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Brown v. Rock-Tenn Services, Inc.

United States District Court, W.D. Michigan, Southern Division

November 17, 2016

CURTIS BROWN, Plaintiff,
v.
ROCK-TENN SERVICES, INC., Defendant.

          OPINION

          HON. JANET T. NEFF United States District Judge.

         Plaintiff Curtis Brown filed this action against Defendant Rock-Tenn Services, Inc. alleging a claim under the Family and Medical Leave Act (FMLA). Pending before the Court is Defendant's Motion for Summary Judgment (Dkts 96, 97); Plaintiff has filed a Response (Dkt 100), and Defendant has filed a Reply (Dkt 101). Having fully considered the parties' submissions, the Court concludes that oral argument would not assist in the disposition of the issues presented. See W.D. Mich. LCivR 7.2(d).

         For the reasons that follow, Defendant's motion for summary judgment is granted in part and denied in part.

         I. Facts

         Pursuant to this Court's dispositive motion procedures, the parties have stipulated to the following comprehensive and well-drafted Joint Statement of Facts (JSMF) (Dkt 103) for purposes of the motion:

         1. Rock-Tenn operates mills across the country that produce merchandising displays, corrugated packaging and consumer packaging, one of which is located in Battle Creek, Michigan.

         2. The Battle Creek mill produces paper and cardboard consumer packaging for snacks, pasta and other dry foods.

         3. Plaintiff Curtis Brown began his employment at the Battle Creek mill on September 30, 1996.[1]

         4. Plaintiff was a member of the Graphic Communications Conference/International Brotherhood of Teamsters, Local #705S of District Council 3 (the "Union").

         5. The terms and conditions of Plaintiffs employment were covered by a collective bargaining agreement ("CBA").

         6. Plaintiff held a variety of positions throughout his career with Rock-Tenn, including reserve, sixth hand, fifth hand, fourth hand, third hand, and clay coater helper.

         7. Article 7.10 of the 7/1/09 to 6/30/13 CBA details the procedures for filling a shift, and requires supervisors to go up and down the line of progression of employees qualified to do the job.

         8. Plaintiff was on the overtime call-in list for back tender, [and] had worked in the position as recently as 2013.

         Plaintiffs Work History

         9. Brown received disciplinary warnings during his employment. This was, on average, less than ½ a disciplinary write up a year.

         Plaintiffs Certification for Intermittent FMLA Leave

         10. Plaintiff has been taking intermittent leave since approximately 2004 to care for his wife, Joanne.

         11. To take these leaves, Plaintiff would call a third-party administrator, whose telephone number was posted in the plant, to report his leave usage.

         12. Relevant documentation would also be submitted to the third-party administrator at the Benefit Service Center, not to Plaintiffs supervisor.

         13. The CBA requires employees to call in one hour ahead of any absences.

         14. Plaintiff did not receive a Handbook containing FMLA procedures.

         15. Plaintiff received written documentation advising him "How to Report Intermittent Absences" to the Benefits Service Center.

         16. No one from Rock-Tenn told Plaintiff that he would be terminated or disciplined for using FMLA leave.

         17. No management employee ever made negative statements regarding Plaintiff s FMLA usage or his wife's medical condition.

         18. Each time Plaintiff used leave prior to September 2013, he was returned to the same position, with the same wages and benefits.

         19. Plaintiff used FMLA leave a total of 5 times in 2011 to 2013. Events in the Summer and Fall of 2013 20. On July 17, 2013, Plaintiff received a letter requesting updated documentation from his wife's health care provider to support his need for continued absences.

         21. On August 30, 2013, Plaintiff received a letter detailing the steps he needed to take to certify his leave request.

         22. The letter included a Health Care Provider Certification Form and the "How to Report Intermittent Absences" flyer, and instructions for Plaintiff to return [the] form to the Benefit Service Center.

         23. On or about September 11, 2013, Joanne Brown's (Plaintiffs wife's) psychiatrist, L. Humberto Covarrubias completed the Health Care Provider Certification Form.

         24. The "serious health condition" identified by Dr. Covarrubias was described as "recurrent episodes of distress with confusion, disorientation, fall risk, mood liability, chronic gastrointestinal symptoms" as well as "pancreatitis."

         25. Dr. Covarrubias had last treated Joanne Brown on September 5, 2013, with her next scheduled appointment three months later.

         26. On September 19, Plaintiff received a notice approving his intermittent leave request, which again enclosed another "How to Report Intermittent Absences" flyer.

         Events on September 27. 2013

         27. On the evening of September 26, 2013, Plaintiff s wife told him that she had to go to the doctor the following day and wanted him to go with her. Plaintiff said he was scheduled to work, but agreed to take her.

         28. On September 27, 2013, Plaintiff was scheduled to work a 7 AM to 3 PM shift, but arrived at 2:38 am to work overtime "on the front end."

         29. Plaintiff was assigned to work "second back tender" in the machine room, which was different than his regular position as a clay coater helper.

         30. When Plaintiff arrived for the start of his overtime shift, he did not tell anyone at Rock-Tenn that he had to leave his regular shift because his wife had a doctor's appointment.

         31. Plaintiff did not, during his four hour overtime shift, tell anyone at Rock-Tenn that he could not work his regular 7 AM shift.

         32. After Plaintiffs supervisor, Bob Whitelow, ordered Plaintiff to move up the line of progression and work as the back tender, Plaintiff said that he was going home "FMLA" 33. Because Brown had worked the "second back tender" position that morning, he was in the line of progression to work the "back tender" position.

         34. Plaintiff did not mention his wife or her medical condition during this conversation with Bob Whitelow.

         35. A few minutes later, Plaintiff and Whitelow had a second meeting. Whitelow again ordered Plaintiff to work the back tender position, and Plaintiff again stated he was "going home" due to the FMLA

         36. Whitelow paged Plaintiff over the intercom system and convened a third meeting, this time with Plaintiffs union representative, Ken Conklin, and Production Superintendent Stephen Rudy.

         37. Plaintiff was instructed to work the back tender job.

         39. Conklin advised Plaintiff that he was refusing a direct order and that he could be disciplined.

         40. No one asked Plaintiff why he was going home.

         41. Plaintiff did not perform any work between the start of his shift and leaving the plant.

         42. Rock-Tenn subsequently suspended Plaintiff pending an investigation, and Tom Shannon informed Plaintiff that he was suspended for insubordination.

         43. Plaintiff took his wife to Dr. Ismailoglu's offices, which is less than a half hour away from Plaintiffs home.

         Termination of Plaintiffs Employment

         44. On October 2, 2013, Rock-Tenn conducted an investigatory interview with Plaintiff.

         45. Union president Stan Maurer, Plant Manager Tom Shannon, Stephen Rudy, and Human Resources Manager Karol Fecteau were also present. During this interview, Brown stated that he had performed the back tender position in 2013 and that he did not ...


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