United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
after Plaintiff became a TSA I, he informed his manager,
Preston Flint, that he suffered from Crohn's
disease. 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.
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.
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.
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. 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
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
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.
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.
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.
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.
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.
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.
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)).
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.
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 ...