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Smith v. AS America, Inc.

United States District Court, W.D. Missouri, Southwestern Division

January 9, 2015

JAMIE SMITH, Plaintiff,

Page 1047

For AS America, Inc., doing business as American Standard Brands, Defendant: David A. Campbell, Liana R. Hollingsworth, LEAD ATTORNEYS, PRO HAC VICE, Vorys, Sater, Seymour and Pease, LLP, Cleveland, OH; Jennifer A. Mueller, LEAD ATTORNEY, Baird Lightner Millsap, PC, Springfield, MO.

Page 1048


NANETTE K. LAUGHREY, United States District Judge.

In February 2011, Defendant A.S. America, Inc. (" American Standard" ) terminated Thomas Smith due to his number of accrued absences. Following his termination, Mr. Smith brought this action, alleging violation of the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. § § 2601, et seq. The case was tried before the Court by agreement of the parties. The Court now makes the following findings of fact and conclusions of law.

I. Findings of Fact

Thomas Smith began his employment at the Crane Plumbing plant in Nevada, Missouri on August 1, 2008. Sometime after Mr. Smith began working for Crane, the company, including the Nevada plant, was purchased by American Standard.[1]

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Throughout most of his employment, Mr. Smith worked as a " Kiln Utility," which was his position at the time of his termination. The Kiln Utility job involved manually lifting porcelain toilet bowls, tanks, urinals and sinks from carts to put them into a kiln to be fired, and lifting them again to put them back onto the carts after they came out of the kiln. The average bowls weighed fifty pounds and the tanks about twenty-five pounds. When Mr. Smith was unable to lift, he could not do his job.

As of January 2011 the Nevada plant followed a " no fault" attendance policy whereby it assessed an employee one point each time he was absent or failed to work the majority of his shift. If the employee accumulated eight points in a rolling calendar year, American Standard terminated the employee. Absences covered by FMLA were not supposed to result in points.

As of January 2011, Mr. Smith worked the third shift, from 11:00 p.m. until 7:00 a.m. For third shift employees, American Standard defined the work day by the day on which the employee's shift ended, not when it started. For example, if Mr. Smith worked from 11:00 p.m. on Saturday, through 7:00 a.m. on Sunday, that period would be deemed his Sunday shift and his time record would reflect eight hours of work for Sunday. As of January 2011 Mr. Smith's " weekend" was from the end of third shift on Wednesday morning through the beginning of the shift on Friday evening.

Mr. Smith was absent for his shifts that ended on January 9, 10, and 11, 2011. On January 10, Mr. Smith saw nurse practitioner Deborah Asberry at Nevada Urgent Care. Asberry noted that Mr. Smith exhibited " chronic lumbar strain" in her record of the visit. On January 11 Mr. Smith submitted to American Standard an Application for FMLA Leave for the period January 9 through January 12, 2011. The Application was accompanied by a Certification of Health Care Provider that had been completed by Asberry. The Certification noted two health problems: " cough due to acute sinusitus" and " lbp" (lower back pain)/" thoracolumbar spasm." With respect to Mr. Smith's lower back pain, Ms. Asberry noted on the Certification that:

o Mr. Smith would " need to have treatment visits at least twice per year due to the condition" ;
o Mr. Smith had been prescribed " medication, other than over-the counter medication," specifically NSAIDS (non-steroidal anti-inflammatory drugs) and m. (muscle) relaxants;
o Mr. Smith would be sent to PT (physical therapy) if the lower back pain continued or recurred;
o The condition could " cause episodic flare-ups periodically preventing [him] from performing his job functions" that she estimated might occur every three months and last three to five days per episode, requiring him to be absent from work.

This was the first time Mr. Smith had requested leave due to back pain while working at American Standard.

As of January 11, 2011 Human Resources Generalist Chris Morris was the local person responsible for administering the FMLA at American Standard's Nevada plant, with guidance from the corporate Director of Human Resources Randy Swander. Mr. Smith's Absentee Records for January 9 through 11 contain the notation " FMLA per C. Morris." The Absentee Records are filled out by an employee's supervisor on the date of an absence and are submitted to Human Resources, where the information is put into an Excel spreadsheet. At his termination meeting in February 2011, American Standard

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gave Mr. Smith a printout from the Excel spreadsheet that indicated that his January absence has been recorded as FMLA leave. No one at American Standard ever asked Mr. Smith for additional information about his January application for FMLA leave.

On Saturday, February 5, 2011 Mr. Smith strained his back plowing snow. He reported for his shift at 11:00 p.m. that evening but found he could not perform the lifting required by his job. At about 1:30 a.m. on Sunday morning, February 6, he told his supervisor that he needed to leave due to back pain and left. Mr. Smith called the Nevada plant's " call in" line before 11:00 p.m. on February 6 and left a message that he would be absent for his February 7 shift. He stated that his absence should be covered by his previous FMLA application. On February 7, Mr. Smith talked to Jackie Nall, who had recently replaced Chris Morris as the Human Resources Generalist at the Nevada plant. Mr. Smith told Ms. Nall he had hurt his back plowing snow. He then told Ms. Nall that he was going to the doctor but that his absences should already be covered by the FMLA application that had been approved in January. Ms. Nall emailed a copy of Mr. Smith's January FMLA application to Randy Swander, noting that Mr. Smith thought the application covered his current absences as well because it referred to lower back pain.

Mr. Smith visited the Nevada Urgent Care clinic on February 7. His complaint was noted as " Slipped on ice, twisted back in fall." Mr. Smith was examined by Nurse Practitioner Kristin Robertson. Ms. Robertson directed Mr. Smith to take anti-inflammatory drugs and muscle relaxants (which he already had from his January visit) and advised that he would need physical therapy. Ms. Robertson wrote a note for Mr. Smith to provide to American Standard. The note read: " Pt. seen in clinic 2/7/11. Please excuse from 2/8/11 & needs FMLA form to be completed for lumbar strain." Mr. Smith " called in" before 11:00 p.m. on February 7 to report that he would be absent for his February 8 shift. He again referred to his January request for intermittent FMLA leave.

On February 8, Mr. Smith went to the plant to submit Ms. Robertson's note. Ms. Nall met him and gave him documents assessing three points under American Standard's Absentee Policy for his leaving early from his February 6 shift and calling in for his February 7 and 8 shifts. According to American Standard these were his sixth, seventh and eighth points. Ms. Nall gave Mr. Smith a letter terminating his employment for accumulating eight points. Ms. Nall also gave Mr. Smith documents, dated February 8, purporting to deny the application for FMLA leave Mr. Smith submitted on January 10 which had already been granted. Mr. Smith protested that his absences should be covered by FMLA leave.

On February 11 Mr. Smith submitted a new Application for FMLA Leave for his February absences. On the Certification of Health Care Provider accompanying the new ...

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