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Achterberg v. Albaugh, LLC

United States District Court, W.D. Missouri, St. Joseph Division

November 7, 2017




         This action arises out of Plaintiff Laura Achterberg's (“Achterberg”) work assignment at Defendant Albaugh, LLC's (“Albaugh”) plant. Achterberg claims she was wrongfully terminated after she returned from training with the U.S. Army Reserves. Achterberg sued Albaugh, Employer Solutions Staffing Group II, LLC (“ESSG”), and Labtech Specialty Staffing Company (“Labtech”), for violations of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301, et seq., and wrongful termination in violation of public policy under Missouri common law.

         Now before the Court are the parties' cross motions for summary judgment. Defendants seek summary judgment on Achterberg's wrongful termination claim (Doc. 51). Achterberg seeks summary judgment on four issues related to her USERRA claim (Doc. 55).

         For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' motion, and GRANTS IN PART and DENIES IN PART Plaintiff's motion.

         Undisputed Material Facts[1]

         Albaugh operates an herbicide manufacturing facility in St. Joseph, Missouri. The operations include a quality control unit, which tests batches of product to ensure they meet company and regulatory specifications. Upon passing quality control, the product is “released, ” i.e., shipped, to customers.

         Labtech acted as an agent for ESSG and had a staffing agreement with Albaugh. Under the agreement, Albaugh contacted Labtech when it needed new staff, Labtech reviewed its applicant pool, and then selected individuals to interview with Albaugh. If Albaugh selected an individual for a position, the individual was hired by ESSG, and assigned to work at Albaugh. Labtech acted as the human resources contact for ESSG employees working at Albaugh.

         Achterberg is a member of the U.S. Army Reserves. In January 2014, she completed a job application with ESSG, at Labtech's office, and interviewed at Albaugh for an open position. On February 2, 2015, she began working as lab technician in the quality control lab. Achterberg reported to Tabatha Proffit, Laboratory Supervisor, and Jonathan House, Laboratory Manager.

         New lab technicians at Albaugh undergo a two-week training program before being placed on a permanent shift. Achterberg participated in six days of that training, but did not complete the program. Nevertheless, after the training period, Proffit assigned Achterberg to a permanent shift. After a few weeks of working at Albaugh, Achterberg received orders from the U.S. Army to report for 111 days of training in Texas. Achterberg worked through March 8, 2015, before leaving for her Army assignment. She returned to work on July 6, 2015.

         Labtech commonly contacted Proffit to check on the performance of the individuals it placed at Albaugh. On January 30, 2015, Proffit told Labtech through email that assuming Achterberg performs well during training, she would be placed on a permanent shift. In another email exchange on March 4, 2015, Labtech asked Proffit if she had concerns about any of the newly hired individuals. Proffit stated the new hires were generally performing well except for one new hire, who was not Achterberg. Proffit never mentioned to Labtech that Achterberg was a poor performer or that she considered terminating Achterberg.

         Proffit stated she considered providing Achtenberg a week of training to refresh her understanding of her job duties after being away with military duty. There are no facts in the record describing what that training included or that it was actually provided to Achtenberg.

         Two days after Achterberg returned to work, she recorded a laboratory sample as “out of specification.” An “out of specification” reading indicates that the sample tested outside of Albaugh's quality control parameters. When a lab technician receives an out of specification result, they are to report the finding to their lab supervisor. It is disputed as whether Achterberg notified Proffit about the out of specification result the day she recorded it, or the next day.

         On July 13, 2015, Proffit talked with House and recommended he terminate Achterberg. On the same day and in response to House's request, Proffit documented the reasons she recommended termination in a letter to House (the “Termination Letter”). In the Termination Letter, Proffit stated Achterberg performed poorly during the initial two-week training and continued to perform poorly after she was moved to a permanent shift. She noted she was discussing terminating Achterberg prior to her military assignment. Finally, she stated upon Achterberg's return to work, she did not demonstrate a significant improvement in her job performance, claiming she incorrectly logged results, misfiled results, and failed to notify a supervisor after receiving an out of specification test result.

         On July 16, 2015, Achterberg was terminated from her assignment at Albaugh. Albaugh maintains she was fired because she failed to report the out of specification lab result. During a deposition, House testified he believed Achterberg was terminated for releasing out of specification product. It is against Albaugh's policy and its standard operating procedures to release product that tests out of specification. Achterberg maintains she did not release out of specification product and Defendants have not put forth any evidence that she did.

         Approximately two years prior to Achterberg's termination, an Albaugh employee, in the position of Chemist I, was disciplined for failing to report an out of specification lab result. House was the employee's supervisor and issued that employee a written warning and notice that a repeat offense would result in a suspension. Albaugh has never terminated one of its employees for failing to notify a supervisor of an out of specification test result.

         On August 4, 2016, Plaintiff filed a two-count lawsuit alleging: (1) violations of USERRA, 38 U.S.C. § 4301, et seq.; and (2) wrongful termination in violation of public policy.

         Summary ...

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