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Degan v. Reser's Fine Foods, Inc.

United States District Court, D. Kansas

July 17, 2015

AMANDA N. DEGAN, Plaintiff,
v.
RESER'S FINE FOODS, INC., Defendant.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Plaintiff Amanda N. Degan brings this employment termination case against defendant Reser's Fine Foods, Inc., alleging disparate treatment, discriminatory discharge, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq. This matter comes before the Court on defendant's Motion for Summary Judgment (Doc. 30). For the reasons explained below, the Court grants defendant's motion.

I. Uncontroverted Facts

The following facts are uncontroverted or, if controverted, are stated in the light most favorable to plaintiff as the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

A. Plaintiff's Employment

Plaintiff is a United States citizen of Mexican descent. She speaks both English and Spanish fluently. Plaintiff worked for defendant as a Human Resources Assistant from December 27, 2011, until defendant terminated her employment on August 31, 2012. Because she is bilingual, defendant paid plaintiff one extra dollar per hour to assist Spanish-speaking employees with human resources matters. The job description for plaintiff's position did not require applicants to be able to speak Spanish. Instead, it specified that a person who was "English/Spanish bilingual [was] a plus." Doc. 31-6. Plaintiff signed a copy of this job description on her first day, acknowledging that defendant had discussed the requirements of the job with her.

Luis Fernandez was plaintiff's supervisor. Mr. Fernandez is Hispanic and, like plaintiff, he speaks both English and Spanish fluently. As the Human Resources Manager, Mr. Fernandez had the power to hire and fire employees under his supervision, including plaintiff. Mr. Fernandez also supervised Janis King, a Human Resources Recruiter. Plaintiff shared her office with Ms. King. Ms. King does not speak Spanish and did not have the authority to hire or fire plaintiff.

Defendant's employee handbook set out the rules, policies, and procedures governing plaintiff's employment. The handbook contained defendant's attendance and call-in policy, which provided, in part:

If you do not report as scheduled or if you leave work prior to the end of your scheduled shift, without your Supervisor's approval to do so, you may be subject to disciplinary action. Failure to report and call-in as required may be considered a voluntary resignation or a no call/no show termination.

Doc. 31-12 at 2. In addition, the attendance and call-in policy stated that "[e]xcessive tardiness and/or absenteeism may result in disciplinary action up to and including termination." Doc. 31-12 at 2. Plaintiff received a copy of the handbook, read it, and acknowledged that she understood it on her first day of work.

B. Plaintiff's Absences, Written Warnings, and Termination

While employed by defendant, plaintiff's scheduled workdays were Monday through Friday from 8:00 a.m. until 5:00 p.m. But between January 30, 2012 and April 10, 2012, plaintiff arrived at work late 11 times, left work early four times, and arrived late and left early on the same day twice. Plaintiff also failed to work her scheduled shifts on February 20, April 12, April 13, April 16, April 17, April 18, and April 19. Because of these absences, Mr. Fernandez presented plaintiff with her first written disciplinary warning on April 19. The warning listed the 24 days that plaintiff had arrived late, left early, or failed to work, and stated that those absences were excessive. It also reminded plaintiff that excessive absenteeism could lead to further disciplinary action or termination under defendant's attendance and call-in policy. Plaintiff signed the warning without inserting any statement in its "Employee Remarks" section.[1] Later, at her deposition, plaintiff testified that Mr. Fernandez excused her absences from April 12 through April 19 because she was ill. She did not retain a copy of the email from Mr. Fernandez or her doctor's note approving these absences.

After receiving her first written warning, plaintiff failed to work her scheduled shifts on August 13, August 15, August 16, August 17, and August 20. She left work early on August 14. And on August 29, plaintiff left at 10:59 a.m., six hours before her shift ended, without approval. After she left, plaintiff contacted Mr. Fernandez who told her to return that afternoon. But she did not return. Nor did she return on August 30 or August 31, according to defendant's timekeeping records. Plaintiff disputes these records. While she does not contend that she was present on August 30, plaintiff claims that she would have requested Mr. Fernandez's approval if she was absent. She also asserts that she "showed up for" work on August 31.[2] Doc. 34 at 5.

On August 30, defendant issued a second written warning to plaintiff. Mr. Fernandez and a department manager signed the warning on September 4, 2012, noting that plaintiff was not there. Defendant described the incidents leading to the second warning as follows:

Amanda failed to work her scheduled shift on August 12, went home early on August 14, and was absent again on August 15, 16, 17, and 20. Amanda left work early on August 29 without authorization and failed to return to work as instructed after speaking with the HR Manager. These absences are excessive. In addition[, ] Amanda did not show up to work nor called in 8/30/12.

Doc. 31-9. Defendant issued a final written warning on August 31. Again, Mr. Fernandez and a department manager signed the warning on September 4, 2012.

Mr. Fernandez terminated plaintiff's employment on August 31. Mr. Fernandez has submitted an affidavit on behalf of defendant. In it, he declares that he terminated plaintiff "because of her frequent tardiness, absences, and her failure to appear ...


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