United States District Court, W.D. Michigan, Southern Division
JANET T. NEFF United States District Judge.
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).
reasons that follow, Defendant's motion for summary
judgment is granted in part and denied in part.
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:
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.
Battle Creek mill produces paper and cardboard consumer
packaging for snacks, pasta and other dry foods.
Plaintiff Curtis Brown began his employment at the Battle
Creek mill on September 30, 1996.
Plaintiff was a member of the Graphic Communications
Conference/International Brotherhood of Teamsters, Local
#705S of District Council 3 (the "Union").
terms and conditions of Plaintiffs employment were covered by
a collective bargaining agreement ("CBA").
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.
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.
Plaintiff was on the overtime call-in list for back tender,
[and] had worked in the position as recently as 2013.
Brown received disciplinary warnings during his employment.
This was, on average, less than ½ a
disciplinary write up a year.
Certification for Intermittent FMLA Leave
Plaintiff has been taking intermittent leave since
approximately 2004 to care for his wife, Joanne.
take these leaves, Plaintiff would call a third-party
administrator, whose telephone number was posted in the
plant, to report his leave usage.
Relevant documentation would also be submitted to the
third-party administrator at the Benefit Service Center, not
to Plaintiffs supervisor.
CBA requires employees to call in one hour ahead of any
Plaintiff did not receive a Handbook containing FMLA
Plaintiff received written documentation advising him
"How to Report Intermittent Absences" to the
Benefits Service Center.
one from Rock-Tenn told Plaintiff that he would be terminated
or disciplined for using FMLA leave.
management employee ever made negative statements regarding
Plaintiff s FMLA usage or his wife's medical condition.
Each time Plaintiff used leave prior to September 2013, he
was returned to the same position, with the same wages and
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.
August 30, 2013, Plaintiff received a letter detailing the
steps he needed to take to certify his leave request.
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.
or about September 11, 2013, Joanne Brown's (Plaintiffs
wife's) psychiatrist, L. Humberto Covarrubias completed
the Health Care Provider Certification Form.
"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
Covarrubias had last treated Joanne Brown on September 5,
2013, with her next scheduled appointment three months later.
September 19, Plaintiff received a notice approving his
intermittent leave request, which again enclosed another
"How to Report Intermittent Absences" flyer.
on September 27. 2013
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.
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."
Plaintiff was assigned to work "second back tender"
in the machine room, which was different than his regular
position as a clay coater helper.
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
Plaintiff did not, during his four hour overtime shift, tell
anyone at Rock-Tenn that he could not work his regular 7 AM
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
Plaintiff did not mention his wife or her medical condition
during this conversation with Bob Whitelow.
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
Whitelow paged Plaintiff over the intercom system and
convened a third meeting, this time with Plaintiffs union
representative, Ken Conklin, and Production Superintendent
Plaintiff was instructed to work the back tender job.
Conklin advised Plaintiff that he was refusing a direct order
and that he could be disciplined.
one asked Plaintiff why he was going home.
Plaintiff did not perform any work between the start of his
shift and leaving the plant.
Rock-Tenn subsequently suspended Plaintiff pending an
investigation, and Tom Shannon informed Plaintiff that he was
suspended for insubordination.
Plaintiff took his wife to Dr. Ismailoglu's offices,
which is less than a half hour away from Plaintiffs home.
of Plaintiffs Employment
October 2, 2013, Rock-Tenn conducted an investigatory
interview with Plaintiff.
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