United States District Court, D. Kansas
JOCCO D. BAILEY, Plaintiff,
AMERICAN PHOENIX, INC., Defendant.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
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.
Plaintiff's Motions for Sanctions and Adverse
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.
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).
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.
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
court turns to the parties' summary judgment motions.
Summary Judgment Motions
Facts Governing Motions for Summary Judgment
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.”).
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. Plaintiff began working for defendant at
its Topeka plant in 2014. 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,
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.
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. According to plaintiff, it also was Mr.
Lewis's responsibility to make repairs to the dust
collector, and defendant did not fire Mr. Lewis.
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.
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.
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.
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.
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.
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.
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.
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.
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,