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Reese v. Zimmer Production Inc.

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

September 20, 2018

DARIAN REESE, Plaintiff,
v.
ZIMMER PRODUCTION, INC. a/k/a ZIMMER BIOMET, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT CHIEF JUDGE

         This litigation arises out of Plaintiff Darian Reese's termination of employment with Defendant Zimmer Production, Inc. The Plaintiff claims that the Defendant violated the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) when it assigned him attendance points for absences that, he contends, should have been designated as FMLA-qualifying leave, or provided as a reasonable accommodation under the ADA.

         The Defendant has moved for summary judgment, which the Plaintiff opposes with respect to the two claims he is still pursuing: the FMLA interference claim and ADA failure to accommodate claim. The Plaintiff does not dispute the entry of summary judgment for the ADA discrimination or retaliation claims raised in his Complaint. For the reasons stated in this Opinion and Order, the Court grants the Defendant's Motion for Summary Judgment [ECF No. 29].

         STATEMENT OF FACTS

         The Plaintiff was a production worker at the Defendant's facility from October 2008 through October 14, 2015. The Defendant has policies governing employee attendance and the taking of FMLA leave. The policies are available to employees on the Defendant's intranet site, which can be accessed through in-house computers.

         The attendance policy tells employees that they are responsible to report all absences and tardies to their supervisor. The policy uses a point system for absences that leads to progressive discipline. Absences of more than four hours are counted as 4 points; tardies are counted as 2. The accumulation of 12 points in a rolling six-month period results in a written warning, another 12 points in six months results in a Final Warning, and 12 additional points results in termination from employment.

         When the employee provides medical documentation substantiating the absence, the point-tallying system is modified. Absences up to, but fewer than, four consecutive days (with appropriate medical documentation) count as only one absence for purposes of assigning points (i.e. 4 attendance points). A fourth consecutive day of absence counts as an additional absence, and each consecutive day afterwards counts as an additional absence. For example, an employee who misses five consecutive working days will incur three full-day absences, or 12 points-unless the employee receives authorization for FMLA or short-term disability (STD) leave. Approved FMLA and STD leave, as well as sick time taken in accordance with the Defendant's sick time policy[1] do not count toward disciplinary action. The attendance policy directs employees to contact the Defendant's third party administrator for further information on the FMLA policy or disability benefits program.

         The Defendant's FMLA policy requires that its employees provide notice both to the Defendant and to its third party FMLA administrator, Unum. If the need for leave is known in advance, an employee must notify Unum at least thirty days in advance. If the need for leave is not known in advance, the notice must be provided within two business days of realizing the need for leave, absent proven extenuating circumstances that prevented timely notice. For intermittent FMLA leave, if advance notice is not possible, employees must notify Unum within two business days from the absence. Employees are warned that failure to provide timely notice to both their supervisor and Unum may result in full or partial denial of approved leave and consequences under the attendance policy.

         While working for the Defendant, the Plaintiff took approved FMLA leave in 2011 and again in 2014. In 2011, the Defendant requested and received continuous FMLA leave for a hernia repair. When the leave was approved, and later extended, he received and read two letters from Unum, each which reiterated the two-day notice requirement. The Plaintiff also requested and received intermittent FMLA leave in 2014 for migraines. He provided notice to Unum on June 16 for his June 14 leave. When the leave was approved, he received and read two letters from Unum, each which included the identical reminders about the two-day notice requirement for reporting new and intermittent FMLA leaves. The Plaintiff understood that to request the intermittent leave, he had to call both Unum and his employer. (Pl.'s Dep. 72, ECF No. 30-2.)

         The Plaintiff was denied FMLA coverage for absences on two days in June 2014 and again for a day in July 2014 due to his failure to notify Unum within two days of those absences. The letters he received from Unum warned about the timely reporting of absences in accordance with his employer's policy.

         The Plaintiff was absent from work from July 27[2] through August 4, 2015, during which time he attempted to determine what was causing a severe rash on his arm, as well as swelling in his legs and feet. He visited the emergency room, his family doctor, and his cardiologist. Ultimately, the Plaintiff was diagnosed with Urticaria (hives) and dermatitis, which the Plaintiff described as severe eczema. The resulting infection was treated with two weeks of antibiotics and steroids. The Plaintiff continued to use topical steroids to treat flare-ups of the condition. In mid or late August, the Plaintiff cardiologist diagnosed him with venous insufficiency and prescribed medication to help control the swelling.

         In accordance with the Defendant's attendance policy, the Plaintiff called the Defendant to report these absences. The Plaintiff's second-shift supervisor was Ed Semla. The Plaintiff also reported to Dustin Dulebohn, the first-shift supervisor who had authority over Semla, but the record does not indicate which of these supervisors the Plaintiff called, if either. When the Plaintiff returned to work on August 5, Dulebohn asked the Plaintiff if he had called Unum. The Plaintiff replied that he had not, and Dulebohn advised him to do so as soon as possible.

         The Plaintiff testified that he called Unum the next day, on August 6, to request FMLA coverage for the absences. Unum's business records show that the Plaintiff called on August 10 to request FMLA leave for July 25 through August 4, 2015. On August 11, 2015, the Plaintiff received and read a letter from Unum stating that his August 10 request for FMLA leave was not approved because he had not reported his need for leave within the time frame required by the Defendant. According to Unum, the Plaintiff also had a request for STD leave, which was still pending. The Plaintiff was again absent from work from August 13 through 19, 2015, returning on August 20, then again from August 24 through 28, 2015.

         In late September and into October, the Defendant attempted to determine the status of the Plaintiff's absences, particularly when he did not qualify for STD leave. The Plaintiff had accumulated more than enough points to warrant a Final Written Warning and termination unless his absences qualified as FMLA or STD leave. On October 2, 2015, the Defendant suspended the Plaintiff from employment pending its investigation into his absences and the accumulation of points under the attendance policy. The timeliness of the Plaintiff's notice to Unum became an issue in making this determination. Unum had not granted FMLA approval for any of the absences due to the Plaintiff's failure to report the absences within the Defendant's two-day notice requirement. During the investigation, Unum informed the Defendant that the Plaintiff called Unum on August 10 regarding the July 27 through August 4 absences, and that he called Unum's STD Unit on September 21 for the August 14 through 18 absences. Unum did not consider the Plaintiff's assertion that he was not aware of the requirement to provide notice within two days of his absences as an extenuating circumstance that excused his failure to provide the proper notice.

         The Plaintiff's employment was terminated effective October 13, 2015, due to the accumulation of points under the attendance policy. Olga Rivera, the Human Resource manager at the foundry, made the termination decision in reliance on Unum's report that the Defendant did not follow the Defendant's notice requirement for his July and August absences, and her conclusion that ...


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