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Baird v. Progress Rail Manufacturing

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

May 21, 2019



          Hon. William T. Lawrence, Senior Judge

         This cause is before the Court on the Defendant's motion for summary judgment (Dkt. No. 42). The motion is fully briefed and the Court, being duly advised, GRANTS IN PART AND DENIES IN PART the motion for the reasons set forth below.


         Federal Rule of Civil Procedure 56(a) provides that 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.” In ruling on a motion for summary judgment, the properly supported facts asserted by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.”). However, a party who bears the burden of proof on a particular issue may not rest on his pleadings, but must show what evidence he has that there is a genuine issue of material fact that requires trial. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). The non-moving party bears the burden of specifically identifying the relevant evidence of record, and “the court is not required to scour the record in search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001). Therefore, with regard to each of the Plaintiff's claims, the Court has considered the evidence of record that the Plaintiff, as the non-moving party, points to in his brief as supporting his arguments with regard to that claim. Burton v. Bd. of Regents of Univ. of Wisconsin Sys., 851 F.3d 690, 695 (7th Cir. 2017) (“‘It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered.'” (quoting Liberles v. Cook Cty., 709 F.2d 1122, 1126 (7th Cir. 1983)).


         The relevant facts of record, viewed in the light most favorable to the Plaintiff, as the non-moving party, are as follow. The parties include-and dispute-many additional facts that are not relevant to the Court's disposition of the instant motion and therefore are not included herein.[1] This includes many facts proffered by the Defendant that are not consistent with the Plaintiff's facts. These are not relevant to the summary judgment discussion because, at the summary judgment stage, “[p]laintiffs are entitled to the benefit of any admissible evidence favoring their claims and conflicts in the evidence, as well as reasonable inferences favorable to their claims.” Edwards v. Jolliff-Blake, 907 F.3d 1052, 1063-64 (7th Cir. 2018); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (A “judge's function” on summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”). The Defendant essentially urges the Court to weigh the evidence as to several of the facts asserted by the Plaintiff, which, of course, the Court may not do on summary judgment.

         Plaintiff Dewayne Baird is a combat veteran who has permanent damage to his spine and neck due to an injury he sustained while serving in the Navy. Baird was hired by Defendant Progress Rail Manufacturing (“Progress Rail”) as a welder in December 2013. He identified himself as a disabled veteran when he applied for the job. He was interviewed and promoted to Test Technician on January 26, 2015, by Test Department Manager Brian DeWitt and Test Department Supervisor Josh Hiday. Hiday and DeWitt, who became Baird's supervisors, were aware of Baird's veteran status. In addition to promoting him to Test Technician, DeWitt and Hiday awarded Baird several raises during his tenure at Progress Rail.

         Baird continued to require treatment for his injury after he began working for Progress Rail. He requested and was granted intermittent FMLA leave each year from 2014 through 2017. Baird took FMLA leave for medical appointments in 2014, 2015, and 2016. Progress Rail's records indicate that Baird took FMLA leave during the pay periods ending October 9, 2016; October 23, 2016; and December 25, 2016.[2] Baird was not denied any FMLA leave that he requested. However, in 2015, Dewitt and Hiday “strongly advised” Baird not to use FMLA leave because he could be “scrutinized” for doing so. Dkt. No. 46-1 at 162. Hiday told Baird that “[w]e're cracking down on FMLA” and that Baird “could still get an occurrence for” using it, meaning that he could still accrue points under the company's attendance policy for using FMLA leave, even though FMLA leave was supposed to be exempt from points under the policy. Id. at 155. Because of this warning, there were a “couple of times” that Baird chose not to use FMLA leave when he otherwise would have. However, Baird never requested FMLA leave and had that request denied and was never actually penalized under the point system for using his FMLA leave.

         In March 2015, DeWitt counseled and coached Baird for being away from his work area too frequently, taking excessive smoke breaks, and failing to stay on task and develop knowledge. Baird does not believe that that coaching was related to FMLA or disability, as several other employees received coaching at the same time.

         While Baird worked in the Test Department, DeWitt and Hiday observed that Baird could not work independently, was difficult to train, was not efficient, and took 3-4 times as long as other Test Technicians to troubleshoot an issue, even those with the same amount of time on the job. As a result, Hiday assigned Baird to tasks that did not require troubleshooting, like moving locomotives. According to DeWitt, Baird “had a habit of not being where he needed to be and not learning what he needed to learn.” Coworkers complained that he was “always gone. He's never there. He's not really interested in learning the job.” Dkt. No. 44-5 at 23. As a result, no one wanted to work with him. Id. at 29.

         Tom Walsh, a test engineer in the Test Department who reported to Hiday, was involved in training Baird. He found Baird to be “very intelligent and a good, hard worker, ” who “responded well to training” and “showed an interest in his job and learning more about it.” Dkt. No. 46-7 at 1. In the spring of 2015, Walsh was summoned to a private meeting with Hiday and DeWitt, who asked Walsh to “create a record that Mr. Baird was trained on various tasks and procedures.” Walsh believed it was clear that he was being asked to “create a training record regarding Mr. Baird that would later be used to justify his termination and that Mr. Hiday's and Mr. Dewitt's intention was to find a way to terminate Mr. Baird's employment.” Id. at 1-2.[3]

         For several months in 2015, Baird and two other employees were “loaned out” to the cab assembly department. Hiday, who remained Baird's direct supervisor, observed that Baird was frequently “MIA”[4] when Hiday was in the Cab area. Cab supervisor Rob Heinrich and Baird's coworkers “corroborated that and other performance issues.” Dkt. No. 44-1 at 4. As a result, Hiday conducted a counseling session with Baird on September 14, 2015, in which he identified the following performance issues: “quality of work being performed”; “being found outside of work area”; “quantity of work being performed; and work ethic is poor (teamwork).” Dkt. No. 44-11 at 12.

         In 2015, Progress Rail implemented a new software platform for performance evaluations. In December 2015, Progress Rail held a meeting regarding the performance review process to advise supervisors how to complete their employees' 2015 evaluations. During the question and answer period at the end of the meeting, a new supervisor asked a question about how to handle the following hypothetical situation: when evaluating two employees, you determine that their performance was otherwise the same, but one of them is “here every day” and the other “is on FMLA and he's only been here 60 days. . . . You know, how do you evaluate that . . . and where do we evaluate that at?” on the performance evaluation form. Dkt. No. 46-6 at 121.[5] Ulrich answered the question; Roberts described her answer as follows:

I think it was more so in regards of you need to use that in consideration when looking at two different individuals, as in this guy adds up the same way this guy adds up, but this guy is here 90 percent of the time, this guy's only here 80 percent of the time.
So not-only not just because this guy is on FMLA, but the more thing they're going on is this guy's here 90 percent of the time. I'm going to pay a guy that's going to be here 90 percent of the time over a guy that's only going to be here 70 percent of the time for me.

Dkt. No. 46-6 at 122. In other words, Roberts interpreted Ulrich's answer as meaning that FMLA leave should be used as a consideration in completing employees' performance evaluations.

         Due to technical problems, the computer program was unavailable in January 2016 when supervisors completed their employees' performance reviews. Using a written form, Hiday, Baird's direct supervisor, evaluated each of his hourly employees, including Baird, in six categories, assigning ratings of “Did Not Meet Performance Expectations, ” “Expected Level of Performance, ” “Exceeded Performance Expectations, ” and “Superior Performance” for each category. Hiday ranked Baird as “Expected Level of Performance” in all categories except one. In the category labeled “Results- and Action-Oriented - Acts with sense of urgency, ” Hiday ranked Baird as Did Not Meet Performance Expectations and commented: “Dewayne can hardly improve if he continues neglecting opportunities in front of him. After a coaching session in September, Dewayne has made a complete turn around and is proving to be a great asset to the company.” Dkt. No. 44-11 at 9. Hiday gave his handwritten evaluations to DeWitt, who reviewed Hiday's recommendations in light of his own knowledge of and observation of Baird's skills and performance. DeWitt determined that, based on his performance rating, Baird should receive a 1% merit raise.[6] Finally, DeWitt met with Plant Manager Jim Rumpf, who reviewed the performance rating and gave his own input. At some point, the “expected level” rating for “quality and quantity of work” was changed to a rating of “Did Not Meet Performance Expectations.”[7] The comment under that category reads “Needs to work on attendance.” Id. at 10. Baird was given an overall rating of “Did Not Meet Performance Expectations”; that rating was determined by either DeWitt or Rumpf.

         On January 13, 2016, DeWitt met with Baird to present his performance evaluation. Baird expressed unhappiness with the overall ranking and with the handwritten “needs to work on attendance” note. Baird asked Dewitt “How am I expected to improve on my attendance when I only have 1 point for 12 months, two half occurrences?[8] I've got a perfect attendance record. It's just I had to leave early twice because I was sick.” Dkt. No. 44-1 at 29. DeWitt responded “You have FMLA, don't you? . . . [I]f you didn't have FMLA, your attendance would have more points, so therefore you need to work on your attendance.” Id. When Baird asked him “Are you joking? You have no other reason than because I have FMLA?” DeWitt answered that he did not. Id.

         The following day, Baird complained to HR Director Ulrich that his FMLA leave had been used against him on his performance review. Ulrich discussed Baird's concerns with DeWitt. DeWitt admitted that he had “referenced” Baird's use of FMLA during his meeting with Baird. DeWitt explained to Ulrich that the problem was that Baird was not “far enough along in his training to work independently” and that he “doesn't have as much training on the units as others that started with him because he isn't here as much.” Dkt. No. 44-7 at 23, 27. Ulrich's notes from her conversation with DeWitt contain the following: “[DeWitt] considers attendance to be all encompassing of time away from work not just occurrences [that cause points to be assessed under the progressive attendance policy]. [Baird] happens to be on FML which causes him to be away from work. He went on to say he has no idea why [Baird] has FML and doesn't care to know, he just knows he doesn't have as much time in training as his peers.” Id. at 28. Ulrich's notes further state: “In hindsight, [DeWitt] regrets mentioning anything about his FML, but insists it wasn't meant that he was holding it against [Baird]. He mentioned it as a reason why he doesn't have as much time training on the units, simply because he's not at work as often as his peers.” Id. at 30.

         Ulrich, DeWitt, and Baird met on January 18, 2016, to discuss Baird's complaint. DeWitt told Baird that when he mentioned FMLA during the performance review meeting, “we were talking about the time you trained on the units doing various operations. And you said I only had one occurrence. And I responded it's your overall absences, including your FML. You have had more time away from work than others, which has impacted your training time.” Dkt. No. 44-5 at 30.

         Following Baird's complaint that his FMLA leave was used against him, DeWitt assigned what Baird characterized as “crappy jobs” to Baird, such as cleaning out pits after it rained.

         In July 2016, Baird complained to Rumpf about his 2015 ranking and raise being affected by his FMLA leave, and also complained that a newly hired Test Technician was making $26.50 per hour, which was more than Baird was making. The decision was made that all of the Test Technicians who had completed a training course at Ivy Tech would be given a pay increase to $26.50 per hour effective August 8, 2016, regardless of what their current rate of pay was. This included Baird.[9]

         Baird's employment with Progress Rail was terminated on January 26, 2017, for a “Blue Flag violation.” Progress Rail had safety rules and procedures relating to locomotives with blue flags; these were well-communicated to Baird and he understood them. A Blue Flag on a locomotive meant that the locomotive could not be moved or coupled to under any circumstances because a person could be working in or on it. Test Department employees were required to follow specific procedures before a blue flag could be removed and the locomotive could be moved. Because the failure to follow these procedures could result in serious injury or death, Blue Flag violations were terminable offenses.

         The incident that led to Baird's termination occurred on January 25, 2017. At the beginning of the shift, DeWitt told Baird to let another employee, Jacob Howard, handle the locomotive moves that day. Baird's role was to offer assistance and answer any questions that arose. Shortly thereafter, Baird instructed Howard and Damon Emilien, who was a contract employee, to move a locomotive indoors.[10] At least two employees are needed to move a locomotive; one to serve as the driver and the other to serve as the ground guide.[11] For the move in question, Howard was the driver and Emilien was the ground guide. Baird instructed Howard and Emilien to “inspect that unit, and after they inspected it, to hook the running unit up to it and bring it in.” While they did that, Baird went inside to retrieve derailer keys from DeWitt so that another employee, production supervisor Ronnie King, could unlock the derailer, which was a necessary step in moving the locomotive inside. Dkt. No. 44-1 at 59. Baird did not check the locomotive for blue flags himself; he left that to Howard and Emilien, who were going to conduct the move. Baird was inside for 20-30 minutes waiting for DeWitt to finish a telephone call and give him the keys. When Baird came back outside with the keys, the unit was in the process of being moved. There was a blue tarp on the locomotive, and Baird saw that the tarp was blowing in the wind in a dangerous manner, so he radioed for the locomotive to be stopped so the tarp could be secured. Dkt. No. 44-1 at 66. King instructed Emilien to hold one side of the tarp while King held the other, and Baird then acted as the ground guide for the remainder of the move, which was about ten feet into the building. Baird did not check for a blue flag at that point because the move was already in progress.

         King reported that the locomotive had been blue flagged when it was moved. Specifically, King went to DeWitt's office and told him that “[Baird] had just moved in a unit that was Blue Flagged.” Dkt. No. 44-5 at 37. Another employee, Scott Delaney, who was a Safety Committee Member, texted Safety Manager David Delong and told him that a unit with a blue flag on it had been moved inside. Delong called DeWitt to report the incident.

         DeWitt conducted an investigation of the incident, which included taking a statement from Baird later that day. Baird testified that his conversation with DeWitt went as follows:

I walked in, and the first thing that Brian DeWitt said-he goes, I was told that you brought a unit in that was under blue flag. And I said, no, sir, I did not. And he goes, well, did the 046 get brought in, the repower? I said yeah. It was brought in this morning. And he goes, well, who brought it in? I said, [Emilien] and [Howard]. That's who you told me, you know, to let them run the show. Since it was snowing, I was more than obliged to stay in the building. And he goes, was it blue flagged? I said, not to my knowledge. I never went out to the unit to look due to the fact it had been moved from where it was at the night before over to underneath the fueling station, so it should have been yellow flag.

Dkt. No. 44-1 at 66. In an Incident Witness Statement Form completed that day, Baird wrote:

I instructed Jake and Damon to hook [units #4 and unit #33] so we could bring it in. I did not notice it blue flagged. I was unlocking derailer for Ronnie King and clearing the line and changing flags. As unit came in the tarp was hanging up on fans . . . . Never double check[ed] the flags on #4.

Dkt. No. 44-2 at 60. DeWitt asked Baird not to include any additional information on the form. Emilien told DeWitt that the locomotive was not blue flagged when it was moved. DeWitt completed a Property Damage or Near Miss Investigation Report in which he stated:

While moving [a locomotive] inside to location 6C, the unit was coupled to and moved while under blue flag protection.
Dewayne Baird was the ground guy, prior to movement he left the area to retrieve derailer keys. Returned and gave the keys to Ronnie King. [Emilien] guided [Howard] (operating power unit) to the threshold of the building and stopped the movement. A large tarp covering [the locomotive] was blowing around and needed secured. Once the tarp was secured, Dewayne assumed the role of ground guy and continued to move into the building. Once in the building and at a stop, Ronnie King noticed that the unit was blue flagged.
Jacob Howard, the operator of the power unit was not in a position to see any blue flag ...

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