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Flanagan v. Scriptpro, LLC

United States District Court, D. Kansas

February 28, 2019

SCRIPTPRO, LLC, Defendant.



         Plaintiff Ryan Flanagan brings this action against his former employer, Defendant ScriptPro, LLC, pursuant to the Americans with Disabilities Act as Amended (“ADAAA”), 42 U.S.C. § 12101, et seq., and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., alleging disability discrimination, failure to accommodate, retaliation, and interference with his right to FMLA leave. Defendant moves for summary judgment on all claims. Doc. 51. For the following reasons, the Court grants summary judgment in favor of Defendant on each of Plaintiff's claims.

         I. BACKGROUND[1]

         A. Plaintiff's Employment

         Defendant is engaged in the business of developing, manufacturing, marketing, and selling automated prescription drug systems and related software. Doc. 52 at 3 ¶ 1; Doc. 54 at 12 ¶ 1. Defendant employed Plaintiff from June 2014 through his termination on September 9, 2016, first as a Field Logistics Operations Analyst and then, beginning in June 2015, as a Technical Support Analyst I (“TSA I”). Doc. 50 at 2; Doc. 52 at 3 ¶ 2; Doc. 54 at 12 ¶ 2.

         As a TSA I, Defendant tasked Plaintiff with answering customer calls-many of which were emergent or urgent in nature-and resolving customer issues with Defendant's software and equipment. Doc. 52 at 4 ¶ 8; Doc. 54 at 13 ¶ 8. Defendant provides technical support (such as that performed by Plaintiff) to customers 24 hours per day, 365 days per year. Id. Employees in the customer service (“CS”) department are scheduled based on the expected call volume and business need. Doc. 52 at 5 ¶ 11; Doc. 54 at 14 ¶ 11. Plaintiff's typical schedule as TSA I required him to work Wednesday through Sunday. Doc. 52 at 4 ¶ 7; Doc. 54 at 13 ¶ 7.

         B. FMLA Paperwork

         Defendant's FMLA policy states that “[a]n employee may take a leave of absence because of a serious health condition that makes the employee unable to perform the functions of the employee's position.” Doc. 54 at 7 ¶ 9; Doc. 57 at 38-39 ¶ 9. If one of Defendant's employees wants to take FMLA leave, the process is initiated by contacting Donna Markham (Human Resources Generalist). Doc. 52 at 12 ¶ 44; Doc. 54 at 25 ¶ 44. Ms. Markham provides the employee with the applicable Healthcare Certification Provider form. Id. When an employee is eligible for FMLA leave and returns the appropriate paperwork, Ms. Markham notifies the employee that FMLA leave has been approved. Id. Ms. Markham also contacts payroll to inform the payroll manager how many FMLA hours are to be granted in Defendant's timekeeping system, Kronos. Id.

         Shortly after Plaintiff became a TSA I, he informed his manager, Preston Flint, that he suffered from Crohn's disease.[2] Doc. 52 at 13 ¶ 46; Doc. 54 at 25 ¶ 46. After Plaintiff apprised Mr. Flint of his condition, Mr. Flint-in accordance with the procedure outlined above- encouraged Plaintiff to visit with Human Resources if he decided he needed information about FMLA leave. Doc. 52 at 13 ¶ 47; Doc. 54 at 25 ¶ 47. Plaintiff subsequently met with Ms. Markham, and, on May 5, 2016, she emailed Plaintiff the FMLA paperwork and instructed him to ask his doctor to return the completed forms to her. Doc. 50 at 2.

         Plaintiff contends he faxed the required paperwork to Ms. Markham in June or July 2016, requesting intermittent FMLA leave to cover unpredictable absences related to his Crohn's disease. Doc. 54 at 7 ¶ 19. But Plaintiff does not have a fax confirmation or other documentation showing the paperwork was transmitted. Doc. 52 at 13 ¶ 52; Doc. 54 at 26 ¶ 52. Plaintiff's medical records likewise do not include any entries reflecting that: (1) Plaintiff requested his doctor complete any FMLA paperwork, (2) any FMLA paperwork was in fact completed, or (3) any FMLA paperwork was faxed or otherwise provided to Plaintiff. Doc. 52 at 14 ¶ 54; Doc. 54 at 27 ¶ 54. There is no testimony or other evidence from Plaintiff's doctor or his doctor's staff that the paperwork was sent. Nor do Defendant's records from Kronos-which show the number of hours of leave employees have been granted for various purposes-reflect any FMLA hours for Plaintiff. Doc. 52 at 14 ¶ 59; Doc. 54 at 28 ¶ 59.

         Contrary to Plaintiff's contentions, Defendant maintains it never received any FMLA paperwork from Plaintiff or his doctor. Doc. 52 at 13 ¶ 51. Ultimately, the parties agree that Plaintiff did not hear anything from Defendant indicating that an application for FMLA leave had been approved. Doc. 52 at 14 ¶ 55; Doc. 54 at 27 ¶ 55. And there is no indication in the record that Plaintiff followed up with Defendant about the alleged leave request. Plaintiff has testified that he believed his request had been approved because he did not hear otherwise. Doc. 54-3 at 1.

         C. Attendance and Other Disciplinary Issues

          Throughout the course of his employment with Defendant, Plaintiff committed several violations of Defendant's attendance policy. CS team members-such as Plaintiff-are required to follow Defendant's standard attendance policies, as well as additional guidelines outlined in Defendant's Customer Technical Support Employee Handbook (“CS Handbook”). Doc. 52 at 5 ¶ 9; Doc. 54 at 13 ¶ 9. Under the heading “Guidelines for Punctuality, ” the CS Handbook provides in part that “[i]f a CS employee is going to be late, he or she should contact his or her support leader or the support manager via telephone, and inform him or her of the situation prior to the start of the shift.” Id. When unable to meet his work schedule because of illness, a CS employee must call in at least two hours prior to the start of his shift.[3] Id. “Notification after the team member's scheduled start time is unacceptable and will not be tolerated.” Id. The CS Handbook further advises that if a CS employee is perpetually late, management will take steps to correct the problem.[4] Id.

         On February 27, 2016, Plaintiff was late to work due to personal problems and did not notify Defendant before his shift that he would be late. Doc. 52 at 7 ¶ 19; Doc. 54 at 16-17 ¶ 19. The next day, February 28, 2016, Plaintiff did not show up to work-again, due to family problems-and did not contact Defendant until an hour before the end of his shift. Doc. 52 at 7 ¶ 20; Doc. 54 at 17 ¶ 20. On March 2, 2016, Plaintiff received and signed a memorandum from Mr. Flint entitled “Missing your shift without notification, ” in which Plaintiff was reminded of Defendant's attendance policies and advised that breaking Defendant's expectations of employee conduct “could result in disciplinary action up to and including termination.” Doc. 52 at 7 ¶ 21; Doc. 54 at 17-18 ¶ 21.

         In April 2016, Plaintiff exhausted his accrued paid time off. Doc. 52 at 8 ¶ 22; Doc. 54 at 18 ¶ 22. Later that month, on April 27, 2016, Mr. Flint issued Plaintiff a verbal memorandum regarding his excessive use of unpaid time off. Doc. 52 at 8 ¶ 23; Doc. 54 at 18 ¶ 23. Specifically, Mr. Flint advised Plaintiff that, going forward, if he required time off for continued medical reasons he would need to apply for FMLA leave, as previously discussed. Id. In June 2016, Plaintiff was again disciplined-this time for downloading customer data in violation of Defendant's security policies. Doc. 52 at 8 ¶ 25; Doc. 54 at 19 ¶ 25.

         On September 2, 2016, after Plaintiff requested time off to attend a social event, Mr. Flint informed Plaintiff that he had already missed a quarter of his Saturday shifts in 2016. Doc. 52 at 9 ¶ 27; Doc. 54 at 19-20 ¶ 27. Less than a week later, on September 7, 2016, Mr. Flint learned that Plaintiff had stayed late without permission on September 2, 2016, in violation of the April 2016 verbal memorandum. Doc. 52 at 9 ¶ 28; Doc. 54 at 20 ¶ 28.

         D. Plaintiff's Termination

         On September 8, 2016, Plaintiff was scheduled to work a shift beginning at 8 a.m. Doc. 52 at 9 ¶ 29; Doc. 54 at 20 ¶ 29. Plaintiff arrived several hours late for his shift. Id. Plaintiff did not notify Defendant before his shift started that he was going to be absent or late. Id. He first advised Defendant that he would be arriving late at 11:45 a.m. Id.

         Plaintiff testified in his deposition that he was experiencing pain that morning. Doc. 52 at 9 ¶ 30; Doc. 54 at 20-21 ¶ 30. He called his insurance company when he got up and got ready for work while he was on the phone. Id. Plaintiff also called his doctor's office and left a message. Id. Although he was in pain, Plaintiff testified that he intended to go to work. Id. However, without setting an alarm, and while his phone was plugged in performing a software update, he laid down in an attempt to alleviate the pain and unexpectedly fell asleep. Id. When Plaintiff woke up several hours later, he thought he was in trouble and would “need to get into work immediately.” Id. Plaintiff emailed his team lead at this point to let her know that he would be late. Doc. 52 at 10 ¶ 31; Doc. 54 at 21 ¶ 31.

         Following this incident, Mr. Flint emailed individuals in Human Resources to discuss the situation and solicit their input regarding potential disciplinary action. Doc. 52 at 11 ¶ 40; Doc. 54 at 23-24 ¶ 40; Doc. 54-10. Mr. Flint wrote:

[Plaintiff] did not arrive at his scheduled shift time this morning without notifying any member of our team. He did arrive 4 hours after his shift was scheduled to start. He has been given a written warning for this previously on 3/2/16 as this constitutes a no call no show. He originally painted the picture that there was nothing he could have done to notify us. In the email I attached he somewhat admitted there would have been ways to contact us before showing up to work. He always brings up his illness, Crohn's Disease, and I'm not doubting the legitimacy of it, but this shouldn't prevent him notifying us of an absence. I feel this cycle will continue with him as it always has. Is this grounds to terminate or should I address it in another way?

Doc. 54 at 8 ¶ 27; Doc. 57 at 43 ¶ 27; Doc. 54-10. Ultimately, Human Resources supported Mr. Flint's decision. Doc. 52 at 11-12 ¶ 40; Doc. 54 at 23-24 ¶ 40. Defendant terminated Plaintiff's employment effective September 9, 2016. Doc. 50 at 2.

         Following his termination, on February 13, 2017, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Doc. 50 at 2; Doc. 1-1. The EEOC issued Plaintiff a notice of right to sue letter on August 3, 2017, and Plaintiff proceeded to file this action on October 9, 2017, alleging claims under the FMLA for retaliation and interference and claims under the ADAAA for failure to accommodate, disability discrimination, and retaliation. Doc. 50 at 2; Doc. 1-2; Doc. 1. Defendant now moves for summary judgment on all claims. Doc. 51.

         II. STANDARD

         Summary judgment is appropriate where the moving party demonstrates that “there is no genuine dispute as to any material fact” and it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, courts must view the facts and any reasonable inferences that might be drawn therefrom in the light most favorable to the non-moving party. Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.” Bones v. Honeywell Int l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)).

         III. ANALYSIS

         In this action, Plaintiff asserts claims for: (1) FMLA interference; (2) retaliation under the FMLA; (3) failure to accommodate under the ADAAA; (4) ADAAA retaliation; and (5) disability discrimination under the ADAAA. Doc. 50. Plaintiffs claims stem from his allegations regarding his alleged disability-Crohn's disease-and the circumstances surrounding his separation from employment. Id. In its motion for summary judgment, Defendant contends each of Plaintiff s claims fails as a matter of law. Docs. 51-52. The Court first addresses Plaintiffs claims under the FMLA.

         A. FMLA Claims

         Plaintiff asserts two alternate claims under the FMLA: (1) Defendant interfered with his right to take FMLA leave, in violation of 29 U.S.C. § 2615(a)(1); and (2) Defendant retaliated against him for taking FMLA leave, in violation of 29 U.S.C. § 2615(a)(2). Doc. 50. The Tenth Circuit recognizes that these two theories of recovery-the interference theory arising under § 2615(a)(1) and the retaliation theory arising under § 2615(a)(2)-are separate and distinct and therefore require different showings and differ with respect to the burden of proof and the timing of the adverse ...

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