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Wilson v. Saint Francis Ministries, Inc.

United States District Court, D. Kansas

December 10, 2019




         Here, plaintiff Tyrolia Dejuan Wilson sues defendant Saint Francis Ministries, Inc. under the Americans with Disabilities Act (“ADA”), as amended by the ADA Amendments Act of 2008, 42 U.S.C. § 12101 et seq., and the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Plaintiff claims that defendant denied him both his ADA-given rights to work with a reasonable accommodation for his disability, within a non-hostile environment, and without retaliation, and his FMLA-given rights to take medical leave without interference or retaliation. Arguing that plaintiff cannot support those claims, defendant moves for summary judgment. Because the court agrees with defendant, but only in part, the court grants in part and denies in part Defendant's Motion For Summary Judgment (Doc. 60).

         I. Background[1]

         When plaintiff Tyrolia Dejuan Wilson applied to work as an Addictions Counselor for defendant Saint Francis Ministries, Inc., his application noted that he was an individual requiring accommodation. An earlier spine injury had permanently disabled plaintiff. Resulting spinal stenosis, myoclonic jerks, muscle spasms, and migraines, when active, severely pained his low back, neck, shoulder, and head. This impaired his ability to maintain any prolonged seated or standing posture. And at least one medical professional later opined that a flare-up of these episodic conditions may render plaintiff unable to work and thus make it medically necessary for plaintiff to be absent during the flare-up. Despite his disabled condition, plaintiff requested no accommodation at the time of his July 2016 hiring.

         When defendant offered the counselor position to plaintiff, it nonetheless afforded plaintiff certain accommodations. Unable to meet plaintiff's salary demands but able to accommodate his college schedule's demands, Debra McKenzie, then defendant's acting Director, offered to allow plaintiff to work a 32-hour-week schedule for 40-hour-week pay and benefits. Plaintiff accepted, marking July 2016 as his employment's beginning and $17.31 per hour as his salary's pay rate.

         Over the next several months at work, plaintiff's condition started causing him more problems. Migraines occurred more frequently. At one point, plaintiff was taken by ambulance to the emergency room. These difficulties notwithstanding, by November 27, 2016, plaintiff earned a raise. Defendant raised plaintiff's salary from $17.31 to $17.84 per hour. Plaintiff complained, however, that this $0.47 per hour raise ignored the “12 years work experience” he had accumulated before defendant hired him. (Doc. 61-2, at 19.) Plaintiff therefore claimed defendant should have raised his pay rate to $21.53 per hour. Despite his requests, plaintiff never received his claimed pay rate.

         The subject of plaintiff's work schedule came up again by December 2016 or January 2017. While discussing certain paid-time-off procedures with plaintiff, McKenzie mentioned that defendant may start requiring plaintiff to work 40-hour weeks. To address plaintiff's disability-based concerns with that possibility, McKenzie scheduled a meeting with plaintiff; herself; and Shannell Carroll-Douglas, one of defendant's Human Resources representatives. At that meeting, defendant asked plaintiff to work six, 6-hour days for a total 36-hour work week. Plaintiff refused. He explained that he felt unable to commit to the proposed schedule's requirement that he work Saturdays, as that would leave him working alone and without the backup he might need should his disability cause him difficulty. In response, plaintiff was told to provide medical records. Plaintiff supplied records describing his diagnosis and its impact on his ability to work a rigid schedule. For example, a March 20, 2017 “Return to Work/School” note from plaintiff's physician remarks on plaintiff's need for “light duty” work that allows for frequent postural breaks.

         Three days following that note, on March 23, 2017, another meeting occurred between plaintiff; Carroll-Douglas; and Garnetta King, the Lead Counselor (and, following a later promotion, Program Coordinator) responsible for supervising plaintiff. At that meeting, King presented plaintiff with a Performance Improvement Plan (“PIP”). As an area of concern in plaintiff's work performance, the PIP identified plaintiff's attendance. Specifically, the PIP criticized plaintiff for “[n]ot [m]eeting the required 40 hours/week.” (Doc. 61-3, at 2.) The PIP outlined defendant's expectation that, within 30 days, plaintiff demonstrate improved attendance. By the PIP's terms, this required plaintiff to: “[m]eet[] 40 hrs/week, ” “communicate schedule w/ supervisor, ” “[g]ive doctor notes for anytime missed, ” “use outlook calendar, ” and submit to King's “[w]eekly supervision.” (Id.) Plaintiff agreed to the PIP's terms, marking the first and only time he agreed to work a presented fulltime schedule.

         Immediately after the PIP meeting's end, plaintiff confided directly to Carroll-Douglas that the PIP's terms and King's supervision worried him. Plaintiff recalls receiving no verbal warnings, write-ups, or other expressed concerns about his performance prior to this PIP. Plaintiff conveyed this to Carroll-Douglas and questioned the fairness of criticizing him for working the part-time hours McKenzie offered him at hiring. The PIP's supervision arrangement only added to plaintiff's unease. To Carroll-Douglas, plaintiff reported his feelings that, since his employment's beginning, King had been harassing him. Plaintiff feared that, under the PIP's supervision terms, King's harassing behavior would worsen. Though not plaintiff's intention to incite an investigation, Carroll-Douglas promised to investigate the reported harassment.

         The harassment plaintiff reported then to Carroll-Douglas would not be the last. In total, plaintiff felt harassed by King and others when:

• King assigned plaintiff work without first effectively training him in defendant's software and how to complete certain assignments.
• King afforded plaintiff a mere one-day notice to complete work for an audit, despite affording another counselor three-week's notice.
• King made “nasty and unprofessional comments” to plaintiff, (Doc. 61-2, at 9), like:
o laughing at his questions and once questioning in return, “How are you a counselor, ” which plaintiff interpreted as “basically calling [him] dumb” (Id. at 10)
o and laughing during his muscle spasms.
• King instigated a complaint that led to plaintiff receiving a write-up for “not being available to drive” the client van and not timely reporting the doctor's appointment that caused his alleged unavailability, even though the at-issue driving duty and doctor's appointment occurred hours before plaintiff's scheduled shift and others but “never” plaintiff drove the van for defendant. (Id. at 15.)
• King increased plaintiff's workload, at one summer of 2018 staff meeting, by reassigning other counselors' individual-session clients to him, leaving him responsible for 10 to 15 individual clients' paperwork.
• Carroll-Douglas “constantly” held meetings with plaintiff, after he reported his concern that King was harassing him. (Id. at 16.)
• Carroll-Douglas “demanded [plaintiff] provide medical documentation anytime that [he] was tardy.” (Doc. 68-2, at 3.)
• Susan Montague, who replaced McKenzie as defendant's Director and also supervised plaintiff, dismissed plaintiff's question about the status of a raise he claimed by “getting smart” with him and stating, “That's why I'm never going to hire anybody with just an associate's [degree.]” (Doc. 61-2, at 25.)

         Following the PIP meeting, Carroll-Douglas resolved one of plaintiff's concerns when she “basically made [King] train [plaintiff].” (Id. at 12.) But overall, the balance of plaintiff's interactions with King, Montague, and Carroll-Douglas, made plaintiff feel “disrespected” and “targeted.” (Id. at 10.)

         Despite those feelings, plaintiff completed the PIP. Criticisms of plaintiff's punctuality, however, resurfaced. While at work on June 3, 2017, plaintiff suffered an injury. (Later, starting around February 19, 2018, plaintiff would make a workers' compensation claim for this injury.) In the weeks that immediately followed plaintiff's injury, leading up to July 7, 2017, King documented five instances of tardiness:

[June 12, 2017]: [Plaintiff's] schedule is 11:00am-7pm. [Plaintiff] arrived at work at 11:10am[;] however[, ] he signed in at 11:00am on sign in sheet.
[June 15, 2017]: [Plaintiff] got here at 11:30am[;] and [when] asked about his doctor's appointment[, ] he stated that his doctor would not see him. . . . [Plaintiff] contacted [his doctor] to get an excuse[, ] and the lady stated someone can call and talk to her if there should be some questions why he was not seen. I sent an email to [Carroll-Douglas] in human resources to ask if that would be enough[;] she stated okay[.]
[June 16, 2017]: [Plaintiff] sent an email stating he would be a little late[;] he just got out of therapy. [Plaintiff] called back at 11:01am to say he was hurting[, ] and he wanted to soak before he came in[;] then[, ] he asked if he could flex his time . . . . [Plaintiff] is scheduled to come in at 2pm due to night hoops[;] he didn't get here until 2:05pm.
[June 19, 2017]: [Plaintiff] is scheduled for 11:00am[.] [A]ccording to my watch and computer time it was between 11:03am and 11:05am[;] however[, ] he signed in at 11:00am. . . .
[June 28, 2017]: [Plaintiff] called and stated he was going to get some medicine and change his key for his office at 3:05pm[.] [I]t is now 4:30pm[, ] and he [is] not back yet.

(Doc. 61-4, at 2.) These issues earned plaintiff a written warning: “[plaintiff] needs to come to work as scheduled on time” and email when he is to be late or sick; otherwise, he will be subject to “[d]ischarge.” (Id. at 3.) Still, during this time period, on June 25, 2017, defendant raised plaintiff's pay rate to $19.56 per hour. Again, plaintiff complained for but never received a higher pay rate and retroactive pay at that claimed rate.

         Just shy of two months later, on August 2, 2017, defendant placed plaintiff on FMLA leave.

         By that time, plaintiff's doctor had completed two FMLA certification forms. The first, completed July 19, 2017, focused on plaintiff's pain from muscle-aches and migraines. It certified that plaintiff was able to perform his job's functions; but it also certified that plaintiff's condition would require monthly appointments for medically necessary treatment and “may cause [plaintiff] to be unable to work” the day of any flare-ups. (Doc. 68-10, at 4-5.) In the second certification form, completed August 1, 2017, plaintiff's doctor listed no particular “condition for which the employee seeks leave” but did certify plaintiff's need to undergo that day a procedure requiring a follow-up appointment. (Doc. 68-11, at 3-4.) Plaintiff's doctor further certified that “[d]ue to medications, ” plaintiff was unable to perform any driving functions of his job. (Id. at 3.)

         When plaintiff submitted the last of these forms on August 2, 2017, Shannell-Douglas advised plaintiff that “[he's] now on FMLA leave” and “to contact [defendant] in the morning by phone.” (Doc. 61-2, at 22.). Nothing shows that phone call ever occurred. Plaintiff remained on unpaid leave- “basically suspended, ” (Id. at 24), to borrow his words-for about the next two-and-a-half weeks, until he “tried to get short-term disability.” (Id. at 22.) At that point, defendant contacted plaintiff about his preference on coming back to work. Once plaintiff's doctor provided documentation that he was fit to return to work, defendant took plaintiff “off FMLA all together.” (Id.) (Later, on October 3, 2017, plaintiff would file with the Kansas Human Rights Commission and U.S. Equal Employment Opportunity Commission a charge against defendant of ongoing disability-based discrimination and retaliation, listing: this August 2017 incident of unpaid leave; the written warning for tardiness he received July 7, 2017; the PIP concerning poor attendance he received March 23, 2017; and the schedule-change meeting that occurred around December 2016 or January 2017.) Plaintiff resumed work August 18, 2017.

         One week later, on August 25, 2017, plaintiff's “intermittent leave began.” (Doc. 61-8, at 2.) Plaintiff exhausted the remaining 384 of his 480 FMLA-allotted leave hours by April 29, 2018. A May 3, 2018 letter and in-person meeting notified plaintiff of his FMLA leave's exhausted status. About two months later, on June 26, 2018, plaintiff requested a leave of absence spanning June 25 to July 16. Plaintiff specified the type of leave he was requesting as being leave “[f]or [his] own medical care” and an “[o]ther” reason. (Doc. 68-5, at 2.) For the “other” reason, plaintiff wrote: “I just lost my mother[, ] having physical and emotional issues.” (Id.) Elsewhere on the request form, as the reason for his leave request, plaintiff wrote: “Mother passed away, Need to handle her affairs, having cluster migraines.” (Id.) Explaining that plaintiff had already exhausted his allotted FMLA hours for the relevant 12-month period, defendant denied plaintiff's leave request. Around this time, specifically on June 24, 2018, defendant raised plaintiff's pay rate to $20.40 per hour.

         Plaintiff worked his last day for defendant in November 2018. On November 26, 2018, plaintiff applied for short-term disability benefits. Since that day, plaintiff has been unable to work for defendant as an Addictions Counselor.

         II. Standards

         A. Proceeding Pro Se

         Before turning to defendant's arguments, the court would note that plaintiff represents himself. That entitles plaintiff's filings to “a liberal reading.” Abdullhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010). Plaintiff's pro se status, however, does not “excuse [him] from following the strict requirements of Rule 56 in order to properly contest a summary judgment motion.” Schlecht v. Lockheed Martin Corp., 626 Fed.Appx. 775, 778-79 (10th Cir. 2015) (citing Abdullhaseeb, 660 F.3d at 1310). Nor does it empower this court to “act as [his] advocate.” Ford v. Pryor, 552 F.3d 1174, 1178 (10th Cir. 2008).

         B. Summary Judgment Review Standard

         To earn summary judgment, defendant, as the moving party, must show that genuinely undisputed facts entitle it, as a matter of law, to judgment. Fed.R.Civ.P. 56(a). Once defendant shows that some legally material fact is absent, plaintiff, as the nonmoving party, bears the burden to “‘set forth specific facts showing that there is a genuine issue for trial.'” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation omitted). The court credits plaintiff's evidence and any reasonable accompanying inferences. Id. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). But still, to create a “genuine, ” trial-worthy dispute, plaintiff must support his factual position with ...

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