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Lukudu v. JBS USA, LLC

United States District Court, W.D. Kentucky, Louisville Division

March 14, 2014

ARAFU LUKUDU, et al., Plaintiffs,
JBS USA, LLC, et al., Defendants.


THOMAS B. RUSSELL, District Judge.

This matter is before the Court upon Defendants JBS USA, LLC, and Swift Pork Company's Motion for Summary Judgment. (Docket No. 22.) Plaintiff Abbas Ibrahim has responded in opposition, (Docket No. 29), and Defendants have replied, (Docket No. 30). This matter now if ripe for adjudication. For the reasons that follow, Defendants' Motion will be GRANTED and summary judgment entered in their favor.


Plaintiffs Arufu Lukudu and Abbas Ibrahim filed their Complaint in this matter on October 24, 2012, asserting various claims for relief arising out of the termination of their employment with Defendants. ( See Docket No. 1.) Plaintiffs have informed the Court that since the filing of Defendants' Motion for Summary Judgment, Plaintiff Lukudu has reached a settlement agreement with Defendants and is no longer a party to this action. (Docket No. 29, at 1.) Accordingly, this Opinion will address itself to the claims of the remaining Plaintiff, Ibrahim.

Much of the factual background pertinent to this action does not appear in dispute. JBS USA, LLC (JBS), is a hog slaughtering and processing plant located in Louisville, Kentucky. Employees at JBS are represented by the United Food and Commercial Workers International Union, District Union Local 227. Ibrahim and Lukudu were bargaining unit employees represented by the Union. Ibrahim is a black male who was born in Sudan and who immigrated to the United States in 2004. Ibrahim and Lukudu have lived together since 2008 and have a child together. They are not married, although at various times have referred to one another as the other's husband or wife.

JBS had a written attendance policy in effect at the time of Ibrahim's termination. That policy is embodied in JBS's "Absentee Control Program." (Docket No. 25-5.) JBS also has a written "Employee Handbook, " which incorporates the Absentee Control Program. (Docket No. 25-6.) JBS reviews the Employee Handbook and Absentee Control Program with all newly hired employees. The Absentee Control Program requires that employees call in to a specified hotline number if they cannot report for work as scheduled or on time. Employees are assessed "occurrence points" for missing work or failing to report to work on time. For example, an employee's failure to report to work on time is recorded and counted as a ½ occurrence point, and an employee's failure to report to work for any reason (other than certain excused absences) is recorded and counted as 1 occurrence point for each day missed, provided that the employee notifies JBS within two hours of his or her scheduled starting time by calling in. (Docket No. 25-5, at 2.) An employee's failure to report to work for two or more consecutive days due to illness will be recorded and counted as only 1 occurrence point, provided that the employee's illness is substantiated by appropriate documentation. (Docket No. 25-5, at 2-3.) An employee's failure to report to work and failure to notify JBS by calling in is considered a "no call/no show" and recorded as 2 occurrence points. (Docket No. 25-5, at 3.) An employee who is absent from work for three or more consecutive days without good cause is deemed to have voluntarily quit. (Docket Nos. 25-2, at 6; 25-5, at 3.)

An employee who accumulates 5 occurrence points within a twelve-month period is issued a "Final Written Warning, " and an employee may be terminated for accumulating 7 or more occurrence points within that period. (Docket No. 25-5, at 4.) (Docket No. 25-5, at 4.) The Employee Handbook reinforces this provision of the Absentee Control Program by listing "exceed[ing] six and a half (6 ½) absence occurrences within one year" as a "major violation, " meaning one which is "just cause for termination." (Docket No. 25-6, at 8-9.)

Under the terms of the Absentee Control Program, certain absences are considered "excused absences" and are not counted as "occurrences." Among such excused absences are "[a]uthorized leaves of absence for reasons of serious or emergency nature." (Docket No. 25-5, at 3.) The policy states that such "[l]eaves of absence must be approved by the Human Resources Manager and applicable Division Manager." (Docket No. 25-5, at 3.) The Employee Handbook lists and describes the types of leaves of absence that are available to employees, among which is leave under the Family and Medical Leave Act (FMLA). (Docket No. 25-6, at 12.) The policy explains that an employee is responsible for completing a written application for FMLA leave. (Docket No. 25-6, at 12.) The policy further provides that if the employee is unable to complete the application before taking leave due to an accident or circumstances beyond the employee's control, an application for leave may be completed "upon the employee's first reasonable opportunity to do so." (Docket No. 25-6, at 12.) The policy also explains that "[i]n order for an FMLA leave to be approved, it is the responsibility of the employee to obtain from their physician a fully executed Physician's Certification packet, which will be provided to the employee by [JBS]." (Docket No. 25-6, at 13.) Employees are advised that their failure to obtain and submit the completed Physician's Certification packet may result in delay or denial of FMLA leave, in which case "the leave may be treated as an unexcused absence." (Docket No. 25-6, at 13.) An employee who fails to return to work upon expiration of an approved FMLA leave is considered to have voluntarily quit. (Docket No. 25-6, at 13.)

The Employee Handbook additionally contains a "Zero-Tolerance Harassment Policy, " which prohibits all forms of discrimination and harassment on the basis of sex, race, age, national origin, or disability. (Docket No. 25-6, at 10-11.) That policy advises that any employee who feels he or she has been subject to discrimination or harassment should report the alleged charge to a number of listed individuals or by calling a corporate hotline number. (Docket No. 25-6, at 11.) JBS's nondiscrimination policy is further reflected in the collective-bargaining agreement between it and the Union. ( See Docket No. 25-2, at 3.)

Ibrahim began working at JBS in 2004. Ibrahim was discharged in 2006 for three no call/no shows but was subsequently reinstated after providing documentation showing he had called in prior to each absence. On June 6, 2011, JBS issued Ibrahim a Final Written Warning informing him that he had accumulated 6 ½ occurrence points and may be terminated upon accumulating 7 or more. (Docket No. 25-14, at 2.) On June 7, 2011, Ibrahim met with his supervisor and was given a copy of his attendance calendar. (Docket No. 25-3, at 6-7.) Ibrahim was scheduled to work the following day, June 8, 2011, beginning at 7:00 a.m.[1] Around 5:00 a.m. on June 8, Ibrahim states that he received a call from Norton Hospital informing him that Lukudu, who was then pregnant, was going to have an operation.[2] (Docket No. 25-3, at 6.) Ibrahim states that he called the call-in number at JBS and left a message telling them "I have a family problem and I am going to the hospital but like I didn't tell them when I'm going to be back." (Docket No. 25-3, at 6.) Ibrahim was again absent on June 8, because, as he testified: "My wife, she was in the hospital and she was in serious - she had disease and the doctor he said he gonna - she gonna have surgery." (Docket No. 25-3, at 5, 7.) JBS terminated Ibrahim the following day. (Docket Nos. 25-3, at 7; 25-13, at 2.) The "Termination Notice" provided to Ibrahim on June 9, 2011, recited that Ibrahim's attendance had been reviewed with him on June 6 when he had 6 ½ occurrence points and that Ibrahim acknowledged receiving final written warning, and informed Ibrahim that he was being terminated for accumulating 7 ½ occurrence points. (Docket No. 25-13, at 2.)

Ibrahim testified that he spoke to his supervisor about requesting FMLA leave on June 7, 2011, but denies that he picked up a packet of FMLA forms. (Docket No. 25-3, at 5-6.) Ibrahim further acknowledged that he did not submit any paperwork for FMLA leave concerning his absences. (Docket No. 25-3, at 5-6.)

Ibrahim filed a grievance contesting his termination, also on June 9. (Docket No. 25-15, at 2.) The Union pursued Ibrahim's grievance through Steps 1 and 2 of the grievance process but did not pursue it further. ( See Docket No. 25-15, at 2.)

Then on August 8, 2012, Ibrahim filed a "Charge of Discrimination" with the Kentucky Commission on Human Rights and the Equal Employment Opportunity Commission (EEOC). (Docket No. 25-16, at 2.) In the section of that document for identifying the bases of discrimination, Ibrahim checked the boxes for "Race, " "National Origin, " and "Disability." (Docket No. 25-16, at 2.) In that sworn Charge, Ibrahim stated:

On June 8, 2011, I was called into the office and told that my wife was going to deliver the baby and that I should go to the hospital. When I sought to leave work to visit my wife at the hospital for the impending birth of my child, I was disciplined and terminated from employment on June 9, 2011. Other similarly-situated employees of JBS Swift were treated more favorably in the terms and conditions of employment.
I believe I have been discriminated against due to my race, Black and National Origin Sudanese, in violation of Title VII of the Civil Rights Act of 1964, as amended.[3]

(Docket No. 25-16, at 2.) The EEOC issued Ibrahim a notice of dismissal and right to sue on July ...

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