Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stearns v. M & M Cartage Co., Inc.

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

September 20, 2019

ROBERT STEARNS PLAINTIFF
v.
M & M CARTAGE CO., INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, CHIEF JUDGE.

         This matter is before the Court on Defendant’s Motion for Summary Judgment (DN 24), Defendant’s Motion to Strike (DN 32), and Plaintiff’s Motion for Alternative Dispute Resolution (DN 36). The motions are now ripe for a decision. For the reasons outlined below, the motions are DENIED.

         I. STATEMENT OF FACTS AND CLAIMS

         Plaintiff Robert Stearns (“Stearns”) was employed by Defendant M&M Cartage Co., Inc. (“M&M”) as a local delivery driver from 2012 until his termination on May 20, 2016. (Stearns Dep. 30:12-17, Oct. 9, 2017, DN 24-2; Def.’s Mot. Summ. J. Ex. B, at 2, DN 24-3; Mullaney Aff. ¶ 11, DN 24-4). According to M&M, it terminated Stearns for his absenteeism and refusing to dispatch. (Mullaney Aff. ¶¶ 11-12; Murphy Aff. ¶ 15, DN 24-5; Murphy Aff. Ex. 8, at 2, DN 24-5).

         For attendance purposes, M&M uses a rolling year, which “starts with the first occurrence” and then proceeds “by reviewing the previous twelve months from the current date.” (Murphy Aff. Ex. 1, at 2, DN 24-5). Its attendance policy defines the term “occurrence” as follows:

One day or consecutive days of unexcused absences will be counted as an individual occurrence. More than three (3) consecutive days absence will require a physician’s statement in order to be eligible for one occurrence. Failure to bring a physician’s statement will result in those days being counted as individual occurrences.

(Murphy Aff. Ex. 1, at 2). The attendance policy addresses the consequences of numerous occurrences as follows:

• Four occurrences in a twelve month period – VERBAL WARNING
• Five occurrences in a twelve month period – WRITTEN WARNING
• Six occurrences in a twelve month period - SUSPENSION
• Seven occurrences in a twelve month period – TERMINATION
• Progressive discipline will apply to all employees affected by this policy. Employees will receive notification of attendance problems, which will allow them an opportunity to improve their attendance and understand the consequences.
• The Vice President must approve any exceptions to this policy.
• Attendance will be tracked over a rolling twelve month period – NOT A CALENDAR YEAR.

(Murphy Aff. Ex. 1, at 2-3).

         On November 4, 2015, M&M gave Stearns a written warning notifying that he had six occurrences and that any further occurrence before August 3, 2016, [1] would result in his termination.[2] (Murphy Aff. Ex. 4, at 2). Despite what appeared to be a final warning, Stearns continued to miss work over the next six months, but M&M did not terminate his employment.

         According to M&M’s Human Resource Manager, Stacey Murphy (“Murphy”), Stearns had the following absences prior to his termination: January 4, 2016; February 10, 2016; February 15, 2016; March 22, 2016; April 25, 2016; April 29, 2016; May 2-3, 2016 (which would have counted as one occurrence under M&M’s policy); and May 16-20, 2016 (which would have counted as one occurrence if Stearns had provided a note from a doctor).[3] (Murphy Aff. Ex. 6, at 2-3, DN 24-5).

         Towards the end of Stearns’s employment, there was some communication between Stearns and M&M relating to his need for leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654.[4] Stearns contacted M&M’s Vice President of Operations, Marty Mullaney (“Mullaney”), in approximately March 2016 regarding a need for FMLA leave for Stearns’s wife. (R. Stearns Dep. 93:11-18, Oct. 9, 2017, DN 24-2; Mullaney Aff. ¶ 13, DN 24-4). Murphy subsequently contacted Stearns to inform him that his 2015 FMLA leave had expired and requested that he recertify the need for additional FMLA leave. (Murphy Aff. ¶ 10). According to Murphy, she prepared the FMLA certification form and left it for Stearns in the M&M dispatch office. (Murphy Aff. ¶ 10; Murphy Aff. Ex. 5, at 2-7, DN 24-5). Stearns never completed the healthcare provider certification form, and he denies ever receiving it. (Murphy Aff. ¶ 10; R. Stearns Dep. 119:14-22, DN 24-2).

         On or about May 12, 2016, Stearns had a conversation with Murphy in which Stearns mentioned that they suspected his wife had cancer and he wanted information about applying for short-term disability coverage for his wife.[5] (Murphy Aff. ¶ 12; Murphy Aff. Ex. 7, at 2, DN 24-5). In Murphy’s memorandum memorializing that conversation, Murphy does not mention Stearns’s potential eligibility for FMLA leave for his wife’s suspected cancer diagnosis.

         According to M&M, Stearns was absent from work from May 16-20, 2016. (Hayden Aff. ¶ 6, DN 24-7; Murphy Aff. Ex. 6, at 3). On May 20, 2016, M&M terminated Stearns for absenteeism and his refusal to dispatch. (Mullaney Aff. ¶¶ 11-12; Murphy Aff. ¶ 15; Murphy Aff. Ex. 8, at 2).

         Stearns filed this action in Jefferson Circuit Court, Kentucky, asserting claims of retaliation and interference in violation of the FMLA. (Compl. ¶¶ 1, 51-71, DN 1-2). M&M timely removed the case to this Court. (Notice Removal, DN 1). Following the completion of discovery, M&M has moved for summary judgment. (Def.’s Mot. Summ. J., DN 24). M&M has also moved to strike Stearns’s affidavit, and Stearns has moved for a settlement conference. (Def.’s Mot. Strike, DN 32; Pl.’s Mot. Alternative Dispute Resolution, DN 36).

         II. JURISDICTION

         This Court has subject-matter jurisdiction of this matter based upon federal question ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.