United States District Court, D. Kansas
ANTHONY M. SMITH, Plaintiff,
HILLSHIRE BRANDS COMPANY, Defendant.
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
Plaintiff Anthony M. Smith, proceeding pro se, filed suit against defendant Hillshire Brands Company seeking damages for alleged violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Family and Medical Leave Act ("FMLA"). Specifically, plaintiff alleges that his employment was terminated in retaliation for filing a charge of discrimination under Title VII and for his use of leave under the FMLA. This matter is before the court on defendant's Motion for Summary Judgment (Doc. 71).
Defendant set forth a total of sixty statements of fact in support of its summary judgment motion. In his opposition briefing, plaintiff failed to comply with the applicable rules of civil procedure and the local rules of this court. However, because of plaintiff's status as a pro se litigant, the court will construe plaintiff's response more liberally than it might construe a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991) (citing Overton v. United States, 925 F.2d 1282 (10th Cir. 1990) for the proposition that liberal construal of pro se pleadings includes review of summary judgment briefs). As such, the court will deem admitted those facts to which plaintiff wholly failed to respond or otherwise controvert. Moreover, to the extent plaintiff has declared defendants' factual assertions as contested, but where he failed to specifically controvert those assertions, the court deems those facts admitted as well. D. Kan. Rule 56.1(a) ("All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.").
A. Defendant's Policies
On January 31, 2011, defendant hired plaintiff as a production technician at its Kansas City, Kansas, meat production facility. Plaintiff worked for defendant until his employment was terminated on August 29, 2013. Throughout plaintiff's employment, defendant had a policy that prohibited racial harassment or discrimination and contained a non-retaliation provision. Defendant also had a Progressive Corrective Action Policy, which involved up to five levels of corrective action: (a) Verbal Reminder/Documented Conversation; (b) Level 1 (Documented Reminder); (c) Level 2 (Written Reminder); (d) Level 3 (Decision Making Leave/Final Warning); and (e) Termination. Regarding attendance, defendant had a No-Fault Attendance Policy, which involved up to four levels of corrective action for attendance-related violations: (a) Verbal Warning; (b) Written Warning; (c) Final Written Warning/Suspension; and (d) Termination. Finally, defendant had an FMLA leave policy, which set forth the reasons why an employee may take FMLA leave. Along those lines, defendant had a Timekeeping Policy, making employees responsible for accurately recording the hours they work and providing that falsifying time records may result in disciplinary action, up to and including termination. Plaintiff acknowledged receiving defendant's policies.
B. Plaintiff's Disciplinary History
Around mid-2011, Ezra McCon was assigned Operations Supervisor and became plaintiff's immediate supervisor. In or about January 2013, Dontae Bronson replaced McCon as plaintiff's immediate supervisor. Prior to his discharge in August 2013, plaintiff received the following disciplinary actions:
1. On or about August 26, 2011, McCon issued plaintiff a "Verbal Warning" corrective action for violation of defendant's No-Fault Attendance Policy.
2. On or about March 1, 2012, McCon issued plaintiff a "Documented Conversation" corrective action for showing up at the morning huddle meeting in street shoes, without his personal protective equipment.
3. On or about March 9, 2012, Monte Metz, Department Manager, issued plaintiff a "Verbal Warning" corrective action for violation of defendant's No-Fault Attendance Policy.
4. On or about March 26, 2012, McCon issued plaintiff a "Verbal Warning" corrective action for violation of defendant's No-Fault Attendance Policy.
5. On or about April 20, 2012, McCon issued plaintiff a "Written Warning" corrective action for violation of defendant's No-Fault Attendance Policy.
6. On or about April 24, 2012, McCon issued plaintiff a "Level 1" corrective action for taking an extended break.
7. On or about April 25, 2012, Monte Metz issued plaintiff a "Level 2" corrective action for his involvement in a verbal altercation with another employee on the production floor.
8. On or about April 26, 2012, McCon issued plaintiff a "Written Warning" corrective action for violation of defendant's No-Fault Attendance Policy.
9. On or about June 29, 2012, McCon issued plaintiff a "1-day Suspension" corrective action for violation of defendant's No-Fault Attendance Policy.
10. On or about August 2, 2012, McCon and Metz issued plaintiff a "Level 3" corrective action for violating ...