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Bailey v. American Phoenix, Inc.

United States District Court, D. Kansas

August 29, 2017

JOCCO D. BAILEY, Plaintiff,
v.
AMERICAN PHOENIX, INC., Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge.

         This matter comes before the court on four motions. Plaintiff Jocco D. Bailey has filed a Motion for Summary Judgment (Doc. 56), a “Motion for Adverse Inference” (Doc. 94), and a “Motion for Rule 37(b)(2)(A) Sanctions” (Doc. 95). Defendant American Phoenix Inc. has filed a Motion for Summary Judgment (Doc. 89). All parties have filed responses and replies. The court first considers and denies plaintiff's sanctions and adverse inference motions. The court next considers the parties' cross-motions for summary judgment. For reasons explained below, the court grants defendant's summary judgment motion and denies plaintiff's summary judgment motion.

         I. Plaintiff's Motions for Sanctions and Adverse Inference[1]

         Plaintiff asks the court to sanction defendant for allegedly failing to produce documents responsive to his document requests, despite the court's order to do so (Doc. 82). See Doc. 94. Plaintiff also asks for the court to sanction defendant for violating Federal Rule of Civil Procedure 37(b)(2)(A). Doc. 95. Specifically, plaintiff asserts that defendant failed to produce responsive documents for document request Nos. 48, 83, 94, 108, 109, 119, and 120. Doc. 94 at 1; Doc. 95 at 1-2. Plaintiff asserts that defendant's failure was in bad faith, and asks the court to infer that the documents would have been unfavorable to defendants and demonstrated that defendant's stated reasons for terminating him were pretext. Doc. 94 at 2, 4. Plaintiff also asks the court to require defendant to compensate plaintiff for the earnings potential he lost when he was forced to withdraw from a “30 day Manufacturing Skills Core Class” because he was busy trying to compel discovery from defendant. Doc. 95 at 2. Plaintiff asserts that the class would have guaranteed him a “4 month sentence reduction” off of his 57 month sentence. Id. Plaintiff contends that his earning potential was $18.44 per hour, 40 hours per week, and that he could have earned $11, 801.60 in those four months if his sentence had been reduced. Id.

         Rule 37(b)(2)(A) lists the sanctions a federal district court may impose if a party fails to obey a court's discovery order. And, the Tenth Circuit has explained, a party who proves that its adversary destroyed evidence in bad faith may be entitled to “an adverse inference to remedy the spoliation.” Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009).

         Plaintiff's motion also cites substantial authority for the propositions that a litigant has a duty to preserve evidence relevant to the litigation and that a court may impose sanctions for a litigant who fails to do so. Doc. 94 at 2-7. And, plaintiff asserts that defendant, in bad faith, failed to produce the requisite evidence. Doc. 94 at 2; Doc. 95 at 2. “[I]f the aggrieved party seeks an adverse inference” to remedy alleged spoliation, “it must also prove bad faith.” Turner, 563 F.3d at 1149. “Without a showing of bad faith, a district court may only impose lesser sanctions.” Id.

         Here, plaintiff asserts that defendant acted in bad faith. But he never identifies any facts that might support his many conclusory assertions. Indeed, plaintiff has not established any facts to support his assertion that defendant destroyed documents or other information. Defendant contends that if plaintiff had conferred with its counsel, as our rules require, D. Kan. Rule 37.2, it could have explained that the information plaintiff perceived to be missing was not missing. And, defendant rightly contends that no evidence suggests that defendant destroyed evidence, or even that it failed to comply with the court's order. In sum, plaintiff has not asserted a sufficient basis to award Rule 37 sanctions, or for an adverse inference. The court denies plaintiff's motions.

         The court turns to the parties' summary judgment motions.

         II. Summary Judgment Motions

         A. Facts Governing Motions for Summary Judgment

         The following facts govern this motion and are uncontroverted or, where controverted, are recited in the light most favorable the party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Stewart v. NationaLease of Kansas City, Inc., 920 F.Supp. 1188, 1202 (D. Kan. 1996) (“When both parties file cross motions for summary judgment, the court must consider each motion separately and apply controverted facts in a light most favorable to the nonmovant.”).

         Defendant operates chemical packaging plants that weigh, apportion, and package chemicals and materials for its tire manufacturing clients. Defendant is a Minnesota corporation and its principal place of business also is located in Minnesota. One of defendant's chemical packaging plants is located in Topeka, Kansas.[2] Plaintiff began working for defendant at its Topeka plant in 2014.[3] Plaintiff received an employee handbook and acknowledged that he had read it. Plaintiff worked as an Electro/Mechanical Technician from his start date until March 28, 2015. Plaintiff then held the Lead Electro/Mechanical Technician position until his termination on September 1, 2015.

         As an Electro/Mechanical Technician, one of plaintiff's responsibilities was maintaining the dust collector. The dust collector is a machine that functions like a giant vacuum cleaner. It pulls chemical dust from the air and collects it in a container located outside defendant's building. Maintenance personnel, including plaintiff, were responsible for cleaning the dust collector twice each month.

         On July 27 or 28, 2015, Pre-Weigh Manager Jeff Menard noticed that the dust collector was not working properly. Mr. Menard asked plaintiff about the dust collector, and plaintiff told him that he was wrong-it was working perfectly. Plaintiff then left for the day. But Mr. Menard was confident that the dust collector was not working properly. When Mr. Menard returned on August 4, 2015, he found that the dust collector was not working properly, so he asked mechanic Cory Lewis about the problem. Mr. Lewis told Mr. Menard that the dust collector had not been working correctly since February. Mr. Menard asked Mr. Lewis to make the repairs. Later that day, plaintiff asked Mr. Menard if defendant was going to fire him. Mr. Menard told plaintiff that he believed that plaintiff had lied to him about the dust collector, and because the collector had been broken since February, this meant that plaintiff was not performing his basic job duty.[4] According to plaintiff, it also was Mr. Lewis's responsibility to make repairs to the dust collector, and defendant did not fire Mr. Lewis.

         On August 21, 2015, defendant's office manager, Donna Younger, was assisting another employee when plaintiff began asking her about the procedure applied when an accident occurs. Ms. Younger explained that the employee should fill out an accident report and go to the emergency room for testing. Plaintiff began to talk loudly as a crowd gathered around Ms. Younger's office. Plaintiff said, “the feds are going to love this.” Plaintiff asserts that he received no warnings about this incident. But, plaintiff received warnings for disrespectful behavior in the past, such as threatening a vendor with bodily harm and calling Ms. Younger a “bitch.” Doc. 93 at 29.

         On August 23, 2015, plaintiff was on on-call status. The on-duty supervisor, Cherron Keeling, made many attempts to contact plaintiff, but did not succeed. When Mr. Keeling eventually reached plaintiff and informed him of a problem at the plant, plaintiff responded that the problem was no big deal and so he refused to report to work. Plaintiff asserts that he was not on call on August 23.

         Plant Manager John Butler asked plaintiff if he could cover for another coworker on August 28 and 29, 2015. Plaintiff replied that he could. On August 29, 2015, Mr. Butler received a call from the supervisor on duty at the Topeka plant. The supervisor reported a mechanical issue. The supervisor had called plaintiff, who was on-call covering for another coworker. Plaintiff told the supervisor to call another employee-Steven Good. Plaintiff contends that his response was proper under defendant's policies and procedures because Mr. Good was better equipped to handle that particular issue. Defendant believes that Mr. Good's phone number might be one of the numbers listed as an IT resource, but it asserts that Mr. Good is not designated as an IT employee. Defendant contends that its policy requires the maintenance employee to report to work to assess the situation and diagnose the problem. Doc. 89-5 at 4.

         Then, if the problem is one that the maintenance employee cannot resolve, the employee should contact the person with the necessary expertise. Id. And, defendant's attendance policy, which is included in its handbook that plaintiff signed, explains that failing to call in or report to work is considered a “voluntary quit” and will result in voluntary termination. Doc. 89-2 at 10.

         Near the end of August 2015, plaintiff informed defendant that he had filed a complaint with the Kansas Department of Health and Environment (“KDHE”) and the United States Occupational Safety and Health Administration (“OSHA”). On August 26, 2015, plaintiff sent Mr. Butler an email notifying him that he had spoken with KDHE and OSHA officials. It stated:

I spoke with two State of Kansas officials yesterday (potential trial witnesses: 1. KDOL Ambudsman [sic] at 2:35 p.m. (2) KDHE (6 [sic] Toxicology Lab Doctor (2:08 p/m/) and (3) OSHA area Director J. Freeman . . . all three advised me that I have the right to request through [American Phoenix, Inc.] workers compensation rights that the company set up and pay for toxicology tests to be tested for all of the chemicals that I believe I have been illegally exposed to by the company failing to provide appropriate measures when I cleaned out the dust collectors.

         Doc. 63 at 3. On August 27, 2015, plaintiff reported to defendant that he had become ill and that he believed exposure to chemicals at work may have caused the illness. Initially, plaintiff did not want to file a workers compensation claim. Mr. Butler, defendant's Plant Manager, told plaintiff that he would help him fill out the workers compensation claim and take him to the emergency room. Mr. Butler then helped plaintiff complete the necessary paperwork and schedule an appointment at Stormont-Vail WorkCare for the next day, August 28, 2015.

         On August 28, 2015, Dr. Garrett of the Stormont-Vail WorkCare Center called Mr. Butler and reported that he had requested a urine sample from plaintiff and plaintiff initially had provided the sample. But then, Dr. Garrett reported that plaintiff refused, dumped the urine sample on the floor, and left the WorkCare facility. Doc. 89-5 at 3. Defendant maintains a “Post-Injury Drug and Alcohol Testing” policy for any on the job injury. Doc. 89-2 at 5. This policy provides that defendant may fire any employee who does not comply with the policy. Id.

         Sometime in late August of 2015, plaintiff told Mr. Butler that OSHA planned to visit the Topeka plant on August 31, 2015, to investigate plaintiff's complaint. An OSHA representative visited defendant's Topeka plant that day and interviewed plaintiff. While the record is unclear whether the OSHA representative came to the plant to initiate and investigate plaintiff's complaint, the court infers that the plant visit was driven by plaintiff's OSHA complaint because that is the light most favorable to plaintiff, who opposes defendant's summary judgment motion.

         Eventually, defendant's human resources manager, Linda O'Mara, investigated plaintiff's employment history with defendant. It became apparent to Ms. O'Mara that plaintiff had displayed a pattern of inappropriate behavior and had failed to meet expectations. On September 1, 2015, defendant ...


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