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Robey v. Weaver Popcorn Company Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

October 11, 2017

LANCE B. ROBEY, Plaintiff,



         The 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.


         On June 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. § 1441(c).

         On 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 so.


         Summary 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).

         At the 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. 1997).


         The 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.

         According 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.

         At 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.[1]

         According 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.

         On May 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 ...

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