relation to when Riggs was terminated, the court cannot conclude that there are no genuine issues of material facts with respect to the insubordination issue. As such, the undisputed facts of this case correspond directly to those in the Kohls court's hypothesis: Riggs was terminated solely for conduct that occurred prior to his medical leave. A reasonable inference can then be drawn that Riggs would not have been fired absent his taking of medical leave, making summary judgment on this point inappropriate. ii. Retaliation Riggs' retaliation claim is apparently premised on 29 U.S.C. § 2615 (a)(2), [*18] the provision making it "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the FMLA]." The Seventh Circuit issued its decision in Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640 (7th Cir. 2002), in order to clarify the proper methods for evaluating summary judgment in retaliatory discharge cases. Stone demonstrates that Riggs can pursue either a direct or indirect route in his attempt to prevent summary judgment on his FMLA retaliation claim. See Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503-04 (7th Cir. 2004). If Riggs takes the direct route, he must "present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity . . . and as a result suffered the adverse employment action of which he complains." Stone, 281 F.3d at 644. If he presents such evidence and his evidence is uncontradicted, then he is entitled to summary judgment. Id. If, however, his evidence is contradicted, then the case goes to trial, unless the Defendants present [*19] unrebutted evidence that they "would have taken the adverse employment action against the plaintiff even if [they] had had no retaliatory motive. . . ." Id. If the Defendants offer such evidence, then they are entitled to summary judgment. Id. This is because the Defendants will have shown that Riggs was not harmed by retaliation. Id. If Riggs takes the indirect route, then he must "show that after [engaging in protected activity] only he, and not any similarly situated employee who did not [engage in protected activity], was subjected to an adverse employment action even though he was performing his job in a satisfactory manner." Id. If the Defendants produce

no evidence in response, then Riggs is entitled to summary judgment. Id. If the Defendants present "unrebutted evidence of a noninvidious reason for the adverse action, [they are] entitled to summary judgment." Id. If the Defendants' evidence of their reason for discharging Riggs is rebutted, then the case must go to trial. Id. Neither side seems to appreciate the impact of Stone and its progeny. Nevertheless, Riggs appears to be taking the direct route. n6 Cases following Stone indicate [*20] that under the direct route/direct method, there are two types of permissible evidence: direct and circumstantial. See Mannie v. Potter, 394 F.3d 977, 983 (7th Cir. 2005); Buie, 366 F.3d at 503. Direct evidence "'essentially requires an admission by the decision-maker that his actions were based upon the prohibited animus.'" Mannie, 394 F.3d at 983 (citation omitted). Circumstantial evidence is "evidence that allows a jury to infer intentional discrimination by the decision-maker.'" Buie, 366 F.3d at 503 (citation omitted).

n6 With respect to the indirect method, Riggs has failed to offer any evidence that after taking FMLA leave only he, and not any similarly situated employee who did not take FMLA leave, was discharged even though he was performing his job satisfactorily. In this case, Riggs relies solely on alleged circumstantial evidence of retaliatory discharge by arguing that the temporal proximity between his medical leave and termination, [*21] as well as the reasons given for his termination, demonstrate that he suffered adverse employment action because he engaged in protected activity. The court agrees. Although the Stone court emphasized that "mere temporal proximity between the [protected activity] and the action alleged to have been taken in retaliation for that [activity] will rarely be sufficient in and of itself to create a triable issue," 281 F.3d at 644, there is more at play in this case than just suspicious timing. As described in Section II.B.i of this entry, there are troubling issues surrounding the Defendants' claim that Riggs was terminated for insubordination. Given that Riggs disputes the existence of Shearer's statement to him regarding the duct tape and the ability of Shearer even to direct his actions, as well as the suspicious manner in which Shearer's role in the duct tape seemed increased in importance in the minds of the Defendants only as Riggs was about to return to work, the court finds that a reasonable jury could conclude that Riggs was fired because he took medical leave. Therefore, summary judgment must be denied to the Defendants with respect to Riggs' claim of FMLA [*22] retaliation.

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III. CONCLUSION For the foregoing reasons, the motion for summary judgment filed by all Defendants (Docket No. 27) is DENIED.

ALL OF WHICH IS ENTERED this 20th day of April 2005. John Daniel Tinder, Judge United States District Court