United States District Court, N.D. Indiana, Fort Wayne Division
LANCE B. ROBEY, Plaintiff,
WEAVER POPCORN COMPANY, INC., Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Plaintiff, Lance B. Robey, has sued his former employer,
Weaver Popcorn Company, Inc. The Plaintiff alleges that the
Defendant retaliated against him and interfered with his
attempt to secure leave under the Family Medical Leave Act
(FMLA). This matter is before the Court on the
Defendant's Motion for Summary Judgment [ECF No. 22],
filed on August 17, 2017. The Defendant maintains that the
undisputed material facts show that the Plaintiff was not
eligible for FMLA leave. Further, the Plaintiff is not
entitled to recover for retaliation because he cannot
establish that there was a causal connection between his
attempt to take leave and his termination from employment,
that he was meeting his employer's legitimate
expectations, that similarly situated employees who did not
engage in protected activity were treated more favorably, or
that the Defendant's non-retaliatory reasons for taking
the adverse actions were a pretext for retaliation.
24, 2016, the Plaintiff, proceeding pro se, filed a Complaint
in state court against his former employer. The Defendant
removed the matter to federal court on grounds that the
Plaintiff's Complaint contained a claim under the FMLA,
29 U.S.C. § 2601, et seq. In addition to
invoking federal question jurisdiction pursuant to 28 U.S.C.
§ 1331, the Defendant asserted that any remaining state
law claims were removable pursuant to 28 U.S.C. §
August 17, 2017, the Defendant filed its Motion for Summary
Judgment, requesting that the Court enter judgment in its
favor as a matter of law. On this same date, the Defendant
filed a Notice of Summary Judgment Motion [ECF No. 25],
advising the Plaintiff of the implications of the Motion, his
response obligations, and the consequences of failing to read
and carefully follow Federal Rule of Civil Procedure 56 and
Northern District of Indiana Local Rule 56-1. The Plaintiff
has not filed a response to the Defendant's Motion for
Summary Judgment, or asked for any extensions of time to do
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Summary judgment is the moment in
litigation where the non-moving party is required to marshal
and present the court with evidence on which a reasonable
jury could rely to find in his favor. Goodman v.
Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir.
2010). “To survive summary judgment, the nonmoving
party must show evidence sufficient to establish every
element that is essential to its claim and for which it will
bear the burden of proof at trial.” Diedrich v.
Ocwen Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir.
2016) (first quoting Life Plans, Inc. v. Sec. Life of
Denver Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015); then
citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986)). To determine whether a genuine dispute of
material fact exists, the Court must construe all facts in
the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. See
Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
This does not extend to inferences that are “supported
by only speculation or conjecture, ” Williams v.
Brooks, 809 F.3d 936, 944 (7th Cir. 2016) (quoting
Argyropoulos v. City of Alton, 539 F.3d 724, 732
(7th Cir. 2008)), and “[c]onclusory allegations alone
cannot defeat a motion for summary judgment, ”
Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d
890, 892-93 (7th Cir. 2003).
summary judgment stage, the Court does not consider an
assertion of fact unless it is supported by “particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials.” Fed.R.Civ.P. 56(c). If a party
“fails to properly address another party's
assertion of fact as required by Rule 56(c), the court may .
. . consider the fact undisputed for purposes of the
motion.” Fed.R.Civ.P. 56(e). Finally, material facts
are those that are outcome determinative under the applicable
law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir.
Defendant is a manufacturer of popcorn products with a
production facility in Van Buren, Indiana. In June 2012, the
Defendant hired the Plaintiff as a machine operator.
to the Defendant's Attendance Policy, which was provided
to the Plaintiff as part of the Associate Handbook, an
employee will receive a written warning #1 if the employee
has, in a rolling six month period, either (1) three
unexcused tardies, late arrivals, and/or leave earlies, or
(2) two unexcused absences. Another unexcused absence, late
arrival, or leave early within ninety days of earning the
written warning #1 will result in a written warning #2.
Another unexcused absence, late arrival, or leave early
within a ninety day period after earning a written warning #2
results in termination of employment. Approved FMLA absences
are excused absences under the Attendance Policy.
around 2:45 p.m. on May 22, 2014, the Plaintiff's lanyard
with retractable cord caught on a stationary ladder that he
was hurriedly passing. It caused him to fall, and the
Plaintiff heard a pop in his back. During his break, the
Plaintiff went to his car, took a couple of over-the-counter
pain relievers, and finished the remainder of his shift,
which ended at 4:45 p.m. He was not able to sleep that night
and arrived late to work the next day, May 23. That day, the
Plaintiff was issued a written warning #1, with an effective
date of May 9, 2014, which stated that the Plaintiff had
unexcused absences on March 4, March 5, and March 28, 2014.
The March 4 and 5 absences were counted as one occurrence.
Because the Plaintiff was late to work on May 23, he was also
issued a written warning #2. The listed absences were the
same absences from the warning #1 plus a partial absence for
his late arrival on May 23. The Plaintiff complained about
being issued both his written warning #1 and written warning
#2 on the same date, May 23, even though the first one had an
effective date of May 9.
to the Defendant's written work-related injury policy,
employees must “immediately” report any
“work-related accident . . . no matter how small”
to the employee's team leader. (Ex. 6 to Robey Dep., ECF
No. 24-1 at 29.) The Plaintiff did not report his accident to
any management representative either when it occurred, or
during the remaining two hours of his shift. Instead, the
Plaintiff reported the injury by sending a text message to
the Defendant's Safety Manager, Dudley Berthold, that was
time stamped 5:40 p.m. That evening, he also sent a text
message to his supervisor, Team Leader Corey Watson. On May
23, the Defendant suspended the Plaintiff pending further
investigation into why he did not timely report his accident
as required by the Defendant's policy. The suspension was
in place until May 27, 2014.
27, the Plaintiff was seen at RediMed, the Defendant's
worker's compensation medical provider. Dr. Julie Stark
cleared the Plaintiff to return to work that day. The
Defendant made three attempts to contact the Plaintiff to
advise him that he was still employed and to arrange for his
return to work on May 28. The Plaintiff did not agree with
Doctor Stark's assessment, and he did not go to work on
May 28. Instead, he contacted Jenna Valentine in the
Defendant's Human Resources department through text
message, indicating that he did not agree with ...