United States District Court, D. Kansas
[Copyrighted Material Omitted]
For Don Grimes, Plaintiff: Molly M. Gordonm, Randall K. Rathbun, LEAD ATTORNEYS, Depew Gillen Rathbun & McInteer, LC, Wichita, KS.
For Fox & Hounds Restaurant Group, Defendant: Amy S. Lemley, Lindsey A. Smith, LEAD ATTORNEYS, Foulston Siefkin LLP - Wichita, Wichita, KS.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.
Plaintiff brings this action asserting claims of retaliation and interference arising under the Family Medical Leave Act of 1993 (" FMLA" ), 29 U.S.C. § 2601 et seq . Plaintiff asserts claims against his prior employer, Defendant Fox & Hound Restaurant Group (" Fox & Hound" ), for alleged interference with his FMLA rights and retaliation for asserting rights under the FMLA. This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 42). Plaintiff filed a Motion for Hearing (Doc. 49), requesting a hearing on the summary judgment motion. Because the Court finds that a hearing on the summary judgment motion would not assist the Court, the motion for hearing is denied. The summary judgment motion is fully briefed and the Court is prepared to rule. As described more fully below, the Court grants Fox & Hound's motion for summary judgment.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the moving party demonstrates " that there is no genuine dispute as to any material fact" and that it is " entitled to judgment as a matter of law."  In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. " There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party."  A fact is " material" if, under the applicable substantive law, it is " essential to the proper disposition of the claim."  An issue of fact is " genuine" if " there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." 
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.
Once the movant has met the initial burden of showing the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to " set forth specific facts showing that there is a genuine issue for trial."  The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must " set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." 
Finally, summary judgment is not a " disfavored procedural shortcut" ; on the contrary, it is an important procedure " designed to secure the just, speedy and inexpensive determination of every action."  In responding to a motion for summary judgment, " a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."  When examining the underlying facts of the case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.
II. UNCONTROVERTED FACTS
The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff.
Fox & Hound is an eating and drinking establishment that caters to customers in a sports-oriented setting. Fox & Hound hired Plaintiff in 2010 to fulfill a General Manager opening at the Wichita Fox & Hound location. Plaintiff began his employment with Fox & Hound on March 10, 2010, as a General Manager in Training. After completing the General Manager in Training program, Plaintiff worked as the Managing Partner for the Wichita, Kansas, Fox & Hound location.
Plaintiff's job responsibilities as a Managing Partner included overseeing the operations of the Wichita Fox & Hound, compliance with applicable laws and policies, proper staffing and training, cost management, internal control oversight and compliance, guest satisfaction, sales growth, and ensuring compliance with cash handling policies and procedures.
Plaintiff's Job Performance
Plaintiff's immediate supervisor from October 2010 until March 20, 2012, was his District Manager, Todd Creekmur. Don Stack, Regional Vice President, oversaw operations in Plaintiff's region and was Mr. Creekmur's direct supervisor. Mr. Creekmur and Mr. Stack were primarily responsible for evaluating Plaintiff's job performance.
Some of the relevant factors in Plaintiff's job performance included self-evaluations, guest feedback, operations rankings/sales growth, attendance and staffing management, personal attitude, and cash management/internal controls.
Every twenty-eight days, General Managers complete one-on-one self-evaluations. Plaintiff's evaluations included the other managers in the store, none of whom Plaintiff had any involvement in hiring. The one-on-one self-evaluations contain a scale of one to five. One is considered unacceptable performance, three is satisfactory, and five is consistently exceptional performance. Fox & Hound encourages employees to be " green and growing" and honestly acknowledge that there is room for improvement.
Plaintiff acknowledged many performance issues in his one-on-one self-evaluations. Plaintiff frequently rated himself in his one-on-one evaluations as having unacceptable performance in multiple categories, including attitude, competitor activity, employee management, organization, costs, sales growth, staffing needs and turnover, guest satisfaction, and table visits.
In Plaintiff's one-on-one evaluation in December 2011, Creekmur made the following comments: " Your attitude has been great and your commitment is there as well." Plaintiff noted the following goal in his comments to that same evaluation: " GET TO TULSA !!"
Negative Customer Feedback
Plaintiff's performance issues included negative customer feedback at the Wichita store, poor secret shopper visits, and company-solicited feedbacks. Customer feedbacks that are submitted through corporate or through Fox & Hound's website are automatically e-mailed to a distribution list that includes appropriate District Managers and Regional Vice Presidents.
Plaintiff was aware of the negative customer feedback that the Wichita store received. Plaintiff commented on negative feedback the store received during his May 19, 2011, one-on-one self-evaluation, giving himself an unacceptable rating and stating, " we suck at shoppers."
Plaintiff continued to acknowledge the negative customer feedback resulting from complaints on other manager's shifts on his one-on-one self-evaluations, rating his performance as unacceptable or needs improvement on August 23, 2011, September 21, 2011, October 23, 2011, December 7, 2011, and December 29, 2011. Fox & Hound considered the negative feedback to be excessive and too much for the Wichita store.
The negative customer feedback complained specifically about Plaintiff on occasion. The Wichita Fox & Hound received public negative feedback during Plaintiff's employment via a customer review/blog post. The blog post called Fox & Hound " one of the worst customer service spots in Wichita hands down." The blog post described an interaction with Plaintiff, conduct that Plaintiff confirmed in an e-mail to Mr. Creekmur. After receiving poor service and asking Plaintiff for assistance, Plaintiff sent a server to follow-up with the customer. The blog post finished describing the interaction with Plaintiff by stating, " [i]t would have been nice to see the manager show face and apologize himself but he was too busy fraternizing with the female servers."
The deteriorating customer service caused a regular customer at the Wichita Fox & Hound to log an in-person complaint at the corporate office. In discussing the issues over a six-month time period at the Wichita location, Plaintiff's conduct was singled out, stating " it is evident, just by observation that the floor management and the managing partner are not on the
same page." The customer witnessed Plaintiff " literally walk over food on the floor without bending over and picking it up."
Operations Rankings/Sales Growth
Operations Rankings Reports are produced every twenty-eight days and are one measure of a store's performance during a twenty-eight day period. All Fox & Hound store locations are ranked on the Operations Ranking Report from one to eighty-four. A ranking of " 1" indicates the store with the highest sales-based performance during that twenty-eight day period. There are numerous external circumstances that can lead a store to be ranked higher or lower on the Operations Ranking Report. The sales-based data is driven by many external factors including sporting events, special events or off-site events. External, uncontrollable factors may lead to increased sales one period, but may not result in customers returning.
A store's General Manager receives the Manager of the Period Award when the store has the highest operations ranking during the period as compared to the other stores in its specific district. There is no discretion involved in the Manager of the Period Award.
During Plaintiff's two year tenure at the Wichita store, Plaintiff's relevant district (those stores supervised by Mr. Creekmur) included five other stores. Plaintiff received the General Manager of the Period Award for Mr. Creekmur's six-store district only twice during his entire employment. During October 2011, Plaintiff received General Manager of the Period Award. During November 2011, the Wichita store received an operations ranking of seven out of eighty-four and Plaintiff received the Manager of the Period Award.
During December 2011, the Wichita store's operations ranking dropped back down to forty-one out of eighty-four. During January 2012, the Wichita store's operations ranking again dropped to fifty-seven out of eighty-four.
Attendance and Staffing
Plaintiff and Mr. Creekmur discussed his lack of store presence on his April 9, 2011, self-evaluation. Mr. Creekmur revised the rating on table visits to a rating of " 1" --unacceptable performance and specifically noted " 3 of last 4 missed." The rating was changed due to the fact that the shoppers had not shown a table visit from a manager during the visit. These were not Plaintiff's shifts--he was rating the store, not Plaintiff personally.
On April 24, 2011, Plaintiff rated himself a " 1", as not having acceptable performance on employee management staffing needs/turnover and table visits. Plaintiff gave the 1 rating due to the fact that the store was short-handed on managers and the rate of 1 means needs immediate improvement. The store was staffed with hourly employees and Plaintiff was trying to let Mr. Creekmur know that the store needed managers.
On August 23, 2011, Plaintiff rated himself as unacceptable or needing improvement on employee management staffing needs/turnover, in store management, and table visits, specifically noting, " I suck at table visits." The comment " I suck at table visits" was in jest due to the fact that Plaintiff had talked to the table, which was a " shoppers table" and identified Plaintiff as the host and that he had come by their table to check on them, but they did not check that a manager visited the table even though Plaintiff had visited with them.
September 17, 2011, Mr. Creekmur sent an e-mail to Plaintiff advising him that he needed to work more nights as he had only worked one night for the entire month. Plaintiff worked all scheduled shifts and gave all managers the days off they required.
Due to short staffing on managers this was the only schedule that worked for the managers' other needs that period. On September 21, 2011, December 7, 2011, and December 29, 2011, Plaintiff again rated himself a " 1" on employee management staffing needs/turnover. Manager staffing was not a store level decision.
Personal Attitude & Behavior
Plaintiff's negative attitude created concerns regarding his job performance. On April 9, 2011, Plaintiff rated himself as needing improvement under the attitude category of his self-evaluation. Mr. Creekmur commented that Mr. Grimes needed to " be committed to being a top contributor in the group." Plaintiff was going though a difficult time as his wife and step-daughter had moved to Tulsa to take care of Plaintiff's father-in-law, who was dying of terminal cancer. His wife's father was diagnosed with terminal cancer in January 2011. The Grimes family made the decision in February, 2011 that she would go to Tulsa to take care of him. This affected ...