United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, CHIEF JUDGE.
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.
STATEMENT OF FACTS AND CLAIMS
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).
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 –
• Five occurrences in a twelve month period –
• Six occurrences in a twelve month period - SUSPENSION
• Seven occurrences in a twelve month period –
• 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
• Attendance will be tracked over a rolling twelve month
period – NOT A CALENDAR YEAR.
(Murphy Aff. Ex. 1, at 2-3).
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,  would result in his
termination. (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
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). (Murphy Aff. Ex. 6, at 2-3, DN
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. 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).
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. (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
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,
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).
Court has subject-matter jurisdiction of this matter based
upon federal question ...