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Smith v. Millennium Rail, Inc.

United States District Court, D. Kansas

March 15, 2017

DANNY SMITH, Plaintiff,



         Plaintiff Danny Smith was a repairman/welder for Defendant Millennium Rail, Inc. But Smith had “bad hands.” Or more specifically, he suffered from carpal tunnel syndrome, which made it impossible for him to perform his job duties. After taking leave to have surgery, Smith suffered a fall at work and reinjured his hands. Hoping to keep his job, Smith sought transfer to a vacant position within the company that he believed he could perform. But Millennium Rail awarded that job to someone else, so Smith sought leave again to have his hands surgically repaired for the second time. Shortly after taking that leave, Smith received a letter from Millennium Rail giving him two choices: return to work immediately or resign his position. Frustrated and unable to work, Smith chose the latter and his employment with Millennium Rail ended. Smith now brings several claims against his former employer, alleging various violations of the Americans with Disabilities Act (“ADA”)[1] and the Family and Medical Leave Act (“FMLA”). He also brings claims under Kansas state law for workers' compensation retaliation and violations related to the Occupational Safety and Health Act (“OSHA”). Smith alleges that his supervisor, Defendant Mark Baumgardner, is also liable for the FMLA violations.[2]Millennium Rail moves for summary judgment on each of Smith's claims. For the reasons discussed below, the Court grants in part and denies in part Millennium Rail's motion.

         I. Factual and Procedural Background[3]

         Before he started working for Millennium Rail, Danny Smith developed carpal tunnel syndrome. Smith's employment with Millennium Rail began in February 2012. During Smith's employment, Millennium Rail was a member of the Watco family of companies. Smith worked as a repairman/welder, repairing railcars at Millennium Rail's facility in Neodesha, Kansas. Defendant Mark Baumgardner was the plant manager at the Neodesha facility.

         Millennium Rail monitors employee efficiency in railcar repairs by comparing the estimated time necessary to complete a repair to the actual time that was required. Smith was written up for being 38.8% efficient on a repair in January 2013. The following month, Smith took approved FMLA leave to have carpal tunnel surgery. He returned from leave to the same job with the same pay, title, and responsibilities that he had before.

         On March 26, 2013, shortly after returning from leave, Smith suffered a fall at work and reinjured his hands. A doctor treated him with ice, a wrist brace, and ibuprofen. Smith was released to return to work with “activity as tolerated with regard to use of the left hand.” Millennium Rail immediately reported the injury to its workers' compensation carrier. Smith claims that he was told by a manager that Millennium Rail did not “want any reportable injuries.” Accordingly, Smith asked his doctor to make sure that he would not miss any work for fear of losing his job. In December 2013, Smith was again written up for being 41% efficient. And in February 2014, he was written up a third time for being only 38% efficient on a project. He was suspended from work for three days in late February 2014.

         Nearly a year after returning from FMLA leave, on March 6, 2014, Smith's workers' compensation attorney sent Millennium Rail a letter seeking coverage for surgery related to the fall he suffered back in March 2013. In an internal email sent on March 10, Baumgardner wrote that Smith was “one of these guys who never make their time” and that Millennium Rail was “working towards eliminating” Smith.

         On March 14, Smith's personal doctor sent Millennium Rail a note stating that until Smith had surgery, he would be unable to use the tools essential to performing his duties. Thus, at this time it was unlikely that Smith could perform any duties of a repairman/welder. Also in March 2014, Smith and another employee, Lee Davis, applied for a switchman position with Millennium Rail. Through his employment, Smith was subject to a collective bargaining agreement. Under the collective bargaining agreement, Millennium Rail based its promotions and transfers on seniority, ability, and fitness. Millennium Rail selected Davis for the switchman position on March 20. Millennium Rail asserts that through his prior job, Davis incidentally received training for the switchman role, and therefore was the more qualified candidate.

         His application for a new position unsuccessful, Smith was stuck in a job that he was physically unable to perform. On March 24, Smith submitted FMLA paperwork in order to take leave to have surgery. Upon submitting the paperwork, Smith was told that it looked like it was filled out correctly. But Smith did not confirm that his paperwork was approved-he just turned it in to a receptionist “in good faith that it'd be handled professionally and properly.” The FMLA paperwork was accompanied by a doctor's certification, which stated the probable duration of Smith's leave was unknown. The following day, Millennium Rail had Smith evaluated by another physician-Dr. Schwerdtfeger. Dr. Schwerdtfeger notified Millennium Rail that although Smith did not release his complete medical history to her, she was unable to detect any indication of pain or weakness in his hands. She opined that Smith could return to work without any restrictions. From the record, it does not appear that a third medical opinion was ever sought.

         Smith attempted to take his leave on April 1, 2014, moving to Oklahoma to stay with his brother because he could not afford to pay for housing while he was not working. Millennium Rail's director of human resources was aware on April 1 that Smith had asked for FMLA leave. But Baumgardner testified that he had no idea why “nothing was ever done about it.” There is no evidence that Millennium Rail ever made a determination about Smith's FMLA request. Internal emails circulated at Millennium Rail regarding Smith's leave. Shortly after Smith took leave, Jamie Wilson, Millennium Rail's compliance and claims specialist, wrote:

The doctor that he went to, to get the [light] duty status was and is not the authorized treating physician. Our [doctor] has stated that he is capable of doing his job duties. Have we terminated [Smith] yet? Or what are we doing? You either need to bring him back to work or [terminate].”

         The email also addressed Smith's workers' compensation request. Wilson wrote that Millennium Rail was “disputing [Smith's workers' compensation] claim.” In another email, she stated that Millennium Rail was “fighting and [has] a good case.”

         On April 10, Millennium Rail sent Smith a letter instructing him to return to work on April 16 or he would voluntarily resign his employment. Smith did not receive the letter until April 15. Smith testified that although he did not agree with the letter, he understood that the company would consider him having voluntarily resigned his position if he did not show up to work. Specifically, he had the following to say about the letter:

I was not happy to get this letter. I felt very violated. I knew I was off on FMLA. I knew that my doctor gave me legitimate care not because I was paying her, but because it was real care. I knew that their doctor seen me for no more than 10 minutes. Told me and my attorney an entirely different story than what she told Watco and she had no rights to release me back to work on the same day or even the next day without looking the EMGs. No, I was done.

         Smith did not report to work or contact anyone at Millennium Rail on April 16. Millennium Rail's paperwork, Dated: May 2, reflected that Smith was involuntarily terminated for not working efficiently and missing too much work. Both Mark Baumgardner and Shane Collins- another management level employee-claim that this paperwork was inaccurate, and that Smith was not involuntarily terminated.

         Smith has still not been released from the restrictions placed on him in 2014, and he still has not had carpal tunnel surgery. Additionally, he suffers from severe back pain that has gotten worse over time. He has been unable to get his hands or back fixed because he lost his insurance when his employment ended. Smith has applied for other jobs, but has not been able to find work since his employment ended. When asked about his current efforts to find work, Smith testified:

Well, I've kind of given up. I haven't looked in a while. I've always got my ear open and things, but as far as running and putting in an [application], that's a waste of my time because I'm not getting nowhere. I can't - if I did hire on with someone, wouldn't be able to stay on with them very long in this condition.

         When pressed on the timeline of when he was seeking employment, Smith noted that he “gave up, ” looking for work within eight months of his unemployment benefits ending, but “still kind of” looked for employment after that.[4]

         Smith brings this action against Millennium Rail. He asserts violations of the ADA and the FMLA. He also brings two claims under Kansas common law. For damages, Smith seeks wages and benefits, liquidated damages, compensatory damages for mental anguish and distress, punitive damages, and attorneys' fees. Millennium Rail now moves for summary judgment on each of Smith's claims. Millennium Rail also seeks judgment that Smith is precluded from recovering damages for wages, benefits, and back pay.

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[5]A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidenced permits a reasonable jury to decide the issue in either party's favor.[6] The moving party bears the initial burden of proof, and must show the lack of evidence on an essential element of the claim.[7] If the moving party carries this initial burden, the non-moving party that bears the burden of persuasion at trial may not simply rest on its pleading but must instead “set forth specific facts” from which a rational trier of fact could find for the non-moving party.[8] These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment.[9] To survive summary judgment, the non-moving party's evidence must be admissible.[10] The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[11]

         III. Analysis

         A. FMLA Interference

         Millennium Rail seeks judgment on Smith's claim that it unlawfully interfered with his rights under the FMLA. As a threshold matter, Millennium Rail claims that it is entitled to judgment because Smith has not demonstrated actual damages. Alternatively, Millennium Rail argues that Smith's interference claim fails on the merits.

         1. Smith has presented sufficient evidence of actual damages because a rational juror could find that he was constructively discharged.

         “The FMLA only permits the recovery of actual monetary losses.”[12] Here, Smith alleges that he suffered actual damages in the form of lost wages as a result of his termination. But Millennium Rail claims that Smith was not terminated; rather, he voluntarily resigned.

         There are two theories under which Smith could assert that he was terminated. There is actual discharge, which occurs when an “employer uses language or engages in conduct that would logically lead a prudent person to believe his tenure has been terminated.”[13] There is also constructive discharge, which occurs when an “employer deliberately makes or allows the employee's working conditions to become so intolerable that the employee has no other choice but to quit.”[14]

         Smith seems to argue the first theory: that he was actually discharged. In doing so, Smith relies on Millennium Rail's internal paperwork, dated May 2, 2014, noting that Smith was involuntary terminated. But Millennium Rail argues that its paperwork was inaccurate, and the subsequent paperwork does not change the uncontroverted fact that Smith knew the consequences of his decision not to return to work on April 16.

         Regardless of Millennium Rail's internal paperwork, the uncontroverted evidence shows that in its April 10 letter, Millennium Rail did not use language that would lead a reasonably prudent person to believe his tenure had ended. Smith himself admitted that he knew he was effectively resigning by not contacting Millennium Rail on April 16. He was upset, and testified that he “was done.” On April 16, Smith knew he was resigning from Millennium Rail. Millennium Rail's paperwork from May does not change what happened in April. Thus, Smith did not suffer an actual discharge. “An actual discharge does not occur . . . when the employee chooses to resign rather than work under undesirable conditions.”[15]

         Because Smith did not suffer an actual discharge, the Court will consider whether there is evidence that he was constructively discharged.[16] “A constructive discharge occurs only ‘when an employer, through unlawful acts, makes working conditions so intolerable that a reasonable person in the employee's position would feel forced to resign.' ”[17] The question of whether a constructive discharge occurred is one for a jury, and can only be resolved by the Court if the evidence is susceptible to only one interpretation.[18]

         In spite of Smith's failure to argue the point, the evidence shows that Millennium Rail is not entitled to judgment as a matter of law regarding the question of whether Smith was constructively discharged. Millennium Rail chose not to award Smith the switchman position, and he testified that he was unable to work as a repairman/welder. Therefore, the evidence could suggest that he had no choice but to take leave and move in with his brother because he was unable to earn an income until he had surgery to fix his hands. Shortly after taking leave, Millennium Rail informed Smith that he had two choices: return to work or resign.

         Giving an employee the choice to resign constitutes a constructive discharge if the choice is actually involuntary.[19] In considering the voluntariness of an employee's choice to resign, the Court considers whether he (1) received some alternative to resignation, (2) understood the nature of his choice, (3) had a reasonable time in which to choose, and (4) was permitted to select the effective date of his resignation.[20] Here, Smith's only alternative was to come back to work in a job he claims he was unable to do. Although he understood the nature of his choice, he was not given a reasonable time to choose: he received a letter on April 15 telling him that he had to report back to work on April 16. And he was not permitted to select the effective date of his resignation. Given these facts, a reasonable jury could find that Smith was constructively discharged, and therefore, suffered actual damages in the form of lost wages. Because the evidence is susceptible to more than one interpretation, Millennium Rail is not entitled to judgment as a matter of law that Smith voluntarily resigned.

         2. Millennium Rail is not entitled to summary judgment on Smith's FMLA Interference claim.

         Under the FMLA, Smith was guaranteed the substantive right of up to 12 weeks of unpaid leave for serious health conditions and reinstatement to his former position or an equivalent one upon return from that leave.[21] An employer may not “interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided under [the FMLA].”[22] To prevail on his FMLA interference claim, Smith must demonstrate (a) that he was entitled to FMLA leave, (b) that some adverse action by Millennium Rail interfered with his right to take that leave, and (c) that the adverse action was related to the exercise or attempted exercise of his FMLA rights.[23] Interference is a violation of the FMLA regardless of the employer's intent.[24] Unlike some of his other claims, [25] Smith's interference claim is not subject to the McDonnell Douglas burden-shifting analysis.[26]

         (a) A reasonable jury could conclude that Smith was entitled to leave.

         Millennium Rail contends that Smith has not shown that he was entitled to FMLA leave because his paperwork was inadequate. The paperwork was inadequate, Millennium Rail contends, because it did not provide a probable duration, as required under the FMLA. “An employee's right to FMLA leave is subject to the certification requirements of 29 U.S.C. § 2613.”[27] And § 2613(a) dictates that an employer may require that a request for leave be supported by a certification issued by a health care provider. That certification must state “the probable duration of the condition.”[28] Because Smith's paperwork stated that the probable duration was unknown, Millennium Rail argues that his paperwork was insufficient.

         But Millennium Rail's argument ignores 29 C.F.R. § 825.305 and its application by various courts. By failing to specify a probable duration of his condition, Smith's certification was not inadequate, it was merely incomplete.[29] The Department of Labor explains that an employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient.”[30] The Sixth Circuit has noted that the plain language of the rule imposes on an employer an affirmative duty to inform an employee that his certification is incomplete, vague, ambiguous, or non-responsive, and give that employee a reasonable opportunity to correct any shortcomings.[31] Without analyzing the issue, the Tenth Circuit has also noted an employer's responsibility to inform an employee of an incomplete certification.[32]

         Here, there is no evidence that Millennium Rail informed Smith that his certification was incomplete. In fact, there no evidence that Millennium Rail took any action whatsoever to resolve Smith's FMLA request. The request seems to have languished until Smith's employment ended. To find that Smith was not entitled to leave because of a singular omission in his FMLA paperwork would encourage employers to wait and object to such oversights only when litigation arises. Such an outcome is undesirable and contrary to 29 C.F.R. § 825.305, which requires an employer to notify an employee of an incomplete certification. Accordingly, the Court rejects Millennium Rail's assertion that Smith was not entitled to FMLA leave because his request for leave failed to sufficiently provide a probable duration.

         Millennium Rail also argues that Smith was not entitled to leave because Dr. Schwerdtfeger determined that Smith was actually capable of working.[33] Millennium Rail contends that “the Company learned from a health care provider that Plaintiff was able to work without any restrictions, in direct contradiction to his FMLA request.” True enough. But the law provides for just such a scenario. Under the FMLA, an employer may require a second opinion concerning information included in a certification.[34] Millennium Rail apparently did so by sending Smith to see Dr. Schwerdtfeger.[35] When the second opinion differs from the certification-as Dr. Schwerdtfeger's did-the FMLA provides in relevant part:

In any case in which the second opinion . . . differs from the opinion of the original certification . . . the employer may require, at the expense of the employer, that the employee obtain the opinion of a third healthcare designated or approved jointly by the employer and the employee.[36]

         There was no third opinion in this case, but Millennium Rail argues it was not required to seek one. This is correct: the language of the statute plainly states that the employer “may” require- not that it “shall” require-a third opinion.[37] Although not required, the third opinion would have been “final and binding on the employer and the employee.”[38] Without a third opinion, the Court is left with two doctors' opinions: one saying that Smith could not work, and thus, was entitled to leave, and another opinion saying the opposite. Faced with these conflicting opinions, and in the absence of a third, binding opinion, reasonable jurors could differ as to the question of whether Smith was entitled to FMLA leave. And even if Millennium Rail truly believed Dr. Schwerdtfeger's opinion, it would still be liable for interference if Smith was in fact entitled to leave.[39]

         Because Millennium Rail failed to notify Smith that his certification lacked a probable duration, it cannot now complain that his FMLA paperwork was incomplete. Furthermore, a reasonable jury could find that Smith was in fact entitled to FMLA leave. Accordingly, Millennium Rail's argument that it is not liable for FMLA interference because Smith was not entitled to leave fails.

         (b) Smith has produced sufficient evidence of adverse employment action.

         Millennium Rail next argues that Smith cannot show that adverse action interfered with his right to take leave. Millennium Rail contends that it merely asked Smith to return to work, and he chose to resign instead. But constructive discharge would constitute adverse action, and the Court has already concluded that Millennium Rail is not entitled to judgment on that issue.

         (c) Millennium Rail's adverse action was closely related to Smith's attempt to exercise his FMLA rights.

         Smith has also produced sufficient evidence to survive summary judgment on the third element of his FMLA interference claim-that the adverse action related to the exercise of his FMLA rights. Millennium Rail admits as much: it sent Smith the letter because he had taken leave when it felt that he was actually capable of working. But even if Millennium Rail felt that Smith could work, it still improperly interfered with his right to FMLA leave if he was in fact entitled to such leave. If that is the case, then Millennium Rail's letter may have constituted adverse action taken as a direct result of Smith's attempt to exercise his FMLA rights.

         A rational juror could find that Smith (a) was entitled to leave under the FMLA, and (b) was constructively discharged (c) as a direct result of his attempt to take his FMLA leave. Accordingly, the Court denies Millennium Rail's motion for summary judgment on Smith's FMLA interference claim.

         B. ADA: Failure to Accommodate

         The ADA provides:

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.[40]

         The ADA specifically notes that discrimination includes the failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee.”[41] Smith identifies two accommodations that Millennium Rail failed to provide: leave to obtain surgery and reassignment to a vacant position.

         When considering ADA discrimination claims-including failure to accommodate-on summary judgment, the Court applies the McDonnell Douglas burden-shifting approach.[42]Smith bears the initial burden of establishing a prima facie case of discrimination.[43] If Smith makes such a showing, the burden shifts to Millennium Rail to articulate a legitimate, non-discriminatory reason for its conduct.[44] If Millennium Rail can articulate such a reason, the burden shifts back to Smith, who is tasked with showing that Millennium Rail's justification for its conduct is actually a pretext designed to mask discrimination.[45] If there remains genuine evidence supporting each element of Smith's prima facie case, and, if need be, disputing Millennium Rail's rebuttal, then summary judgment should be denied.[46]

         Smith is alleging that Millennium Rail failed to accommodate his disability in two different ways, and the elements for each of these theories are slightly different. Thus, the Court will consider them separately. 1. Failure to accommodate by offering reassignment to a vacant position.

         Smith contends that Millennium Rail could have accommodated his disability by reassigning him to the vacant switchman position. To make a prima facie case for failure to accommodate by offering reassignment to a vacant position, an employee must make a showing that:

(1) The employee is a disabled person within the meaning of the ADA and has made any resulting limitations from his or her disability known to the employer;
(2) The preferred option of accommodation within the employee's existing job cannot reasonably be accomplished;
(3) The employee requested the employer reasonably to accommodate his or her disability by reassignment to a vacant position, which the employee may identify at the outset or which the employee may request the employer identify through an interactive process, in which the employee in good faith was willing to, or did, cooperate;
(4) The employee was qualified, with or without reasonable accommodation, to perform one or more appropriate vacant jobs within the company that the employee must, at the time of the summary judgment proceeding, specifically identify and show were available within the company at or about the time the request for reassignment was made; and
(5) The employee suffered injury because the employer did not offer to reassign the employee to any appropriate vacant position.[47]

         Smith has easily established the first three elements. He maintains that his carpal tunnel syndrome was disabling, and there is no dispute that Millennium Rail was aware of his condition. While accommodation within Smith's position arguably could have been reasonably accomplished with leave to obtain surgery, the record shows that Millennium Rail was unwilling to provide such an accommodation. And Smith specifically requested reassignment to the vacant switchman position.

         As to the fourth element, Millennium Rail argues that Smith has not shown that he was qualified to perform the duties of a switchman. But there is some dispute as to what was physically required of a switchman. Millennium Rail asserts that a large part of a switchman's duties includes the use of levers-at times with both hands. Relevant to Smith's disability, Millennium Rail asserts that a switchman is required to exert up to 125 pounds of force occasionally, 100 pounds of force frequently, and 75 pounds of force regularly. Smith disagrees with Millennium Rail's characterization of a switchman's duties, calling them “Herculean.” In response, he submitted Watco job listings for switchman positions in Alabama and Louisiana. Those positions required only seldom or occasional lifting of up to 75 pounds, and frequent carrying of up to 100 pounds. The listings also called for frequent reaching, grasping, and hand control operation, as well as occasional fine finger manipulation.

         In addition to the dispute as to what was actually required of a switchman, there is also a dispute as to Smith's physical capabilities. Millennium Rail cites Smith's deposition to argue that Smith was entirely unable to work, and thus, was not qualified to work as a switchman, regardless of which physical requirements apply. But Smith's deposition does not actually support Millennium Rail's claim. Smith testified that he could have performed the duties of a switchman. He testified that he had checked with his doctor before applying for the position and that in certain circumstances, he could have pushed, pulled, or lifted up to 100 pounds. Millennium Rail's claim that “in light of Plaintiff's testimony that he cannot work, Plaintiff has obviously not identified any job at Millennium Rail that he could perform” is beyond incorrect- it is dishonest. There is a factual dispute regarding the actual requirements of the switchman position. In addition, reasonable jurors could differ as to whether Smith was physically capable of performing those requirements. Therefore, Smith has established the fourth element of his prima facie case of failure to accommodate by offering reassignment. He has also established the fifth element: the switchman position was given to someone else; leaving Smith in a position he could not perform. Ultimately, Smith moved to Oklahoma and lost his job because he was unable to work.

         The burden now shifts to Millennium Rail to articulate a legitimate, non-discriminatory reason for its conduct. “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.' ”[48] Millennium Rail claims that it simply awarded the switchman position to the more qualified candidate. Millennium Rail contends that it selected Lee Davis, and not Smith, for the switchman position because through his prior job, Davis had experience relevant to the switchman position. Smith and Davis were subject to a collective bargaining agreement that set forth criteria by which employees are selected for promotional opportunities. Employment decisions are based on seniority, ability, and fitness. Although Smith was more senior than Davis, Millennium Rail asserts that the most qualified candidate will be awarded a position, and seniority is only a factor if two applicants have the same qualifications.[49] Davis was a blaster-one who operates a hose on the inside and outside of rail cars. According to Millennium Rail, blasters “do a lot of switching” and thus, Davis already had experience relevant to the position of a switchman. Therefore, Millennium Rail argues that Davis was more qualified to be a switchman, and thus, was awarded the position instead of Smith.

         Because Millennium Rail has articulated a legitimate explanation for its conduct, the burden shifts back to Smith to present evidence of pretext. When assessing a claim of pretext, the Court examines the facts as they appear to the person making the employment decision.[50]The Court may not second guess Millennium Rail's business judgment; rather, the question is whether the reason articulated by Millennium Rail is the actual reason it sent the letter to Smith.[51] “The relevant inquiry is not whether the employer's proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.”[52] Smith may create a genuine issue of fact merely by discrediting Millennium Rail's legitimate, non-discriminatory reason; however, “the burden remains on [Smith] to show that each reason given by [Millennium Rail] is unworthy of credence.”[53] Ultimately, Smith ...

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