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Carter v. Spirit AeroSystems, Inc.

United States District Court, D. Kansas

August 8, 2019

MARK ANTHONY CARTER Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC., Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         Plaintiff Mark Anthony Carter is a former employee of Defendant Spirit AeroSystems, Inc. (“Spirit”). Carter, proceeding pro se, alleges that Spirit discriminated against him in violation of the Americans with Disabilities Act (“ADA”) and interfered with his rights under the Family Medical Leave Act (“FMLA”). Carter also alleges that Spirit retaliated against him for filing a charge with the Equal Employment Opportunity Commission (“EEOC”), filing a workers' compensation claim, and taking FMLA leave. This matter comes before the Court on the parties' respective motions for summary judgment, as well as Carter's motion for the Court to reconsider an order denying his request to file a surreply. For the following reasons, the Court grants Spirit's Motion for Summary Judgment (Doc. 149) and denies Carter's Cross-Motion for Summary Judgment (Doc. 166) and Motion for Reconsideration (Doc. 165).

         I. Factual and Procedural Background

         A. Local Rules for Summary Judgment

         In addition to the Federal Rules of Civil Procedure, the District of Kansas Local Rules set forth specific requirements for summary judgment motions. Under D. Kan. Rule 56.1, a memorandum in support of a motion for summary judgment “must begin with a section that contains a concise statement of material facts as to which the movant contends no genuine issue exists.”[1] Furthermore, “[a]ll material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.”[2] The rule further states that:

A memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and if applicable, state the number of movant's fact that is disputed.[3]

         Carter is proceeding pro se, and the Court must afford him some leniency in his filings.[4]A pro se litigant, however, is still expected to “follow the same rules of procedure that govern other litigants.”[5] Here, Spirit's statement of facts contained 69 paragraphs of facts with citations to the record. Carter's Response opposing summary judgment states that 32 of Spirit's paragraphs are uncontroverted, and Carter attempts to controvert the remaining 37 paragraphs. Carter's Response, however, fails to controvert Spirit's facts with specific citations to the record.[6]Similarly, Carter's Cross-Motion for Summary Judgment not only omits citations to the record, it provides no statement of facts at all for the Court's consideration. The Court will not scour the record on Carter's behalf to seek evidence contradicting Spirit's statement of facts.[7] Instead, the Court holds that Carter has failed to adequately controvert any of Spirit's facts, and Spirit's facts are deemed admitted for purposes of summary judgment.

         B. Facts

         Spirit designs and builds parts and components for commercial aircraft. In 2011, Spirit hired Carter as an Assembly Mechanic-Underwing in its Wichita, Kansas facility to work on the strut assemblies on the Boeing 777 line. When he was first hired, Carter worked in the second shift position, but Carter eventually moved to the first shift position, which begins its shift at 6:30 a.m.

         Carter suffers from intense migraines. Carter describes his migraines as being debilitating to the point where he “cannot physically do anything.” Instead, Carter's migraines leave him “laying in bed screaming for hours” or even “the whole day.” From 2012 until he was fired in 2015, Carter applied and was approved for several intermittent or continuous FMLA leaves of absence; Carter took some of the leaves of absence to care for his sick wife and others were to address his own health conditions.[8]

         Spirit's General Leave of Absence policy, OP3-177, informs employees of the procedure they must follow to request and report leave under the FMLA. To have leave approved under the FMLA, the employee must notify Spirit's Benefits Center within three days of the absence. OP3-177 also states that “Employees must report absences and/or late arrivals in accordance with Spirit's OP3-178 Attendance and Punctuality procedure” and that “[n]othing in this procedure is intended to relieve an employee's responsibility to notify management or the Absence Reporting Line . . . of unscheduled absences and/or late arrivals in accordance with OP3-178.”

         Spirit's Attendance and Punctuality procedure, OP3-178, states:

In the event an unexpected circumstance arises that will cause the employee to be late for work or absent, the employee must notify his/her manager within the first thirty (30) minutes of their shift. Failure to follow these requirements may result in disciplinary action, up to and including termination.

         OP3-178 states that its guidelines “apply to all Spirit AeroSystems employees at the Wichita, Kinston, Tulsa, and McAlester sites.” Additionally, it states that all “[a]ttendance guidelines affecting employees represented by a collective bargaining unit will be administered in accordance with the terms of the collective bargaining agreement.” Carter is represented by a collective bargaining unit, International Association of Machinists and Aerospace Workers, AFL-CIO (“IAM”). The collective bargaining agreement between Spirit and IAM does not contain a section regarding employees' obligations to timely report to managers any unforeseen absences or tardiness. Section 11.4(C)(1) of the CBA does address how employees may use sick leave, stating:

Between eligibility dates, an employee, including an employee on a leave of absence, may, at his option, use any part or all of his Sick Leave Credit as sick leave providing: (A) the employee is partially or wholly incapacitated by actual illness or injury on the days taken as sick leave, (B) an illness in the employee's immediate family requires the employee's presence or (C) the employee has a medical or dental appointment which can be scheduled only during working hours. The employee shall be paid for absence charged to sick leave and shall not be penalized for such absence providing the nature of the absence and anticipated length of absence is reported to his organization on the first day of such absence, or as soon thereafter as reasonably possible. As to possible rights after exhaustion of Sick Leave Credit, see Section 11.4(B.5).

         Jeffry Black, who worked in Spirit's Labor Relations division in 2014-2015, states in a sworn declaration that Section 11.4(C) “applies only to situations where the employee opts to use sick leave and wants to be paid for the absence.” Black states that “[t]he ‘notice of sick leave' provision in Section 11.4(C) is entirely separate and distinct from the manager notification procedure outlined in [OP3-178].” Additionally, Black states that in May 2015, Spirit and IAM entered into a Memorandum of Understanding (“MOA”) confirming that Section 11.4(C)(1) “was intended to cover use of sick leave credit, and that employees were still subject to discipline for failing to follow the manager notification procedure, even if they covered an absence with sick leave credit.”

         Under Spirit's Disciplinary Guidelines, OP3-179, an employee who violates Spirit's manager-notification policy is typically given a documented verbal warning; thereafter, the employee can receive a written warning, suspension, or termination for subsequent violations. Spirit has a separate disciplinary process for employees who engage in “personal misconduct”- for example, violating the manager-notification policy-and employees who violate Spirit's attendance policy with excessive absences. An employee who violates Spirit's “personal misconduct” policies receives a Disciplinary Action Form outlining the area of concern and the level of discipline. In contrast, an employee who is excessively absent receives an Attendance Disciplinary Memo.

         Spirit provides sworn declarations from three Spirit employees addressing the importance of Spirit's manager-notification policy. Laura Breese, a Human Resources manager, stated that “[t]he manager notification procedure ensures that first-level managers know at the beginning of the work day who will and will not be present for work.” Lauri Myers, a second-level supervisor, and Dustin Valentine, a first-level supervisor, both stated that for Spirit to meet its production deadlines, it is critical for managers to know which employees will be present on any given day. Additionally, from 2014-2015, Spirit issued over 240 disciplinary actions to nearly 200 different employees for failure to follow the manager-notification procedure. Twenty of these employees were on approved FMLA leave on at least one of the dates on their discipline form.

         On December 9, 2014, Spirit gave Carter a documented verbal warning for personal misconduct. The Disciplinary Action Form stated that Carter failed to notify his manager within 30 minutes of his shift that he would be late or absent on four separate occasions. The form stated that Carter “must adhere to all company policies, procedures, and management directives including notifying management within the first thirty minutes of [Carter's] shift if [he is] going to be late or absent.” The form then stated that “[f]uture incidents of this nature may result in further disciplinary action up to and including termination.” Three of the four days Carter was absent, he was on approved intermittent FMLA leave to care for his wife and for his own non-work injury to his hand. Carter never received an Attendance Disciplinary Memo for the absences themselves; rather, he was disciplined solely for his failure to timely notify his managers that he would miss work.

         On January 19, 2015, Carter received a written warning for failing to timely notify his manager within 30 minutes of his shift that he would be absent on two dates in December. Then, on February 9, 2015, Carter received another Disciplinary Action Form for failing to timely notify his manager that he would be absent three times in January 2015. Carter received a three-day unpaid suspension for these violations. Once again, the form explained that Carter needed to comply with the manager-notification policy and that future violations would lead to additional discipline, including possible termination. Carter was on approved intermittent FMLA leave for his migraines on each of the five days he was absent. As before, Carter did not receive any discipline for the absences themselves; his discipline was for not timely notifying his manager that he would be absent.

         On February 13, 2015, Carter met with Laura Breese-who at the time was a Human Resources Generalist supporting Spirit's Wichita facility-and representatives from Carter's union, IAM. At this meeting, Carter expressed concern about the wording in Spirit's Attendance and Punctuality policy (OP3-178) and Disciplinary Guidelines (OP3-179) and asserted that he did not believe he needed to comply with Spirit's manager-notification policy if his absences were approved FMLA leave. Breese and the IAM representatives reiterated to Carter that he was required to follow Spirit's manager-notification policy regardless of whether the absences were excused under the FMLA. After Carter explained that his migraines interfered with his ability to notify his managers, Breese recommended several possible accommodations that would allow Carter to comply with the policy, including having a family member call his manager on his behalf. Carter replied that these options would be generally ineffective. Breese asked Carter what accommodation would allow compliance with the manager-notification policy, and Carter was unable to identify any such accommodation.

         On February 19, 2015, Carter left work in the middle of a shift without notifying his manager. Because Carter had received progressive discipline for personal misconduct, Carter's mid-shift departure would have been grounds for Spirit terminating his employment. Spirit, however, agreed not to discipline Carter for this incident.

         In April 2015, Carter provided Spirit with a note from his doctor stating that Carter's migraines interfered with his ability to attend work and comply with the manager-notification policy. In response to this note, Breese and another representative from Spirit's Human Resources Department held another meeting with Carter. Breese and the HR representative informed Carter that he was still not exempt from Spirit's manager-notification policy, and they recommended three possible accommodations. Breese first suggested that Carter have a family member act as a proxy and contact Carter's manager on his behalf; Carter explained that this plan would not be a reliable option based on his current family circumstances. Breese also suggested that Carter type out a text message to his manager on his cell phone the night before a shift and lower the brightness on his phone; then, if Carter had a migraine the following morning, he could notify his manager by simply opening his phone and pressing send. Carter stated he was unable to look at his phone during a migraine episode for any amount of time even with the brightness on his cell phone turned down. Finally, Breese suggested that he alert his manager the night before a shift if he thought a migraine might be forthcoming. Carter replied that his migraines came quickly without warning symptoms, so this would not be an effective solution. At the end of this meeting, Breese asked Carter to provide a recommended accommodation, and Carter could provide none.

         On June 11, 2015, Carter received additional discipline for failing to timely notify his manager on two occasions that he would be late or absent. Rather than firing Carter, Spirit gave him a second three-day suspension. Carter was informed, however, that his employment would be terminated if he received any additional discipline in the next 12 months. On June 22, Carter once again failed to comply with the manager-notification procedure. On July 21, Spirit fired Carter.

         Before bringing this suit, Carter filed two charges of discrimination against Spirit with the EEOC. Carter's first charge was filed in October 2014, while he was still employed by Spirit. In his first charge, Carter alleged that Spirit discriminated against him due to his race by giving preferential treatment to Asian employees. Carter also stated that after he complained about this unfair treatment to his union, Spirit started harassing him about unrelated matters, including Carter taking FMLA leave and filing a workers' compensation claim. On May 6, 2015, the EEOC dismissed Carter's charge and issued him a right-to-sue letter. Even though the EEOC's letter explained that Carter had 90 days to file suit, Carter waited over a year before filing this lawsuit. Accordingly, this Court granted Spirit's motion to dismiss all claims relating to Carter's 2014 EEOC charge.[9] Carter filed his second EEOC charge on March 30, 2016. In his second EEOC charge, Carter stated that he was disciplined, suspended, and discharged because of his disability in violation of the ADA and in retaliation for filing his 2014 EEOC charge. The only two instances discussed in Carter's 2016 EEOC charge are his second suspension on June 11, 2015, and his termination on July 21, 2015.

         Carter filed this lawsuit on September 9, 2016. In addition to seeking damages against Spirit, Carter filed suit against his union (IAM), Spirit's legal counsel (Foulston Siefkin LLP), and the United States Department of Labor. IAM, Foulston Siefkin, and the Department of Labor have since been dismissed from this case. On February 1, 2019, Spirit filed a Motion for Summary Judgment on Carter's remaining claims. After Spirit's motion was fully briefed, Carter filed a motion for leave to file a surreply and requested that the Court allow him to present his surreply to the Court verbally instead of in writing. The Court denied Carter's motion. Carter filed a motion asking the Court to reconsider its order. Finally, Carter filed a Cross-Motion for Summary Judgment. The Court has reviewed the record and the parties' pleadings and now rules as follows.

         II. Legal Standard

         A. Summary Judgment

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[10] A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.[11] The movant bears the initial burden of proof, and must show the lack of evidence on an essential element of the claim.[12] The nonmovant must then bring forth specific facts showing a genuine issue for trial.[13]These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment.[14] The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[15]

         B. Motion for Reconsideration

         Under this district's local rules, a party may move the Court to reconsider a non-dispositive order based on: “(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.”[16] “A motion to reconsider is available when the court has misapprehended the facts, a party's position, or the controlling law, but it is not appropriate to revisit issues already addressed or to advance arguments that could have been raised in prior briefing.”[17] “The decision whether to grant a motion to reconsider is committed to the district court's discretion.”[18]

         III. Analysis

         A. Spirit's Motion for Summary Judgment

         Spirit and Carter have each filed a motion for summary judgment. The Court elects to analyze Spirit's motion first. Spirit is seeking summary judgment on Carter's claims for ADA discrimination, FMLA interference, and ADA, FMLA, and workers' compensation retaliation.

         1. ADA discrimination

         Carter has two surviving ADA discrimination claims against Spirit: one arises from his second suspension on June 11, 2015, and the other arises from his termination on July 21, 2015.[19]To evaluate ADA claims that lack direct evidence of discrimination, the Court uses the familiar McDonnell Douglas burden-shifting framework.[20] Under this framework, the plaintiff is first required to establish a prima facie case of discrimination by showing: (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) that he was discriminated against because of his disability.[21] If the plaintiff makes this prima facie showing, the burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for its adverse employment decision.[22] Once the employer provides a satisfactory nondiscriminatory reason, the burden then shifts back to the employee to demonstrate that the employer's proffered reason is a pretext for discrimination.[23]

         For the purposes of summary judgment, Spirit does not dispute that Carter is a disabled person under the ADA. Spirit argues, however, that Carter cannot demonstrate the second or third elements of a prima facie case. Under the second element, Carter must show that he was qualified, with or without reasonable accommodation, to perform the essential functions of his job. Spirit argues that regular and routine attendance-as well as the ability to timely notify his manager that he will be absent or late-are essential functions of Carter's job that he was unable to perform.

         It is Carter's burden to show that he can perform the essential functions of his job.[24] It is uncontroverted that Carter's migraines interfered with his ability to attend work and to arrive at his job on time. It is also uncontroverted that Carter's migraines would manifest unpredictably and left Carter in so much pain that he was unable to make a phone call to inform his manager that he would be absent or late that day. Thus, the relevant issue is whether regular and routine attendance and the ability to follow Spirit's manager-notification policy are essential functions of Carter's job.

         To be essential, a function must “bear more than a marginal relationship to the job at issue.”[25] Rather, essential functions are “the fundamental job duties of the employment position.”[26] The employer's judgment as to what functions are essential is given great weight.[27] The ADA does not require the Court to “second guess the employer's judgment when its description of those duties is job-related, uniformly enforced, and consistent with business necessity.”[28] Neither does the ADA require an employer to lower company standards to accommodate a disabled employee.[29]

         Spirit takes the position that regular and routine attendance at work is an essential function for all members of its production team, including the Assembly Mechanic-Underwing position that Carter held, and the Court gives considerable weight to Spirit's business judgment. Additionally, the Tenth Circuit has recognized that “physical attendance in the workplace is itself an essential function of most jobs.”[30] Indeed, it hardly seems controversial that a job's essential functions would include consistently showing up to work, something Carter's migraines prevented him from doing. The record reflects-both in Carter's words and actions-that no accommodation from Spirit would have allowed Carter to attend work and perform his job while he was experiencing a migraine episode. The record also reflects that Carter's migraines were not isolated or infrequent events: in his final six months of employment, Carter missed approximately 20% of his scheduled work hours because of his migraine condition.[31]

         Additionally, Carter's migraines also prevented him from timely notifying his managers that he would be either late or absent from work, and it was Carter's failure to follow Spirit's manager notification policy (not his many absences themselves) that caused Spirit to repeatedly discipline and, ultimately, fire Carter. Spirit's manager-notification procedure is found in its Attendance and Punctuality policy, OP3-178, which states:

In the event an unexpected circumstance arises that will cause the employee to be late for work or absent, the employee must notify his/her manager within the first thirty (30) minutes of their shift. Failure to follow these requirements may ...

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