Jones v. McKee Foods Corporation

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

. FAYETTEVILLE DIVISION

BLAKE JONES PLAINTIFF

v. CASE NO. 5:17-CV-5147

MCKEE FOODS CORPORATION DEFENDANT

MEMORANDUM OPINION AND ORDER

Currently before the Court is a Motion for Summary Judgment (Doc. 20) filed by

Defendant McKee Foods Corporation (“McKee”). Plaintiff Blake Jones has filed a

Response in Opposition (Doc. 23). For the reasons explained herein, the Motion for

Summary Judgment is GRANTED.

|. BACKGROUND

Blake Jones began working for McKee as a temporary employee in December of

2012. In July of 2013, he was hired as an official McKee employee to work in the

Environmental Services Department as a janitor. He ultimately transitioned into working

asa load team member, initially on second shift but eventually on third shift.1

On September 17, 2016, Jones applied for intermittent Family and Medical Leave

Act (“FMLA”) leave. McKee granted this request, and his leave period was approved

retroactively to August 17, 2016. Jones’ leave was scheduled to run for a period of six

months, at which point he would need to seek re-certification. Jones began taking FMLA

leave on an intermittent basis—as he deemed necessary for his underlying medical needs

However, individual FMLA absences within the approved intermittent window required

1 At McKee, third shift runs from 10:30 p.m. until 6:30 a.m. (Doc. 23-3, p. 5).

notice and documentation. According to the evidence in the record, McKee corporate

policy required employees taking FMLA leave to: 1) call their supervisor, 2) call the

Medical Leave Clerk, and 3) call the FMLA line to report details of their absence from the

job. Otherwise, any absences would not be considered “FMLA leave.” (Doc. 20-3, p. 2). □

—tThe January 3rd Leave—

In the middle of his overnight shift on January 3, 2017, Jones told another McKee

employee, Dallas Cheeks,” that he was ill and planned to leave his shift early. However,

he did not leave immediately because Jackie Smithson, a shift clerk, informed Jones that

there was an important shipment that had to be out by a certain time and asked him

whether he could finish the last few cases left to complete the trailer-load. (Doc. 23-2, p.

10). Jones agreed to do so. After he finished the trailer, Jones then went by the nurse's

station to document his FMLA leave, but left without speaking to the nurse when he saw

the number of people waiting to see her. Nor did Jones tell Jason Nichols, his direct

supervisor, that he was taking leave. Jones does believe that he called the FMLA line to

report leaving early. A month later, on February 7, 2017, Jones received a First Written

Counseling (Step 1)? for leaving early on January 3rd without notifying a supervisor. Jones

stated in his deposition that he believed that McKee also charged him with an “attendance

point” for taking FMLA leave on January 3rd, but the McKee Attendance Points printout

for him shows that he received no attendance points in connection with this event. (Doc.

20-6, p. 2).

2 Jones contends that he was instructed that Cheeks was to be respected and that his

direct supervisor, Jason Nichols, told him that Cheeks had the same authority as

Nichols. Nichols disputes this.

3 McKee policy establishes four levels of disciplinary action, with a Step Four being the

highest level (Suspension and possible Termination).

—Leaving Company Property Without Permission—

On February 2, 2017, unbeknownst to Jones, another McKee employee, Kelby

Jones, reported to the shipping coordinator, Ronnie Hendrickson, that he saw Jones off

of company property during his shift. Because McKee shipping department employees

don’t clock in and out for breaks or for lunch, they are required to remain on company

property for the duration of their shift—unless they clock out. Intentionally being off

company property on company time is considered “intentionally defrauding the company.”

See Doc. 20-9, p. 2. This report was passed to Gary Ruebush, McKee HR Business

Partner, and Bob Tharp, McKee Shipping Superintendent, who allegedly decided to

investigate the matter themselves.*

On the morning of February 7, 2017, Tharp and Ruebush arrived at the McKee

plant early so that they would have a vantage point of the parking lot and any employees

who were exiting the building. At around 2:10 a.m., they reported observing Jones leave

the building, get into his car (a red Hummer), and then drive off company property.

Ruebush then left Tharp, got into his car, and drove off the lot to confirm that it was Jones

who was driving in the car. It is not clear from the record whether Ruebush was successful

in confirming Jones’ identity. Nevertheless, once back at McKee, Ruebush pulled the log

that shows when employees swipe their badges to get in and out of the building. From

these logs, Ruebush was able to determine that Jones had swiped in and out of the

4 The McKee nomenclature is a bit confusing. But, it appears that the hierarchy is as

follows: Jones reported directly to Jason Nichols, who reported to Bob Tharp. Ruebush

is the HR Business Partner assigned to that department, so he and Tharp are colleagues.

They both in turn report to Melissa Smith, the HR Manager.

- building around the same time he and Tharp observed Jones leave the property, and

further confirmed that Jones had not clocked out.

Because Jones’ actions were considered by Tharp and Ruebush to be serious

misconduct (i.e. defrauding the company), the decision was made to suspend him. On

February 12, 2017, Ruebush and Nichols met with Jones to inform him that he was

receiving a Suspension (Step Four). Pursuant to McKee policy, employees who are

suspended are entitled to a suspension interview, where McKee officers interview the

employee to get his/her side of the story. Then, the company convenes a suspension

committee, which is composed of the employee’s direct supervisor, the superintendent,

the department manager, the HR business partner, and the HR manager. During the

suspension hearing, the committee discusses the reasons for the suspension, hears the

employee's story, and then ultimately votes whether to release, retain, or transfer the

employee. (Doc. 21, p. 5).

During the February 17, 2017 suspension review meeting, Jones insisted that he

did not recall ever leaving company property while on the clock and asserted that he had

not driven his red Hummer that night. In other words, Jones’ statement to the suspension

committee was completely at odds with the two eyewitness accounts that had resulted in

his suspension. The committee® unanimously decided to terminate Jones’ employment

with McKee.

5 The Committee consisted of Melissa Smith (HR Manager), HR Business Partner (Gary

Ruebush), Department Manager (Philip Cameron), Superintendent (Bob Tharp), and the

employee’s Direct Supervisor (Jason Nichols). It should be noted that the Department

Manager for Jones’ department was actually Greg Sutherland, but Philip Cameron, the

manager of the Engineering Department, filled in.

—After-Acquired Evidence—

Separate and apart from this investigation, officials with McKee apparently had

also begun to investigate Jones for a number of other reasons. Three in particular bear

upon the arguments made at summary judgment. The first was an investigation into the

possible falsification of certain records that Jones submitted in conjunction with his FMLA

paperwork that said that he had experienced trauma in the military. According to certain

other of McKee Foods’ records, Jones had no history of military service. (Doc. 23-4, p.

6). The second was an investigation prompted by other employees’ complaints that Jones

was misusing FMLA leave. Finally, a few days before Jones was terminated for leaving

company property without clocking out, Gary Ruebush had started an investigation over

complaints by Jones’ coworkers that he was making improper comments, including

allegedly telling one coworker that he was about to leave to go take FMLA leave but that

he shouldn't worry because Jones would be done with that coworker’s wife before he got

home. McKee argues that, to the extent any of Jones’ claims survive summary judgment,

the evidence revealed by this investigation would limit his recovery under the after-

acquired evidence doctrine because Jones would have been terminated shortly thereafter

for these inappropriate comments.

—Jones’ Allegations of Harassment—

In the midst of these incidents and investigations, Jones alleges that he

experienced harassment and discrimination at the hands of fellow employees, who were

upset that his missing work would increase their workloads. He alleges that numerous

coworkers made derogatory comments about him frequently taking off. He also contends

that his supervisor Jason Nichols would ask him questions about his attitude and would

sometimes comment that he didn’t look sick when Jones would ask to take his leave. It is

undisputed that McKee had knowledge of various complaints that Jones had made

regarding these comments. While it appears that no formal investigation of these

incidents was ever undertaken by McKee, Nichols did, however, hold a formal staff

meeting with his crew, explaining to them the importance of FMLA leave and the fact that

Jones was protected under federal law. (Doc. 20-4, p. 11).

Jones filed the instant lawsuit against McKee on August 2, 2017. He contends that

he was discriminated and retaliated against for taking FMLA leave. In particular, he

contends that he was treated differently (i.e. terminated) from other similarly situated

employees who violated the same policy, and that the reason why he was terminated and

they were not is because of the added strains on the department caused by his FMLA

leave.®

ll. LEGAL STANDARD

The standard for summary judgment is well established. Under Federal Rule of

Civil Procedure 56(a), “[t]he court shall grant summary judgment 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.” The Court must review the facts in the light most favorable to the

6 He also initially asserted a claim for wrongful discharge under Arkansas law. Jones

claims that he made an anonymous complaint to the Occupational Safety and Health

Administration (“OSHA”) about alleged safety violations at McKee. During his suspension

hearing, Jones told the committee that he was the one who made the complaint. He

contended that his firing at the conclusion of that meeting was sufficient to establish a

claim for wrongful termination in violation of Arkansas public policy. However, Jones’

counsel informed the Court via email on February 26 that he was no longer pursuing this

claim. The Court has construed this communication as a motion for voluntary dismissal

of that claim. Therefore, under Federal Rule of Civil Procedure 41(a)(2), Jones’ claim for

wrongful termination in violation of Arkansas law is DISMISSED WITHOUT PREJUDICE.

opposing party and give that party the benefit of any inferences that can be drawn from

those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1997). The

moving party bears the burden of proving the absence of a genuine dispute of material

fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'l.

Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).

Once the moving party has met its burden, the non-moving party must “come

forward with ‘specific facts showing that there is a genuine issue for trial.” Matsushita,

475 U.S. at 587 (quoting Fed. R. Civ. P. 56(c)). However, “the mere existence of a scintilla

of evidence in support of the plaintiff's position will be insufficient’ to survive summary □

judgment. Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Rather, in order for there to

be a genuine issue of material fact that would preclude summary judgment, the non-

moving party must produce evidence “such that a reasonable jury could return a verdict □

for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To meet its burden,

“It]he nonmoving party must do more than rely on allegations or denials in the pleadings,

and the court should grant summary judgment if any essential element of the prima facie

case is not supported by specific facts sufficient to raise a genuine issue for trial.”

Register v. Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Moreover, “[w]hen opposing

parties tell two different stories, one of which is blatantly contradicted by the record, so

that no reasonable jury could believe it, a Court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scoft v. Harris, 550 U.S. 372,

380 (2007).

lil. DISCUSSION

In general, employees who meet certain statutory requirements are entitled under

the FMLA to take twelve weeks of leave from work during any twelve-month period. 29

U.S.C. § 2612(a)(1). In addition to guaranteeing these benefits, the FMLA also prohibits

two broad categories of employer conduct. Section 2615(a)(1) makes it unlawful “for any

employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any

right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). It also makes it unlawful

for an employer to “discharge or in any other manner discriminate against any individual

for opposing any practice made unlawful” under the FMLA. 29 U.S.C. § 2615(a)(2). In

light of these two sections, the Eighth Circuit has recognized three types of FMLA claims:

entitlement claims, retaliation claims, and discrimination claims. See, e.g., Pulezinski v.

Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012). Because Jones did not

specify which of these three subsets of FMLA claims he is pursuing,’ the Court will

consider each type of claim.

A. FMLA Entitlement Claim

Under 29 U.S.C. 2615(a)(1), an FMLA entitlement claim “occurs where an

employer refuses to authorize leave under the FMLA or takes other action to avoid

responsibilities under the Act.” Pulczinski, 691 F.3d at 1005.

7 The Complaint (Doc. 1) uses the words “retaliation” and “discrimination” several times

throughout. As such, the Court assumes that Jones is primarily advancing FMLA

retaliation and FMLA discrimination claims. Out of an abundance of caution, however,

McKee has briefed all three types of claims, and the Court will follow suit.

The undisputed facts in the record establish that McKee never once refused to

authorize Jones to take FMLA leave. Indeed, Jones himself testified during his deposition

that the only incident he could recall that might potentially qualify under this prong was

‘ his belief that McKee assessed him an “Attendance Point” for the incident recounted

above that occurred on January 3. (Doc. 23-2, p. 6). Other than that, he testified that he

could recall no other instance where McKee ever denied him leave under the Act or

attempted to avoid responsibilities under the Act (here—denying him the leave time). See

id.

Jones’ testimony about the incident on January 3rd is insufficient to sustain an

FMLA entitlement claim. First, as the Court noted above, despite his belief that he might

have received an attendance point as a result of the event on the 3rd, the McKee

Attendance Point sheet summary for him shows that the incident wasn’t even reported as

an “incident” that could potentially have gained Jones a point. (Doc. 20-6, p. 2). There

certainly is no evidence in the record—beyond mere speculation—that a point was ever

awarded for Jones’ use of FMLA leave on that day. In fact, the record evidence squarely

contradicts this speculation. Second, the law is well established that an FMLA entitlement.

claim will not lie “unless the employee has been prejudiced by the violation.” Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). Jones’ deposition testimony clearly

establishes that McKee granted him FMLA leave every time he asked for it—including on

the day of January 3rd. Because Jones has not demonstrated that McKee ever denied

him the benefits he was entitled to under the FMLA, any FMLA entitlement claim fails. To

the extent that Jones’ Complaint advanced such a claim against McKee, it is DISMISSED

WITH PREJUDICE.

B. FMLA Discrimination and Retaliation Claims

Under 29 U.S.C. § 2615(a)(2), a FMLA retaliation claim occurs when an employer

takes some adverse action against an employee after that employee complains about or

opposes a practice made unlawful by the Act. Pulczinski, 691 F.3d at 1006. An FMLA

discrimination claim, on the other hand, “arises when an employer takes adverse action

against an employee because the employee exercises rights to which he is entitled under

the FMLA.” id.

Because these two claims, unlike an FMLA entitlement claim, have at their core

the notion that an employer has discriminated in some way against an employee because

they were taking FMLA leave, they require evidence that the employer acted with

discriminatory intent. Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013). As

such, for both of these claims, a court first looks to see whether the plaintiff has pointed

to direct evidence of this kind of discrimination. Absent direct evidence, both of these

claims are analyzed under the traditional McDonnell Douglas burden-shifting framework.

See, e.g., Sisk v. Picture People, inc., 669 F.3d 896, 899 (8th Cir. 2012) (explaining the

use of the McDonnell Douglas framework for FMLA retaliation claims); Hager v. Ark. Dep't

of Health, 735 F.3d 1009, 1015 (8th Cir. 2013) (explaining the similar process for FMLA

discrimination claims).

Under the burden-shifting framework used for both claims, a plaintiff must first

establish a prima facie case of discrimination or retaliation by “[showing] that [he]

exercised rights afforded by the Act, that [he] suffered an adverse employment action,

and that there was a causal connection between [his] exercise of rights and the adverse

employment action.” Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008) (quoting Smith

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v. Allen Health Sys., inc., 302 F.3d 827, 832 (8th Cir. 2002)). If he successfully makes out

a prima facie case, the burden then shifts to the employer to “articulate a legitimate,

nondiscriminatory reason for its challenged actions.” Stallings v. Hussmann Corp., 447

F.3d 1041, 1050 (8th Cir. 2006). “The employee may then demonstrate that the proffered

reason is pretextual, showing that ‘the employer's proffered explanation is unworthy of

credence’ or ‘persuading the court that a prohibited reason more likely motivated the

employer.” Hudson v. Tyson Fresh Meats, Inc., 787 F.3d 861, 867 (8th Cir. 2015) (quoting

Stallings, 447 F.3d at 1050).

Jones has not pointed to, and the Court has not found, any direct evidence of

McKee’s discriminatory intent in the record. Therefore, the Court will analyze these claims

under the McDonnell Douglas framework.

Here, even assuming that Jones stated a prima facie case of discrimination or

retaliation, his claims fail because McKee has advanced a legitimate, non-discriminatory

reason for terminating Jones, and Jones has not established that the proffered reason for

his termination is pretextual.

First, McKee has consistently asserted throughout this litigation that the sole

reason for Jones’ termination was his departure from company property on February 7th

without clocking out, which McKee policy considers to be defrauding the company. All of

the people deposed who participated in Jones’ suspension hearing (and who ultimately

made the unanimous decision to terminate him) testified at their depositions that Jones

being off company property while on company time was the sole reason for their vote to

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terminate his employment.’ They also testified that Jones’ FMLA status was never

discussed during the suspension meeting and therefore played no role in their decision.

Moreover, the undisputed evidence demonstrates that McKee policy considers being off

company property while on the clock to be a serious offense, akin to defrauding the

company. Therefore, McKee has established a legitimate, non-discriminatory reason for

Jones’ termination,? and Jones must now come forward with sufficient evidence that

demonstrates that this reason was mere pretext.

Unlike at the prima facie stage, an “employee’s attempt to prove pretext or actual

discrimination requires more substantial evidence, however, because unlike evidence

establishing the prima facie case, evidence of pretext and discrimination is viewed in light

of the employer's justification.” Sprenger v. Fed. Home Loan Bank of Des Moines, 253

F.3d 1106, 1111 (8th Cir. 2001).

In Jones’ Response to the Motion for Summary Judgment, he contends that there

is evidence demonstrating that McKee’s asserted justification was pretextual because

McKee treated several other similarly situated individuals differently than it treated Jones.

Pointing to evidence of an employer's differential treatment of similarly situated

8 As noted above, Jones’ suspension committee consisted of five individuals. The record

before the Court shows that four of these individuals (all but Philip Cameron) were

deposed.

® During his suspension hearing and later during his deposition, Jones remarked only that

he never recalled leaving company property on February 7th, and he asserted that Tharp

and Ruebush were mistaken to think that it was him. Although there is substantial

evidence to corroborate Tharp and Ruebush’s accounts (including that they were there

and that the electronic system record confirms that Jones swiped in and out of the building

around the time that they reported seeing him do so), even if they were mistaken, it does

not detract from the legitimacy of McKee’s asserted justification. For, “if an employer

bases its decision on an honestly-held belief unrelated to the FMLA, it is

nondiscriminatory even if that belief is mistaken.” Hudson, 787 F.3d at 866.

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employees is a textbook example of how an employee can establish pretext. However,

“[a]t the pretext stage, the test for determining whether employees are similarly situated

to a plaintiff is a rigorous one.” Burton v. Ark. Sec’y of State, 737 F.3d 1219, 1230 (8th

Cir. 2013) (internal quotation marks omitted). As a result, before a plaintiff may rely on

similarly-situated evidence, an employee “must prove only that the other employees were

similarly situated in all relevant respects.” Ridout v. JBS USA, LLC, 716 F.3d 1079, 1085

. (8th Cir. 2013) (internal quotation marks omitted). That is, “the individuals used for.

comparison must have dealt with the same supervisor, have been subject to the same

standards, and engaged in the same conduct without any mitigating or distinguishing

circumstances.” Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011)

(quoting Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004)).

This Jones has not done. Although Jones has pointed to at least three McKee

employees who were not terminated even though they violated the same McKee policy,

he has not demonstrated that any of these individuals shared the same supervisor (in

fact—the evidence shows that they did not), has not shown that they were not on FMLA

(to establish that his FMLA status was the true reason for the termination), and has not

demonstrated that these individuals engaged in the same conduct without any mitigating

or distinguishing circumstances. He only notes that these individuals were not terminated

and that they also did not get a Step 4 written warning. But, there is no evidence in the

record as to whether any of these individuals had previously received discipline for

improperly leaving company property (as Jones had a month prior to the February 7th

incident when he didn’t follow proper procedures before leaving on FMLA leave), and

there certainly is no evidence that these individuals, like Jones, refused to admit their

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conduct. In fact, the exhibits in the record show that these individuals readily admitted

their conduct, see, e.g., Doc. 20-24, pp. 2, 4. In short, Jones has not put forth sufficient

evidence showing that McKee’s asserted justification for Jones’ termination was pretext

for unlawful discrimination or retaliation against him because of his FMLA status. As a

result, his claims fail, and his FMLA discrimination and retaliation claims will be

DISMISSED WITH PREJUDICE.

There is one final matter before the Court. Because all of the remaining claims

have been dismissed either voluntarily by Jones or as a result of this Opinion and Order,

the Court need not decide address the impact of McKee’s alleged after-acquired evidence

and/or how that might limit Jones’ ability to recover. In addition, because all of the pending

claims have been dismissed, the three pending motions in limine, Docs. 36, 38, and 40,

are MOOT. .

iV. CONCLUSION

IT IS THEREFORE ORDERED that McKee’s Motion for Summary Judgment (Doc.

20) is GRANTED. Jones’ FMLA entitlement, retaliation, and discrimination claims are.

DISMISSED WITH PREJUDICE. As noted above, Jones has elected not to pursue the

claim for wrongful termination under Arkansas law. That claim will be DISMISSED

WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Jones’ Motion in Limine (Doc. 36), and McKee’s

Motions in Limine (Docs. 38, 40) are MOOT.

Judgment will enter contemporaneously with this Order.

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IT IS SO ORDERED on this | day of March, 201 | YY

ae oP

i ff

MOWHY BROOKS

A. UNFTED STATES DISTRICT JUDGE

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