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Velasquez v. Philips Electronics North America Corporation

United States District Court, D. Kansas

February 6, 2015

JESSE S. VELASQUEZ, Plaintiff,
v.
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, Defendant.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Plaintiff Jesse S. Velasquez brings this employment discrimination lawsuit against defendant Philips Electronics North America Corporation, asserting claims of: (1) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (2) national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (3) disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; and (4) retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. This matter comes before the Court on defendant's Motion for Summary Judgment (Doc. 33). For the reasons explained below, the Court grants defendant's Motion for Summary Judgment.

I. Uncontroverted Facts

The following facts have been stipulated by the parties in the Pretrial Order (Doc. 32), are uncontroverted, or, where controverted, are stated in the light most favorable to plaintiff, the party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378 (2007).

Plaintiff's Employment

Plaintiff was born in North Dakota in 1944, and has lived in the United States his entire life. Plaintiff's national origin is Mexican. Plaintiff began working for defendant in 1978. Other than occasional furloughs, defendant employed plaintiff continuously from 1978 until April 15, 2013. Plaintiff worked at defendant's Salina, Kansas facility, which manufactures linear fluorescent lamps. During the time periods relevant to this lawsuit, defendant employed plaintiff as a Mechanic II in the fixture room, which is a fixture shop for production lines and maintenance. As a Mechanic II, plaintiff's job duties included rebuilding and repairing mechanical parts and motors.

Defendant's policies allowed plaintiff two 15-minute paid rest breaks and two 30-minute unpaid lunch breaks per shift. Using the restroom is not considered break time. The time for taking breaks was flexible, depending on the company's needs and whether plaintiff was in the middle of a project. If the line was down and needed his help, plaintiff would work all day without a break. On one occasion, plaintiff's supervisor allowed him to take a forty-five minute break to talk about plaintiff's work accomplishments.

Plaintiff's Medical Condition

In 2010, plaintiff was diagnosed with kidney failure and type 2 diabetes. Plaintiff had surgery in 2010, and defendant accommodated his post-surgery hospitalization, which lasted approximately three weeks. Defendant also accommodated all of plaintiff's other absences from work for his medical condition.

Plaintiff manages his kidney failure through dialysis and medication. Defendant accommodated plaintiff's medical conditions at work in several ways. When plaintiff was diagnosed with kidney failure initially, he did his own dialysis, which took approximately thirty minutes to complete per day and required a clean location. Defendant accommodated plaintiff's self-dialysis at work by permitting him to use a private storage room in the office during one of his 30-minute meal breaks. Later, plaintiff's doctor instructed plaintiff to start doing dialysis at the hospital, and defendant permitted plaintiff to rearrange his work schedule to accommodate his dialysis schedule. This schedule change meant that plaintiff no longer could work on Fridays.

Defendant also accommodated plaintiff's kidney failure by permitting him to use a golf cart to move around the facility. After receiving his diagnosis, plaintiff suffered from fatigue and was unable to walk throughout the entire facility. Plaintiff therefore asked his supervisor to allow him to use a golf cart. The supervisor initially denied the request, saying that if he let plaintiff use a golf cart then every other employee would want to use one. Two days later, however, plaintiff's supervisor told him that he could use a golf cart anytime he wanted.

Defendant allowed plaintiff to sit down at his work station as needed, but because each station in the fixture room already contained chairs, plaintiff did not need to request this accommodation. Defendant also permitted plaintiff to take short-term disability leave at least twice.

On or about January 4, 2012, plaintiff submitted a doctor's note stating he could not operate a forklift or use a stepstool or ladder. Defendant accommodated these restrictions. On or about July 10, 2012, plaintiff submitted a doctor's note stating he could not climb ladders, walk over 15 minutes per hour, lift more than 10 pounds, or operate a forklift. Defendant accommodated these additional restrictions. Defendant made every accommodation plaintiff requested.

With the accommodations defendant provided, plaintiff was able to manage his kidney failure and diabetes effectively. Plaintiff's kidney failure and diabetes did not affect his ability to perform his duties as a Mechanic II, and no one working for defendant has ever said anything derogatory about plaintiff's kidney failure or diabetes.

Plaintiff's FMLA Leave

During his employment with defendant, plaintiff made three requests for FMLA leave. Plaintiff's discussions with defendant's management about FMLA were very positive. Plaintiff told Tom Harmon, a management employee, that his situation was bad and that he required surgeries. Defendant granted plaintiff intermittent FMLA leave from February 2011 through February 2012 for kidney failure. Defendant denied plaintiff FMLA leave in March 2012 because he had already exhausted his leave. Defendant denied plaintiff FMLA leave again in October 2012 because he did not submit a medical certification. Plaintiff does not allege that either decision to FMLA leave was inappropriate.

When plaintiff returned from FMLA leave in 2012, he began having his work recalled. Plaintiff had never experienced recalls before his leave, and plaintiff believes that a coworker, Scott Long, was sabotaging his work.

Plaintiff's Final Written Warning

On or about November 18, 2012, a supervisor asked plaintiff to readjust a coating head that failed to meet specifications. Instead of readjusting the part as the supervisor requested, plaintiff took the part to the Mastergroup (the name for the lead position between plaintiff and his supervisor). Plaintiff asked the Mastergroup to sign a red ticket indicating that the part was out of service, but the Mastergroup declined plaintiff's request. Plaintiff was issued a Final Written Warning on November 20, 2012, after management concluded that plaintiff told the Mastergroup to "just piss on it"[1] and then walked away and placed the defective coating head back in the supplies cabinet. The Final Written Warning provided that plaintiff's actions violated defendant's policies against harassment, giving false information, and absence from his assigned department without permission or logical reason. Defendant also placed plaintiff on a Performance Improvement Plan on November 20, 2012, and plaintiff understood that defendant could fire him if another incident occurred. Plaintiff complied with the Performance Improvement Plan and stopped having weekly meetings with his supervisor to discuss his compliance with the Performance Improvement Plan in February 2013.

In January and April 2013, plaintiff was involved in verbal altercations with two other coworkers. Plaintiff received his last annual evaluation on January 31, 2013. In that evaluation, plaintiff received an overall rating of "Meets Expectations." Plaintiff received his evaluation for the prior year on January 26, 2012. In that evaluation, plaintiff received an overall rating of "Exceeds Expectations" and received that same rating in three out of five performance categories.

Plaintiff's Termination

Defendant terminated plaintiff's employment on April 15, 2013, for taking excessive breaks while on a Final Written Warning. The following individuals participated in the decision to terminate plaintiff's employment: Bryan Herwig (who was 32 at the time of plaintiff's termination), John Moyer (who was 37 at the time of plaintiff's termination), Jerry Unruh (who was 63 at the time of plaintiff's termination), Chris Montgomery (who was 40 at the time of plaintiff's termination), Dan Mendicina (who was 47 at the time of plaintiff's termination), and Tom Harmon (who was 51 at the time of plaintiff's termination).

Plaintiff does not recall what breaks he took on April 11, 13-14, 2013, and admits that he may have exceeded his allotted time for breaks. But plaintiff asserts that his medical condition required frequent use of the restroom. Plaintiff admits that it was not unreasonable for defendant to conclude that he violated the break policy because he occasionally exceeded his allotted break times.

John Moyer, who supervised plaintiff, collected information about plaintiff's use of break time. When Mr. Moyer learned that plaintiff might be violating the break policy, he never asked plaintiff if he was taking excessive breaks because he thought plaintiff would not tell him the truth, even though he could never recall a time that plaintiff had lied to him. Mr. Moyer also never had any prior concerns or suspicions that plaintiff had violated the break policy. Mr. Moyer admits that an explanation could have existed for some of the documented break times that would not violate the company policy. Mr. Moyer concedes he does not know whether defendant gave plaintiff an opportunity to explain before defendant terminated his employment. After collecting the information about plaintiff's use of break time, Mr. Moyer met with his supervisor, Tom Harmon, and the head of Human Resources, Bryan Herwig, to discuss the information. In addition, legal counsel participated in that meeting by telephone. Mr. Moyer has never been involved in terminating an employee for violation of the break policy, other than plaintiff's termination.

Before September 2012, Jerry Unruh supervised plaintiff. Mr. Unruh's understanding of the break policy is that breaks are not monitored unless someone complains. In plaintiff's situation, Mr. Unruh recalls that several people complained about plaintiff's excessive use of break time, but the only person he can remember complaining is Lucas Nease. Mr. Unruh does not remember if he typically would confront an accused employee before beginning a formal investigation. Mr. Unruh recorded plaintiff's break times in connection with his termination, but he does not remember where he saw plaintiff or what he was doing during most of the times that he recorded. He does not remember specifically if plaintiff was leaving the bathroom, break room, or fixture room at the times recorded. He also agreed that restroom use is not considered break time, and if ...


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