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Miller v. NTN Driveshaft, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

July 30, 2018

DUSTIN MILLER, Plaintiff,
v.
NTN DRIVESHAFT, INC., and JASON SHAKE, Defendants.

          ENTRY ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on a Motion for Partial Summary Judgment (Filing No. 27) filed by Defendants NTN Driveshaft, Inc., (“Driveshaft”) and Jason Shake (“Shake”) (collectively, the “Defendants”). Plaintiff Dustin Miller (“Miller”) alleges in his Complaint that he was terminated in violation of the Family and Medical Leave Act (“FMLA”) as well as state law claims for defamation and negligent supervision. (Filing No. 1.) For the reasons that follow, the Court grants in part and denies in part the Defendants' Motion for Partial Summary Judgment.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Miller as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Miller began working at Driveshaft on September 6, 2011. (Filing No. 29-2 at 15.) He was promoted to set-up technician on June 13, 2015, and at the time of his termination Miller was a set-up technician. (Filing No. 29-2 at 130.) Set-up technicians are responsible for catching cautionary red lights on the machines and changing over lines to get the machines back into production. Id. at 29. It is undisputed that changeovers are high-priority tasks because production is stopped during a changeover and the changeover should be completed as quickly as possible. Id. at 31-32. For the lines on which Miller was tasked with changeovers, the expected changeover pace was as follows: the CG (clip groove line) - 90 minutes start to finish; and the TJ2 and BJ2 lines (the grinder lines) - 120 minutes start to finish. (Filing No. 29-2 at 143.)

         Miller received various disciplinary warnings throughout his tenure as a set-up technician. On September 22, 2015, his supervisor, Shake, rated Miller as “Partially Meets Expectations” in four categories “Quality, Job Knowledge, Initiative/KAIZEN, and Safety, Health 5S's”. Shake reported that Miller was “doing a good job he needs to push to learn all the lines and cut his c/o times in half.” Id. at 131. On January 28, 2016, Miller received a verbal warning for an attendance issue. Id. at 135. On March 28, 2016, he received a verbal warning for not clocking in or out on March 10, 11, and 21, 2018. Id. at 137.

         On April 4, 2016, Miller's vision became blurry and his left eye started to swell shut. He reported a workplace injury to Shake when his face started to swell and stated that he had been struck in the face by a loader earlier that day. (Filing No. 29-2 at 53.) Shake directed Miller to leave to take a urinary drug screen, which came back negative. Id. (Filing No. 32 at 1.) Miller then left work to go to the emergency room and was diagnosed with cellulitis of the face. (Filing No. 33-1 at 7.) A healthcare provider, Physician Assistant Jared Brock (“Brock”), certified Miller for absence under the FMLA from April 5 through April 26, 2016, to cover his hospitalization and recovery. Id. Miller alleges that his co-worker, Adam Lilak (“Lilak”) telephoned Miller's father while Miller was in the hospital, to warn him that he had been removed from the schedule and replaced with someone from third shift, indicating that Miller had been fired. (Filing No. 33-2 at 10.) Lilak testified that he informed either Human Resources, Kathy Littleton (“Littleton”) or Miller's father to “get a hold of somebody” regarding Miller's hospitalization. Id.

         Miller made multiple telephone calls to Littleton to have Shake's alleged attempt to terminate him reversed and complained to Littleton that firing him while he was off work on FMLA leave was a form of harassment. (Filing No. 33-1 at 2.) On April 21, 2016, Miller was treated at Columbus Regional Hospital and diagnosed with facial abscess and a methicillin-resistant staphylococcus aureus (“MRSA”) infection. Id. at 15. Miller returned to work on April 27, 2018. (Filing No. 37-2 at 2.)

         Following his return to work, Miller received additional disciplinary warnings. On May 13, 2016, he received a written warning for going on a break before getting a line back up and running. (Filing No. 29-2 at 139.) On June 20, 2016, he was placed on a sixty-day performance improvement plan. Id. at 143. Areas of concern listed the following: “change over times, trouble shooting skills, and break times/not staying in the department.” Id. On July 31, 2016, while on the performance improvement plan, Miller received a written warning for a quality issue due to line checks not being completed on time. Id. at 152.

         In August 2016, Miller's doctor certified a second FMLA leave from August 8 through 16, 2016. (Filing No. 33-1 at 17.) His physician suspected that the MRSA bacteria was penetrating Miller's skin through damage caused by industrial solvents used in the machinery Miller operated at Driveshaft. The certification stated that Miller would also require intermittent leave, one time a month, five days per episode because the MRSA would occasionally flare up. Id. (Filing No. 29-2 at 155.) To prevent the MRSA from rapidly spreading which would require hospitalization, Miller needed to promptly apply antibacterial ointment and bandage his wound when the MRSA started to flare up. (Filing No. 29-2 at 56.)

         On September 23, 2016, Miller had been at work for approximately an hour when he began to experience pain on his forearms, which he recognized as the symptoms of MRSA. (Filing No. 33-3 at 3.) Lilak also observed Miller's arms and testified that “it looked like MRSA, pimpled up sores and whatnot.” (Filing No. 33-2 at 11.) Because Miller only had a small amount of antibacterial ointment with him, he told Shake he could only work a half day so that he could go home and get more ointment and bandages. (Filing No. 29-2 at 86.) When Miller told Shake about the MRSA flare up, Shake responded with a pretend cough and told Miller he was taking too much sick time. (Filing No. 33-1 at 3.) Miller resumed working at his line, however, his outbreak and the pain worsened. Id. Miller told another set-up technician, Mazio Mack (“Mack”), that he was going to the locker room to bandage the MRSA area. (Filing No. 33-3 at 5 at 5.) Mack testified that Miller showed him his forearms which looked irritated, and the last he saw of Miller was when Miller headed to the locker room to change his bandage. Id.

         In the locker room, Miller removed his shirt, applied the topical ointment, and bandaged the wound with gauze and non-stick tape, before returning to his line. (Filing No. 33-3 at 3.) Shortly after returning to the line, Shake and a woman from Human Resources came to Miller's area and told him to follow them to the office. Id. Shake told Miller that he was terminated for taking too long on breaks. (Filing No. 29-2 at 90.) At the time of Miller's termination, he was not under a final warning status or any type of disciplinary probation such as the performance improvement plan. (Filing No. 33-4 at 3.) Lilak testified that after Miller was escorted off the premises, Shake told Lilak and another employee that “Dustin did not have MRSA, he had the clap.” (Filing No. 33-2 at 12.)

         After his termination, Miller went home and applied more ointment and scheduled a doctor's appointment at his doctor's earliest convenience. (Filing No. 33-1 at 3.) Miller's doctor's appointment was scheduled three days after his termination, on September 27, 2016. Brock diagnosed Miller with cellulitis on his arms and prescribed additional antibiotics. (Filing No. 33- 1 at 19.) Miller secured employment with Sacoma from the end of February 2017 to late August 2017, when he was terminated for attendance issues (Filing No. 29-2 at 110; see Filing No. 29-2 at 160). In December 2017, Miller began working as a driver for his father, who contracts with the United States Postal Service to deliver mail. (Filing No. 33-1 at 4.)

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party's favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Indeed, a court may not make credibility determinations, weigh the evidence, or decide ...


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