United States District Court, W.D. Missouri, Western Division
For Michael Carter, Plaintiff: Jordan Ross Bergus, Paulus Law Firm, LLC, Kansas City, MO; Ryan Paulus, Hollingshead, Paulus & Eccher, Kansas City, MO.
For CSL Plasma, Inc., Defendant: Anthony B. Byergo, Adam T. Pankratz, Ogletree, Deakins, Nash, Smoak & Stewart-KCMO, Kansas City, MO.
Fernando J. Gaitan, Jr., United States District Judge.
Pending before the Court is Defendant CSL Plasma Inc.'s Motion for Summary Judgment (Doc. No. 48).
I. Statement of Facts
CSL Plasma is a blood plasma collection company headquartered in Boca Raton, Florida, with operations throughout the United States, including a facility at 6000 Independence Ave., Kansas City, Missouri. CSL Plasma maintains an Equal Employment Opportunity Policy. CSL Plasma also maintains written employment policies prohibiting discrimination, harassment and retaliation in the workplace.
The Employee Handbook contains policies related to Attendance Standards and Absence Without Notice. (Employee Handbook Policies, Attendance Standards and Absence Without Notice, Doc. No. 49, Ex. 4). The Attendance Standards policy states, " Failure to notify the Manager of an absence or late arrival within the agreed-upon timeframe or continuous attendance occurrences may be grounds for corrective action or termination of employment." (Id.). The Absence Without Notice policy states, " Employees who fail to call or show for work to explain their absence prior to the start of their scheduled work hours may be subject to Corrective Action or termination. (Id.).
In addition to the policies in the Employee Handbook, CSL Plasma maintains a separate written attendance policy. The Attendance Policy provides that an employee will receive a verbal coaching after two unscheduled absence occurrences, which includes a full day or any portion of the day when an employee is away from work when the employee is scheduled to work, within a six month rolling period. (Attendance Policy, Doc. No. 49, Ex. 5). The Attendance Policy also provides for a written coaching after four unscheduled absence occurrences within a six month rolling period and a first written warning after six unscheduled absence occurrences within a six month rolling period. (Id.). The Attendance Policy states that an employee
will receive a final written warning after seven unscheduled absence occurrences or 1-2 days of No Call/No Show, and termination of employment after eight " unscheduled absences occurrences, 1-2 days of No Call/No show, the second occurrence, or three (3) days of No Call/No Show (first occurrence)." (Id.). The Attendance Policy also states that " Failure to maintain a satisfactory attendance record will be grounds for 'corrective action' or termination." (Id. at Section 1.2, Doc. No. 49, Ex. 5). " The language used in this policy is not intended to create, nor should it be construed to constitute, a contract between CSL [Plasma] and its employees." (Id. at Section 4.3, Doc. No. 49, Ex. 5).
CSL Plasma also has a policy requiring employees to wear personal protective equipment, which for the facility where Carter worked required that he wear proper shoes that would not allow blood or fluids to seep through the material. CSL Plasma also maintains a Center Exposure Control Plan which provides, " Personal protective equipment will be considered 'appropriate' only if it does not permit blood or other potentially infection materials to pass through to reach the employee's work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use." Carter received training on the Center Exposure Control Plan on April 11, 2012.
Rebecca Heatherman is an employee of CSL Plasma who now resides in Boca Raton, Florida in her current role as Senior Manager, Quality Systems. Among other positions, CSL Plasma previously employed Heatherman as a Quality Manager and then a Center Manager at its facility at 6000 Independence Ave., Kansas City, Missouri.
Plaintiff Michael Carter began working for CSL Plasma on April 10, 2012 as a full time Material Handler. The Employee Handbook and all of the personnel policies are maintained and available to all employees, including Carter, on CSL Plasma's intranet site, Teamlink. Carter received the New Hire Orientation Program that discusses CSL Plasma's policies prohibiting discrimination and retaliation, attendance, dress code and the proper protective equipment (Center Exposure Control Plan) that CSL Plasma expects employees to wear in early April 2012. Carter again reviewed the Attendance Policy, the Dress Code policy, the Center Exposure Control Plan and the Center New Hire Orientation Welcome and Overview Presentation on August 8, 2012.
On April 27, 2012, CSL Plasma provided Carter with a verbal coaching regarding his attendance because he was tardy on April 17, 2012 and April 27, 2012. Thomas Denn delivered the verbal coaching on April 27, 2012. On May 17, 2012, CSL Plasma noted in Carter's employee file, through a Memo to File, that Carter had his personal laptop in the warehouse to listen to music in violation of company policy. On June 8, 2012, a complaint was made that plaintiff was observed to be on the phone during working hours. Because of discrepancies in the write-up (including purported witnesses saying they did not witness plaintiff using his phone), Denn issued a Memo to File instead of the performance corrective action. (Denn Memo to File Dated 6/8/2012, Doc. No. 49, Ex. 15). On June 12, 2012, CSL Plasma gave Carter a written coaching regarding his attendance because he was again tardy on May 4, 2012 and June 12, 2012. Denn delivered the attendance written coaching on June 12, 2012. (Attendance Corrective Action Report Dated 6/12/2012, Doc. No. 49, Ex. 16).
Carter wrote on his June 12, 2012 Attendance Corrective Action Report that he believed that it was " BACKLASH" because of the inaccurate draft corrective action from June 8, 2012. (Attendance Corrective Action Report Dated 6/12/2012, Doc. No. 49, Ex. 16). Although the " BACKLASH" comment does not reflect discrimination based on gender, Carter testified he believed he was being reprimanded because of his gender and he reported his beliefs to " the supervisors that were male that would listen." Carter Dep., Doc. No. 51 Ex. 4, 143:17-21. Those employees included Tom Denn, Ken Lain, and Justin Gronbach. Id. 144:2-19. Plaintiff said he could not recall a date that
these reports were made. Id. at 144:20-25.
Denn and Heatherman met with Carter on June 14, 2012 to discuss his comment about the attendance corrective action allegedly being " backlash." Heatherman reviewed the performance and attendance corrective action processes with Carter, and she asked if there were any other concerns. Carter expressed none. The meeting concluded upon Heatherman's determination that " there seems to be no retaliation to report." (Denn Handwritten Notes dated 6/14/2012, Doc. No. 49, Ex. 17; Denn Dep., 43:9-44:8, Doc. No. 49, Ex. 18). Denn, however, testified, " Did I feel that he was being retaliated against personally?" " Yes." (Denn. Dep. Doc. No. 51, Ex. 3, 44:14-45:2).
On July 25, 2012, CSL Plasma observed Carter wearing non-cleanable shoes made of absorbent material, in violation of health and safety policy. See Center Exposure Control Plan, Doc. No. 49, Ex. 7, § 126.96.36.199 (" Open-toed, open-heeled, and shoes of absorbent material are not permitted. . . .." ). CSL Plasma gave Carter, as it does with all employees, the option to go home to change his shoes or to leave early for the day. Carter left early for the day. CSL Plasma did not assess an absence occurrence point because Carter indicated that he did not know this requirement that shoes had to be made of nonabsorbent material. (Heatherman Dec., ¶ 5, Doc. No. 49, Ex. 1; Center Exposure Control Plan, Doc. No. 49, Ex. 7).
On August 21, 2012, CSL Plasma issued a Performance Corrective Action to Carter after he engaged in a verbal altercation with another male employee on August 15, 2012. Shane Groover, a Medical Operations Supervisor, observed the verbal altercation and originated the corrective action.
On August 25, 2012, CSL Plasma issued a written warning to Carter because, in addition to his prior verbal coaching and written coaching, Carter was tardy on four additional occasions between July 23, 2012 and August 22, 2012. Justin Gronbach issued the Attendance Corrective Action. (Attendance Corrective Action Report Dated 8/25/2012, Doc. No. 49, Ex. 20). That Attendance Corrective Action Report stated, " please be aware further incidents could result in next level corrective action or termination of employment." (Id.).
On September 6, 2012, CSL Plasma issued a Final Written Warning to Carter because CSL found that plaintiff was out of the production area for two hours but he had only clocked out for a 29 minute lunch break. Gronbach and Cristina Ceniceros issued the Performance
Corrective Action Report to Carter. (Performance Corrective Action Report Dated 9/6/12, Doc. No. 49, Ex. 21).
On October 9, 2012, Carter submitted a letter to CSL Plasma resigning his full time employment in favor of a part time position because he " recently attained full time employment with another company . . . ." CSL Plasma accepted Carter's request to move to a part-time position, and he continued working for the company.
Both employees and non-employees who donate blood plasma are compensated for the donation. Individuals who wish to donate plasma must be identified and must answer certain private medical questions. Generally for employees, this process can be completed on a screening kiosk in the collection facility. If there are issues with the screening kiosk, a CSL Plasma employee may ask non-employee donors the required questions. If there are issues with the screening kiosk when the prospective donor is also an employee, CSL Plasma does not permit its other employees to ask the required health history questions because of privacy concerns for the prospective employee-donor.
On November 28, 2012, Adam Miller (" Miller" ), a CSL Plasma employee from another facility, was serving as the supervisory employee at the CSL Plasma collection facility at which Carter was employed. Carter attempted to donate plasma on November 28, 2012 but was unable to donate plasma due to issues with the screening kiosk and because CSL ...