United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
This matter is before the Court on UPS' motion for summary judgment on Gene Parks' employment discrimination claims under the Family and Medical Leave Act, the Kentucky Civil Rights Act and Kentucky common law (Doc. # 28). In its motion, UPS argues that Parks failed to establish a prima facie case of FMLA interference or retaliation because he did not demonstrate that there was a causal connection between his use of FMLA leave and his termination. Second, UPS asserts that Parks failed to establish a prima facie case of disability discrimination under the Kentucky Civil Rights Act. Third, Defendant argues that the FMLA preempts Plaintiff's claim for wrongful discharge in violation of public policy. The Court has removal jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1441, and 1446.
II. Factual and Procedural Background
In February 1999, Defendant UPS Supply Chain Solutions, Inc. (hereinafter "UPS") hired Plaintiff Gene Parks (hereinafter "Parks") to work at its Hebron campus. (Doc. # 32 at 61). As a material handler assigned to UPS' Honeywell account, Parks' job duties included driving a forklift, moving boxes, picking products and controlling inventory. ( Id. at 62-68). Supervisor TJ Lovelace (hereinafter "Lovelace") characterized Parks as an "average" employee who sometimes worked diligently throughout his shift and sometimes slacked off. (Doc. # 29-1 at 16). Although Lovelace did not recall having any specific problems with Parks when he worked on the Honeywell account, the record indicates that Parks' work was not always accurate. (Docs. # 32 through 38). Between 2002 and 2009, Parks' supervisors filled out fifteen SCS Discrepancy Forms detailing his errors in pallet building, putaway and labeling. ( Id. ).
While assigned to the Honeywell account, Parks took a leave of absence on several occasions. (Doc. # 32 at 84). In late 2003, Parks requested time off to recover from an allergic reaction and a blood clot. ( Id. at 84; Docs. # 35-3 and 35-4). Parks also took leave in July 2003 and November 2004 to deal with complications from a shoulder injury that he sustained in a car accident a few years earlier. ( Id.; Docs. # 35-2 and 35-6). In June 2004, January 2005 and February 2006, UPS gave Parks more time off to care for his ailing wife, who suffers from a heart condition. ( Id. at 85; Docs. # 35-5, 32-6 and 32-7). By Parks' own admission, UPS never interfered with him taking leave on these occasions. ( Id. at 91).
In 2009, UPS transferred Parks to the new Birkenstock account, where he continued to work as a material handler under the supervision of Khris Jacobs (hereinafter "Jacobs") and Jennifer Valdez (hereinafter "Valdez"). ( Id. at 62). Around this time, Parks began experiencing severe neck pain. (Doc. # 32-9). When his pain persisted, Parks applied for FMLA certification from UPS' Human Resources Department. (Doc. # 32-10). In accordance with company policy, Parks asked his physician to complete the necessary paperwork, then submitted it to a Human Resources Representative. (Docs. # 30-1 at 17 and 33 at 11). On February 1, 2010, Parks was approved for FMLA intermittent leave, which allowed him to take up to twelve weeks of leave per year to cope with flare-ups or receive medical treatment. (Doc. # 32-10). Parks' supervisors, aware of his certification, gave him time off for a series of cortisone injections and repeatedly told him to go home when he began experiencing flare-ups on the job. (Docs. # 31-5, 31-7 and 32-19). However, Parks' paperwork indicated that he was capable of performing all essential job functions in between flare-ups. ( Id. ).
UPS' "progressive discipline policy" is designed to address a variety of employee infractions, including sub-par performance, safety violations, misconduct, rule violations, tardiness and insubordination. (Doc. # 28-2 at 1). Supervisors typically issue informal "verbal warnings" to first time offenders, then resort to first, second, third and final written warnings for subsequent infractions. ( Id.; Doc. # 29-1 at 28). Termination is the final step in the disciplinary process. (Doc. # 29-1 at 29). Management has discretion to deviate from this process and proceed straight to a final written warning or termination if the employee's conduct is severe enough to warrant such action. (Doc. # 31-1 at 62). These warnings "roll off" the employee's record after a given amount of time, usually one year, and do not carry over from one type of infraction to another. (Docs. # 29-1 at 35-36 and 31-1 at 52, 92).
In May 2010, Valdez and Jacobs issued Parks a verbal warning for failure to meet standard productivity goals (hereinafter "MARs") in either replenishment or picking. (Doc. # 31-7). Valdez also noted that Parks had a record of poor quality in receiving. ( Id. ). Parks attributed his errors to a medical condition that adversely affected his concentration, quality and performance. ( Id. ). Human Resources Representative Julie Welch (hereinafter "Welch"), also present during this conversation, informed Parks that his current FMLA paperwork only authorized intermittent leave and indicated that he could perform all essential job functions between flare-ups. ( Id. ). When Parks admitted that he had asked his doctor not to label him as disabled because he feared losing his job, Welch urged Parks to update his FMLA paperwork for his own safety and that of other employees. ( Id. ). Although Welch admitted that she could not guarantee Parks a job if he updated his paperwork, she promised that he would not be treated any differently because of a disability. ( Id. ). She further explained that Parks "has to either get updated FMLA paperwork that lists specific job duties that he is unable to perform or be held accountable at the current production levels (MARS)." ( Id. ).
A few days later, Parks received a first written warning for low MARs in picking. (Doc. # 32-18). He immediately e-mailed Human Resources Supervisor Jennie Davis and informed her that he intended to submit updated FMLA paperwork reflecting his physical limitations. ( Id. ). Parks also expressed concern that he was "being rushed out the door" because this write up "was a week or so later after the first write up." ( Id. ). He felt "backed into a corner" because he often felt able to work, and did not want to use his intermittent leave on those occasions, but feared that he would get written up if his performance was "less than 120%." ( Id. ).
That same day, Parks asked Valdez for advice about his situation. (Doc. # 32-19). Valdez felt that Parks was "fishing for an answer" and wanted her to either tell him to go home or allow him to continue to work with excuses. ( Id. ). She refused to do either, explaining to Parks that he needed to "be safe and follow his doctor's orders" because he would receive no accommodations until the updated paperwork was processed. ( Id. ). Human Resources later received and approved the updated FMLA paperwork, which reflected Parks' limited ability to drive a forklift, bend, stoop and lift. (Doc. # 32-11).
In August 2010, Lovelace replaced Jacobs as a supervisor on the Birkenstock account. (Doc. # 29-1 at 8). Shortly thereafter, Lovelace and Valdez began using a random audit system to review employee performance. (Docs. # 29-1 at 64-72 and 31-1 at 40, 72-104). When either supervisor had some spare time, they would consult their record of past audits and select an employee whose work had not been reviewed recently. (Docs. # 29-1 at 65 and 31-1 at 30). Usually they would audit this employee by checking a small percentage of the boxes he put away that day, but they occasionally planted errors for the employee to find instead. ( Id. ). Sometimes they also asked material handlers to audit an entire aisle of the warehouse. ( Id.; Doc. # 29-1 at 66).
In addition to this auditing process, Lovelace and Valdez regularly reviewed production reports, which include a list of boxes that were not logged into the computer system that day. (Docs. # 31-1 at 30 and # 30-1 at 15). When a material handler puts a box away at a physical location in the warehouse, that location must be recorded in the computer system so pickers can easily retrieve that package for later shipment. ( Id. ). If the computer system is inaccurate, reflecting either no physical location or an incorrect physical location, then the pickers must search throughout the warehouse until they find the product. ( Id. ). This time-consuming process has an adverse impact on overall productivity. ( Id. ). The pickers' efficiency is similarly impaired when the material handler puts a box away upside down because they cannot quickly read and scan the label on the boxes. ( Id. ).
Over the next few months, Lovelace and Valdez disciplined Parks several times for such errors. (Docs. # 32-23, 32-24, and 32-29). In December 2010, Parks received his first written performance warning because he put cartons away physically but recorded an incorrect location in the computer system. (Doc. # 32-23). One month later, an audit revealed that Parks had physically put away four boxes in receiving but failed to enter their location in the computer system. (Doc. # 32-24). Lovelace and Valdez issued a second written performance warning for this error. ( Id. ). In May 2011, Parks received his third written performance warning for putting six boxes away upside down. (Doc. # 32-29). All three warnings indicated that Parks would face further discipline or termination if he did not improve his quality while meeting his productivity goals. ( Id. ).
One week later, Parks earned a final written performance warning for putting seven boxes away upside down. (Doc. # 31-19). According to Lovelace and Valdez, Parks' boxes were the only ones out of those audited that were upside down. ( Id. ). When Parks found out about this final warning, he approached Lovelace and Valdez individually and explained that he simply was not as fast as he used to be due to his medical condition. (Doc. # 31-6). Both supervisors informed Parks that FMLA only covers missed time, not performance at work, and recommended that he submit new FMLA paperwork if he felt that he could not do his job. ( Id. ).
Parks also had a record of safety violations, equipment handling errors and behavioral issues while working on the Birkenstock account. (Docs. # 29 at 11 and 31-9). Although his supervisors made notes about each incident, it appears that Parks was only disciplined for two infractions. ( Id. ). The first took place in Fall 2010, shortly after the news broke that UPS had lost the Honeywell account to an underbidder and planned to close the facility. (Doc. # 29-1 at 14). Parks went to the Honeywell building and badgered those employees about the loss of the account and their potential unemployment. (Doc. # 31-13). Parks maintained that he was trying to reach out to his former co-workers, but many of the employees were offended by his remarks. (Doc. # 32 at 154-56). Due to the severity of Parks' actions, Valdez issued him a final conduct/behavior warning. ( Id. ). Valdez disciplined Parks again in April 2011, when she caught him driving down an aisle backwards. (Doc. # 31-17). He received his "only warning" for this safety violation. ( Id. ).
As Parks' disciplinary file at UPS grew thicker, so did his medical records. In early 2010, Parks' family doctor, Dr. Gary Melton (hereinafter "Dr. Melton"), prescribed a three month course of physical therapy to strengthen Parks' muscles. (Docs. # 32 at 20-22, 99-103 and 32-13). However, the physical therapy did not alleviate the pain, so Dr. Melton referred Parks to the Mayfield Clinic, where he received cortisone shots on a regular basis. ( Id. ). When this course of treatment proved ineffective, Parks returned to Dr. Melton to discuss his remaining options. (Doc. # 32 at 123). Dr. Melton referred Parks to the CAST Institute, which specializes in spinal injuries. (Doc. # 32 at 21). After performing a series of MRIs and x-rays, Dr. Nael Shanti (hereinafter "Dr. Shanti") determined that Parks was probably suffering from a degenerative disc condition. ( Id. ).
When Parks had to leave work early for doctor's appointments or other treatment, he always informed Lovelace and Valdez. (Docs. # 32 at 45-47 and 29 at 48). Parks also notified his supervisors when it became likely that he would need surgery. ( Id. ). His last FMLA certification, submitted in January 2011, also indicated that Parks would likely undergo surgery in the future, at which time he would require continuous leave to recover from the procedure. (Doc. # 32-10). In the mean time, Parks inquired about temporarily working as a floor picker, but there were no available positions. (Doc. # 32 at 45-47). Parks also did not want to operate an older-model cherry picker because its jerky movements aggravated his neck condition, but he continued to do so because he was one of the few employees certified to operate heavy equipment. ( Id. ).
In late May, Parks had his second appointment with Dr. Shanti, who confirmed that surgery would be necessary in the near future. (Docs. # 32 at 18-19, 23 and 32-14). Parks went to work as usual that week, but left early on Friday due to a flare-up. (Doc. # 32 at 23). When he got home, Parks had a voicemail from Dr. Shanti, explaining that his surgery had been scheduled for June 16, 2011. ( Id. at 24). Parks alleges that he told his supervisors about his scheduled surgery at the beginning of his shift the following week. ( Id. at 25-26). However, Lovelace and Valdez do not recall discussing Parks' scheduled surgery that ...