United States District Court, D. Kansas
For Kenneth Hardwick, Plaintiff: John F. Wilcox, Jr., Molly Brown Bartalos, Dysart, Taylor, Lay, Cotter & McMonigle, P.C., Kansas City, MO.
For Amsted Rail Company, Inc., doing business as Griffin Wheel Company, Defendant: Nicole Hininger Howell, Rene' Leigh Duckworth, Sara B. Anthony, LEAD ATTORNEYS, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - KC, Kansas City, MO.
Richard D. Rogers, United States District Judge.
MEMORANDUM AND ORDER
Plaintiff brings this action asserting claims under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and the Family Medical Leave Act, 42 U.S.C. § 2611 et seq. He contends that his former employer, Amsted Rail Company, Inc., violated his rights under the ADA and FMLA when it (1) " threatened" him with transfer to another position; and (2) terminated him from employment. Specifically, plaintiff raises five claims: (1) disability discrimination in violation of the ADA; (2) failure to accommodate in violation of the ADA; (3) retaliation in violation of the ADA; (4) interference with FMLA rights; and (5) retaliation in violation of the FMLA. This matter is presently before the court upon defendant's motion for summary judgment.
In its motion, defendant contends that it is entitled to summary judgment on all of plaintiff's claims. It argues that plaintiff cannot establish (1) a prima facie case of disability discrimination under the ADA because he provides no evidence of a discriminatory animus on the part of Amsted, nor can he rebut with evidence of pretext Amsted's legitimate, non-discriminatory reasons for the actions it took concerning plaintiff; (2) retaliation under the ADA because he provides no evidence that he engaged in activity protected by the ADA; (3) failure to accommodate under the ADA because he provides no evidence that Amsted failed to accommodate any reasonable request for accommodation he presented to it; (4) FMLA interference because he provides no evidence that Amsted prevented him from taking FMLA leave; and (5) a prima facie case of retaliation under the FMLA because he provides no evidence of a retaliatory animus on the part of Amsted, and cannot rebut with evidence of pretext Amsted's legitimate, non-retaliatory reasons for the actions it took concerning plaintiff.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and 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." Fed.R.Civ.P. 56(c). The requirement of a genuine issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256. A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of [ its] pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). The court notes that summary judgment is not a " disfavored procedural shortcut; " rather, it is an important procedure " designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P.
Most of the facts are undisputed in this case. The court will discuss the facts that are controverted as we consider the arguments of the parties.
Plaintiff worked for the defendant from approximately December 2007 through May 2011. Hardwick worked as a machinist
on the mold repair team at Amsted's Griffin Wheel facility located in Kansas City, Kansas. Amsted's Kansas City, Kansas facility is a steel foundry where steel is used to produce railroad car wheels. As a machinist, Hardwick was responsible for machining the wheel mold back to the required specifications, which requires months of training to learn. The machinist position is not a job that anyone off the street can walk in and fill.
In 2011, the last year of Hardwick's employment, only one machinist worked per shift, and the facility ran three shifts per day. In total, only 3 to 4 individuals at Amsted were able to perform Hardwick's job. Hardwick understood that it was an essential function of his position to work mandatory overtime when required by the production needs.
Amsted's Kansas City, Kansas, facility had an attendance policy, which provided that once an employee received a total of 12 points, the employee was subject to termination under the attendance policy. Hardwick received, reviewed, and understood Amsted's attendance policy. Employees do not receive attendance points for FMLA-related absences.
On September 9, 2009, Hardwick obtained a doctor's note that indicated Hardwick's planned medical treatment was a reduced hours schedule that prohibited him from working more than 40 hours per week. According to Hardwick's FMLA paperwork, his need for a reduced hours schedule was based upon his medical treatment for (or recovery from) high blood pressure. Amsted accommodated Hardwick's 40-hour restriction the entire time it was in effect.
In October 2010, employees were working a lot of mandatory overtime. In fact, machinists might work as much as 80 hours per week during periods of required overtime. Because Hardwick could not work overtime, his allotted overtime was split between two other machinists, who covered Hardwick's overtime in addition to their own required overtime, which created a hardship on those machinists.
In October 2010, Phil Brown in Amsted's Human Resources department spoke with Hardwick about whether he still needed the 40-hour restriction, which Hardwick thought was a reasonable request, considering the hardship on the other machinists. He explained to Hardwick that Amsted would accommodate his 40-hour restriction, but may ...