United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
Darla Strauthers brings this diversity action against her
former employer, defendant The Kellogg Sales Company, d/b/a
Kellogg's Snacks. Initially, plaintiff brought five
claims: (1) Count I: Workers Compensation Retaliation; (2)
Count II: Age Discrimination under the Kansas Age
Discrimination in Employment Act (KADEA); (3) Count III:
Disability Discrimination under the Kansas Act Against
Discrimination (KAAD); (4) Count IV: Retaliation; and (5)
Count V: Breach of Contract. After defendant moved for
summary judgment on all counts (Doc. 48), plaintiff
voluntarily abandoned Counts I and V. Plaintiff also
implicitly seems to agree that all claims other than those
for her termination are barred. Defendant argued that
plaintiff did not properly exhaust any claims for earlier
actions, and plaintiff's reply brief only addressed her
termination. For the following reasons, the court grants
defendant's motion as to the remainder of plaintiff's
judgment is appropriate if the moving party demonstrates that
there is “no genuine issue as to any material
fact” and that it is “entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). In applying this
standard, the court views the evidence and all reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
does not controvert any of defendant's proposed statement
of material facts. The court adopts all of the facts set
forth by defendant, and recounts those relevant to the
court's decision below.
Defendant's Policies and Practices
owns and operates the food manufacturing facility known as
the “Kansas City bakery.” The Kansas City bakery
has the following departments: Mix/Bake, Shipping, Shop,
Sanitation, Warehouse, and Packaging. The Bakery &
Confectionery Workers, Local 184-L (“the Union”)
represents hourly production workers at the Kansas City
bakery. The collective bargaining agreement
(“CBA”) between defendant and the Union governs
the terms and conditions of hourly employment at the Kansas
City bakery, including employee seniority.
in a particular department, employees must have the required
qualifications and successfully bid into a job in that
department. Employee seniority is determined by department.
Within a department, higher-seniority employees can displace
lower-seniority employees from their positions. But an
employee may not be displaced by an employee with no
department seniority-even if that employee requests the job
as a disability accommodation.
the CBA, defendant may implement and enforce rules governing
employee conduct, including attendance. Defendant uses an
Absence Control Program. Under this program, employees who
are not on attendance probation are given 80 units. Defendant
subtracts units for unexcused absences, tardiness, and early
leaves-but not for medical leave. Defendant adds back in
units for good attendance. The Program provides that
defendant may terminate the employment of an employee whose
attendance units are reduced to zero.
also has a Family Medical Leave Act (“FMLA”)
policy, which is administered by CIGNA. Eligible employees
are entitled to up to twelve weeks of unpaid, job-protected
leave. An employee may use FMLA leave if she is eligible, has
a doctor's certification, and has available FMLA days.
Defendant does not subtract attendance units for FMLA-covered
Plaintiff's Background Information
was born in 1962. At all relevant times, plaintiff was a
Union member and a bargaining unit employee. Plaintiff
understood the CBA's grievance process and has previously
suffered a work-related injury in 2009. Beginning in July
2010, plaintiff sought workers' compensation benefits and
treatment. By June 2012, plaintiff had reached maximum
medical improvement and received a final award of
workers' compensation benefits.
Defendant's Accommodation of Plaintiff's Work
9, 2011, Dr. Peter Bieri evaluated plaintiff for the
permanent impairment caused by her 2009 injury. Dr. Bieri
issued permanent work restrictions: occasional lifting of 40
pounds, frequent lifting of 20 pounds, constant lifting of 10
pounds, and limited bending and twisting. These restrictions
remained in place for the duration of plaintiff's
July 2011 and June 2013, members of Human Resources
corresponded with plaintiff on numerous occasions about the
jobs that plaintiff could perform with her restrictions.
Plaintiff wanted to work in the Mix/Bake department (and
started there), but she was displaced in August 2011 by a
higher-seniority employee in the Mix/Bake department.
Plaintiff was then advised that her work restrictions could
be accommodated on the “207 project” job, which
was in the Packaging department. Over the next two years,
plaintiff repeatedly indicated that she wanted to work in the
Mix/Bake department instead. Human Resources reiterated that
the 207 project job was within plaintiff's restrictions,
and that plaintiff was expected to perform that job. Human
Resources eventually identified a number of other jobs that
plaintiff could perform, but that list did not include the
job that plaintiff wanted. As late as July 2013, plaintiff
voiced her disagreement with the omission of a particular job
in the Mix/Bake department from the list of jobs she could
perform. But ultimately, plaintiff continued to work in
different positions in the Packaging department (where she
had seniority) until her termination.
is familiar with defendant's Absence Control Program and
understands defendant's call-in requirements. Employees
who will be absent are expected to call the bakery at least
thirty minutes before their shift begins. If the time
qualifies as FMLA leave, the employee also must call CIGNA
within forty-eight hours of her absence (not twenty-four
hours, as plaintiff believed), or the absence will not be
excused as FMLA leave.
times, plaintiff was denied FMLA leave protection because she
called CIGNA too late. On March 7, 2013, CIGNA notified
plaintiff that her February 28 and March 1, 2013 absences
were not approved as FMLA leave because she did not timely
report those absences to CIGNA. On October 22, 2013,
plaintiff was placed on probation under the Attendance
Control Program because her attendance units were at -163.
Plaintiff was advised to improve her attendance and warned
that her employment would be terminated if she did not do so.
On December 17, 2013, plaintiff was again counseled for
absenteeism. After she was placed on probation in October,
plaintiff accumulated four additional unexcused absences,
received several tardies, and was cited for falsifying her
time card. Defendant's Human Resources Manager, Zach
Hagan, warned plaintiff that if she accrued any further
absences or tardies before she improved her attendance to
zero attendance units, her employment would be terminated. If
she exhausted all of her available FMLA time, or if she did
not submit a doctor's certification to CIGNA in support
of FMLA, plaintiff's absences were not protected and
would be subject to the Absence Control Program.
could monitor her balance of available FMLA days by calling
CIGNA or accessing the CIGNA website. She claims that she
called “constantly” for that information, and
that she was fully aware of how much FMLA leave time she had
available. Plaintiff called in absent to the bakery on March
3, 11, 17, and 18, 2014, claiming she was taking these dates
off as FMLA leave. But she did not report those absences to
CIGNA. At the time of her March 2014 absences, plaintiff was
aware that she had previously exhausted her FMLA entitlement.
CIGNA sent plaintiff three letters in February 2014,
informing her that she had exhausted all of her available
FMLA time and that absences after February 10, 2014 would not
knew she could access defendant's record of her
attendance and units at any time.
attendance records showed that plaintiff had the following
record of attendance discipline, unexcused absences, and
early out/late in violations of defendant's attendance
policy (not including vacation days, workers'
compensation leaves, ...