Yeager v. Kaiser Aluminum Fabricated Products LLC et al, No. 2:2012cv00360 - Document 68 (E.D. Wash. 2014)
Court Description: ORDER GRANTING DEFENDANT KAISER'S MOTION FOR SUMMARY JUDGMENT - denying 35 Motion to Strike; denying as moot 45 Motion to Exclude; denying 47 Motion to Strike; denying as moot 50 Motion to Exclude; and granting 14 Motion for Summary Judgment. Signed by Senior Judge Lonny R. Suko. (CC, Case Administrator)
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Yeager v. Kaiser Aluminum Fabricated Products LLC et al Doc. 68 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 LUKE YEAGER, 9 Plaintiff, 10 -vs11 12 KAISER ALUMINUM WASHINGTON, LLC, a Delaware limited liability company; 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 BEFORE THE Judgment(ECF No. COURT is ) ) ) ) ) ) ) ) ) ) ) ) ) NO. CV-12-0360-LRS ORDER GRANTING DEFENDANT KAISER’S MOTION FOR SUMMARY JUDGMENT Defendant Kaiser’s 14), filed on November 6, 2013. March 6, 2014 in Yakima, Washington. Motion For Summary A hearing was held Lawrence Jay Kuznetz participated on behalf of the Plaintiff; William M. Symmes participated on behalf of Defendants. At the close of the hearing, the Court took the matter under advisement. Defendant Kaiser Aluminum moves for an order dismissing the case based on lawful termination of Plaintiff (a unionized United Steel Worker) for failure to adhere to the Company’s Sickness & Accident (S&A) policies and Absentee Policy. Defendant argues Plaintiff Yeager failed to obtain the requisite certification to excuse his absence between February 5, 2009 and April 24, 2009. Further, Defendant asserts, ORDER - 1 Dockets.Justia.com 1 Plaintiff was not terminated because of discrimination as he 2 complains–but because he never provided Occupational Health Solutions, 3 Inc. (OHS), Kaiser, or his Union with a medical certification to excuse 4 this 11-week, unsubstantiated absence despite multiple requests and 5 warnings from Kaiser, OHS, and the Union. As a result, Kaiser terminated 6 Plaintiff on June 27, 2009 for his unexcused absence between February 5 7 - April 23, 2009. 8 While the parties assert different factual scenarios, the facts 9 necessary for resolution of this case on summary judgment are not 10 disputed and will only be abbreviated herein. 11 ("Plaintiff" 12 Washington, and was a production employee of Kaiser from May 2007, until 13 June 14 fabrication plant1 in Spokane County, Washington. 27, or “Mr. 2009. Yeager”) Defendant is Kaiser a Plaintiff Luke Yeager resident owns and of Stevens operates an County, aluminum 15 A. Union Protocols 16 All of the hourly production workers at the plant, including 17 Plaintiff, are members of Local 338 of the United Steelworkers (the 18 "Union").2 19 agreements, which govern the terms and conditions of employment for the 20 production workers at the Trentwood Works. 21 between Kaiser 22 Agreement (a/k/a the collective bargaining agreement and hereinafter Kaiser and Aluminum the and Union the have Union entered is into various labor The principal agreement called the Master Labor 23 24 25 26 1 The plant “Trentwood”). 2 is known as the "Trentwood Works" (hereinafter The Union serves as the exclusive bargaining agent for these workers with respect to the terms and conditions of their employment with the Company. ORDER - 2 1 referred to as "CBA"), which governs rates of pay, hours of work, and 2 conditions of employment with respect to the hourly production workforce 3 at the Trentwood Works. 4 Article 11 of the CBA prevents Kaiser from terminating any hourly 5 production worker unless it has "proper cause" to do so. If an hourly 6 production worker or the Union believes that Kaiser has terminated an 7 employee without "proper cause," then pursuant to Article 10 of the CBA, 8 the employee or the Union may file a grievance challenging Kaiser's 9 decision. If a grievance is filed, the Union and the Company commence 10 the multi-step grievance process required by Article 13 of the CBA in an 11 effort to resolve their differences. 12 in most cases, the terminated employee remains on the job until the 13 grievance is finally resolved. Pursuant to Article 13 of the CBA, 14 If the grievance process does not resolve the differences with 15 respect to the termination of an employee, the CBA dictates the final 16 step in the Grievance process. The question of whether Kaiser had "proper 17 cause" to terminate an employee is submitted to an impartial arbitrator 18 who is mutually selected by Kaiser and the Union. 19 hearing, Kaiser has the burden to persuade the arbitrator that it had 20 proper cause to terminate the employee. 21 parties have agreed that the arbitrator's decision is final and binding 22 on both the Company and the Union. 23 Pursuant to Article 11 of the At the arbitration Under Article 10 of the CBA, the CBA, Kaiser may exercise its 24 Management Rights to promulgate various policies to govern the workforce 25 at Trentwood. 26 Absentee Policy. ORDER - 3 One such policy is the Kaiser Aluminum - Trentwood Works 1 B. Absentee Policy and S&A Benefits 2 The Absentee Policy3 is a "no-fault" policy based upon points. In 3 other words, barring a few exceptions, employees who are absent from work 4 receive points against their attendance record. Depending upon the 5 reason, 6 accumulation of 9 points in a 26-week period will result in discipline. 7 The first time an employee receives 9 points in 26 weeks, he or she 8 receives a written warning. 9 points in a 26-week period, he or she receives a written warning and a the points against their record may range from 1-3. An The second time an employee accumulates 9 10 3 day suspension. 11 5-day suspension pending discharge. 12 The third time it occurs, the employee receives a Certain absences are exempt from point accumulation. Examples of 13 absences which do not result in points or any adverse consequences are: 14 (1) absences certified to be the result of an industrial injury or 15 illness; 16 military service; (5) jury duty or bereavement leave; (6) authorized 17 personal leave of absence under the CBA; (7) authorized educational leave 18 of absence under the CBA; and (8) FMLA/disability leave explicitly 19 certified as such by a health care provider. 20 absence is not for an exempt reason as set forth above, his or her 21 absence results in the accumulation of 2 points for each day the employee 22 is absent. 23 employee is under the care of a doctor, and the doctor certifies that the 24 employee was too ill to report for work, the employee will receive only 25 2 points for the entire period of absence. (2) approved ECF No. 16-2. ORDER - 4 (3) official union business; (4) But when an employee's If an employee is absent for 2 or more days while the 26 3 vacations; The Absentee Policy also 1 provides that "consecutive absences of one scheduled workweek without 2 notification shall result in a voluntary separation from the payroll." 3 An employee will receive 3 points (as opposed to 2) if the employee 4 fails to report off work pursuant to the Absentee Policy. Pursuant to 5 the Absentee Policy and Section 10-02 of the Local Labor Agreement 6 between Kaiser and the Union, a Union worker is required to contact the 7 Guard Office at least one hour prior to the scheduled start of the shift. 8 The Guard Office will then provide Human Resources a daily report of 9 employees who have reported off from work. If an employee is absent or 10 anticipates being absent for 3 or more days due to a reported illness or 11 injury, Human Resources will work through Occupational Health Solutions 12 ("OHS"), located in Spokane, to monitor the employee's absence. 13 Kaiser contracts with OHS as a third-party vendor to manage all of 14 the occupational and non-occupational illnesses and injuries of the 15 hourly workforce. In this role, OHS provides Nurse Case Managers ("NCM") 16 to 17 Resources Department. 18 their role during mandatory employee orientation just after being hired 19 at Kaiser. 20 injury leave with OHS. work as liaisons between the Union workers and Kaiser's Human Employees are informed about OHS, the NCMs, and Union employees are instructed on how to coordinate sick and 21 As is relevant to this matter, the NCM may receive telephone calls 22 from hourly production workers who have been injured or who are suffering 23 from an illness that the employee believes precludes him/her from 24 performing his/her job duties for more than 2 days. 25 examine or diagnose the employee. 26 to excuse the hourly production worker from going to work based upon a ORDER - 5 The NCM does not The NCM makes a determination whether 1 telephone conversation with the worker. However in doing so, NCM gives 2 the employee the benefit of the doubt and accepts what the employee is 3 saying as true. 4 work for more than 3 days, the NCM conditionally places the hourly 5 production 6 Resources Department that the employee has been placed on sick leave. 7 The decision of the NCM merely initiates the sick leave process. If the NCM determines that the employee should be off worker on sick leave and notifies the Company's Human 8 Of significance, the NCM does not tell the Company what condition 9 the employee has that necessitates his or her absence from work. Without 10 an executed release from the employee, the Privacy Rule in the Health 11 Insurance Portability and Accountability Act ("HIPAA") and Article 14 of 12 the CBA prevent any discussion between the NCM and the Company in this 13 regard. 14 to monitor the employee's progress. After the employee is placed on sick leave, the NCM's role is 15 In conjunction with the hourly production worker and his or her 16 health care provider, the NCM receives the medical certification to 17 initially authorize the leave, and upon the employee's recovery, to clear 18 the employee back to work. 19 an employee's medical condition, it is not the NCM's role to certify an 20 employee's absence from work. 21 the employee's medical certification obtained by the employee from the 22 employee's health care provider on behalf of Human Resources. 23 Because the NCM does not examine or diagnose It is the NCM's job to receive and review Article 15 of the CBA provides certain Group Insurance benefits to 24 Kaiser's Union workforce. 25 Kaiser provides the Union workforce Sickness and Accident Benefits 26 ("S&A"). ORDER - 6 In accordance with this provision of the CBA, S&A benefits are cash benefits paid weekly to any Union worker 1 who is certified by a licensed physician as being unable to work due to 2 a medical condition. 3 which the employee is not under the care of a licensed physician. 4 Trentwood's Human Resources Department sends a letter to an hourly 5 production worker who has been placed on sick leave, informing the 6 employee of his or her obligations to coordinate with a NCM to obtain the 7 requisite medical certification, verifying the absence is due to a 8 medical condition and that he or she is unable to work. 9 employee's Benefits are not payable for any period during responsibility under the CBA to obtain It is the the requisite 10 certification and ensure it is forwarded to the Nurse Case Manager for 11 purposes of both the Absentee Policy and S&A eligibility. ECF 17 at 3. 12 D. Chronology of Relevant Events 13 In May of 2007, Plaintiff began his employment at Kaiser.4 On March 14 28, 2008, Plaintiff accumulated 9 points in a 26-week period and received 15 a Written Warning pursuant to Kaiser's Absentee Policy. 16 Union nor Mr. Yeager grieved this discipline. 17 accumulated an additional 9 points in a 26-week period and received a 18 Written Warning plus a 3 day suspension. Neither the Union nor Mr. Yeager 19 grieved this discipline. 20 additional 9 points in a 26-week period and received a Written Warning 21 plus a 5 day Suspension Prior to Discharge. 22 Newbill, the Chief Grievance Person for the Union, filed a Grievance 23 taking exception to Kaiser’s anticipated termination of Plaintiff. 24 /// Neither the On May 2, 2008, Plaintiff On October 21, 2008, Plaintiff accumulated an On January 6, 2009, Mr. Gary 25 26 4 On October 9, 2006, Mr. Yeager was terminated for excessive absenteeism from L. B. Foster Company (also known as CXT), a prior employer. ORDER - 7 On February 3, 2009, the Union and the Company held a Step 3 Meeting 1 2 pursuant to the Grievance Process of the CBA. 3 3 Meeting was to discuss the absenteeism of Plaintiff and his possible 4 discharge. As a result of this Step 3 Meeting, Kaiser agreed to mitigate 5 Plaintiff’s discipline and modify his attendance record to reflect the 6 corrected points in accord with the agreement reached between Kaiser and 7 the 8 discharged. Union at the Step 3 Meeting. The purpose of the Step Accordingly, Plaintiff was not 9 On the evening of February 4, 2009 (one day after settling his 10 grievance), Plaintiff called OHS from his foreman's office and told NCM 11 Rise that he didn't think he should be at work. 12 Plaintiff told NCM Rise, she placed him on sick leave on February 5, 13 2009, subject to Mr. Yeager's adherence to the Absentee Policy. NCM Rise 14 then notified the Human Resource Department that Mr. Yeager had been 15 placed on sick leave. Pursuant to established protocol, NCM Rise did not 16 tell anyone employed by the Company why Mr. Yeager was being placed on 17 sick leave. 18 while out on sick leave. 19 2009 and April 1, 2009, the NCMs at OHS spoke with Mr. Yeager on only 20 three occasions: Based solely upon what Mr. Yeager was directed to stay in contact with the NCM According to Defendant, between February 5, February 8, February 13, and February 19, 2009. 21 Despite well over a dozen phone connections with OHS shown in 22 Plaintiff’s phone records for the months of February, March, April, and 23 May, he asserts he did not learn until April 24, 2009, that he was 24 obligated to turn in a written health care provider’s medical excuse for 25 his absences during most of the prior three (3) months. 26 reflects that Mr. Yeager had been provisionally receiving S&A benefits ORDER - 8 The record 1 in the form of weekly cash payments since February 11, 2009. As noted 2 below, they were discontinued by Kaiser in early April of that year. 3 On April 3, 2009, NCM Rise emailed Paul Stoyell-Mulholland (then the 4 Human Resources Manager at Trentwood) stating that she had "been trying 5 to get a hold of Mr. Yeager, particularly in the last few weeks, as he 6 has been on sick leave since February 4, 2009, and has not returned the 7 sick leave paperwork or procured a note from the doctor to certify the 8 [sick] leave." 9 forwarded the NCM's April 3, 2009 email to Gary Newbill (the Chief 10 Grievance Person for the Union). Mr. Stoyell-Mulholland advised Mr. 11 Newbill that Mr. Yeager "has not been complying with the process - he has 12 failed to return appropriate paperwork and phone calls. At this time the 13 Company will suspend Mr. Yeager's [S&A] benefits if he does not provide 14 the appropriate paperwork to OHS by end of business on Monday, April 6, 15 2009. 16 That same day, April 3, 2009, Mr. Stoyell-Mulholland Please call me with any questions." Between April 3, 2009 and mid-April 2009, Mr. Newbill attempted, 17 on multiple occasions, to contact Mr. Yeager by telephone. Despite these 18 efforts, he was unable to reach Mr. Yeager. Nonetheless, on each 19 attempt, cell 20 requesting that Mr. Yeager contact him either at the Union Hall or on his 21 cell phone. 22 2009, after conferring with Plaintiff’s union representatives regarding 23 Plaintiff’s failure to obtain a certification authorizing his absence 24 from 25 suspended Plaintiff's S&A Benefits. 26 /// work ORDER - 9 he left a message on Mr. Yeager's phone Mr. Yeager did not return Mr. Newbill's calls. (as required by Kaiser's Absentee Policy), voicemail On April 6, the Company 1 On April 17, 2009, Mr. Newbill wrote a letter to Mr. Yeager advising 2 him that he was not only concerned about Mr. Yeager's loss of S&A 3 Benefits, but his potential termination from Kaiser for job abandonment 4 pursuant 5 “information as requested”. 6 this letter. 7 Benefits,” Mr. Newbill writes, in relevant part: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 to the Absentee ECF 41-1 at 7. Policy unless ECF No. 22-2. Mr. Yeager provided the Mr. Yeager admits receiving In this letter regarding “Suspension of I am writing you in regards to a communication that I received from the Company dated April 3, 2009 stating that your Company provided Sickness and Accident Benefits, were going to be suspended for a lack of compliance with the Nurse Case Manager, unless the Company received an appropriate response from you by the end of business on Monday, April 6, 2009. Since that time I have attempted to contact you by telephone and have left multiple messages on your voice-mail asking you to contact me here at the Hall or on my cell phone. To date, I have not received a response from you. As I have conveyed to you in the messages that I have left on your voice-mail, I am concerned not only with your benefits being suspended, but it is my belief that the Company's next step will be to terminate you for job abandonment as set forth under Paragraph V of the Trentwood Absentee Control Policy. I cannot stress to you enough, the importance of you contacting me immediately in order to resolve this issue. In order for the Union to be able to provide you representation, you need to return phone messages in a timely fashion and provide information as requested. Again, Mr. Yeager, the Union stands ready to represent you, to the point of helping you file a grievance on your behalf. But in order to do so, it will take both your effort and cooperation in providing the best representation possible. ECF No. 22-2 23 On April 24, 2009, Plaintiff indicated that he spoke to NCM Rise 24 on the phone and told her that he did not receive her numerous messages. 25 ECF No. 33 at 10. 26 note that Mr. Yeager had telephoned him on April 23, 2009. ORDER - 10 On or about April 23, 2009, Mr. Newbill received a It is 1 undisputed that after receiving the message, Mr. Newbill returned Mr. 2 Yeager's call and left multiple messages on Mr. Yeager's voicemail 3 requesting a return of Mr. Newbill's calls. 4 any of Mr. Newbill's calls, and Mr. Newbill was not able to speak with 5 Mr. Yeager. Mr. Yeager never returned ECF No. 22 at 3. 6 On April 24, 2009, Plaintiff again spoke to NCM Rise, which he 7 asserts was the first time NCM Rise told him he needed to get an excuse 8 from a health care provider for his absence from work. Id. 9 Plaintiff has never provided the requested certification authorizing 10 his absence during the relevant time frame at issue (February 5-April 23, 11 2009), although he knew5 in February 2009, or at the latest, April 24, 12 2009 that he would need such documentation from a health care provider. 13 During this relevant time period, as learned through the course of 14 litigation, Mr. Yeager had two visits with Dr. Steven Silverstein. 15 first visit occurred on February 13, 2009. 16 that all of Mr. Yeager's tests were essentially normal. 17 not see Dr. Silverstein again until April 24, 2009. Dr. Silverstein 18 determined that all of Mr. Yeager's tests were normal. 19 expressly noted that Mr. Yeager "does not need intervention." 20 at 112, 113. The Dr. Silverstein concluded Mr. Yeager did Dr. Silverstein ECF 15-7 21 On April 24, 2009, Mr. Yeager went to the Deer Park Clinic in an 22 apparent attempt to get the needed note from his health care provider to 23 excuse his 2-month absence from work and to remain on sick leave. 24 Yeager saw Derek Hennessy (certified physician’s assistant or PA-C) for Mr. 25 26 5 NCM Rise noted in her Progress Notes that Plaintiff expressed concern about getting points as early as February 8, 2009. Deposition of Jenniephier Rise, ECF No. 15-2 at 47. ORDER - 11 1 the first time, but still failed to obtain a doctor's note excusing him 2 for his absence from work, which by that time, extended from February 5, 3 2009 to April 24, 2009. 4 On May 14, 2009, NCM Rise emailed Kyle England (Kaiser’s Labor 5 Relations Manager) and advised him that she had received some of the 6 non-occupational [S&A] paperwork back from Mr. Yeager's doctor, but that 7 the paper work indicated Mr. Yeager's initial treatment occurred on April 8 24, 2009, despite being absent from work since early February of 2009. 9 She also advised Mr. England that "[h]e has also not gotten any of the 10 medical records to me like I requested." NCM Rise did not disclose 11 anything about Mr. Yeager's medical condition to Mr. England or his 12 fitness to return to work. 13 On May 18, 2009, PA-C Hennessy cleared Mr. Yeager to return to work 14 at Kaiser without restrictions, but still had not excused Mr. Yeager from 15 work for the period between February 5, 2009 through April 23, 2009. 16 May 18, 2009, Mr. England sent a letter “Re: Sickness & Accident Benefit 17 Termination” to Mr. Yeager (which Yeager received) and copied the same 18 to the Union. In part, the letter reads: 19 20 21 22 23 24 25 I am writing you today regarding your Sickness & Accident Benefit termination as well as your employment with Kaiser Aluminum. Based upon you failure to provide information/documentation necessary to cover your absences from work, the Company is faced with separating you from the payroll resulting in your termination from (sic) Kaiser. You have until 4 p.m. on Friday, May 22nd, 2009 to provide medical records regarding your inability to work. Failure to provide the requested information/documentation prior to the deadline shall result in your termination. Please contact me at 509927-6609 if you have any questions or concerns regarding this notification. 26 ECF No. 16-4. ORDER - 12 On On May 18, 2009, Mr. England also sent a letter to Mr. Rolf Laurin 1 2 at the Union. Mr. Laurin is the Health and Safety Chairman for the 3 Union. 4 the suspension of Mr. Yeager's S&A benefits. 5 notified the Union that "[t]he Company has made several attempts to 6 contact [Mr. Yeager] . . . regarding [his] failure to provide . . . 7 associated Doctor's notes covering [his] absences from work." The letter 8 also advised that Mr. Yeager had until May 22, 2009, at the close of 9 business to provide the required documentation or he would be terminated. 10 The Union's President and the Union's Chief Grievance Person were copied 11 on the letter. 12 Laurin, advising him to speak with Mr. Newbill who had been trying to 13 work with Mr. Yeager. This letter advised Mr. Laurin of the circumstances leading to Mr. England's letter also On that same day, Mr. England sent an email to Mr. Mr. Laurin responded that he would do so. On May 21, 2009, Plaintiff indicates he received Mr. England’s 14 15 letter dated May 18, 2009. 16 to Deer Park Family Care Clinic and signed the clinic’s medical release 17 authorizing the clinic to release his records to Kaiser. 18 same day, Plaintiff states he also spoke to NCM Rise and told her she 19 could now get the records and the clinic was going to send them to her 20 upon her request. 21 had to request the medical records directly from the doctor’s office. 22 Id. Id. ECF No. 33 at 14. Plaintiff states he went Id. On that Plaintiff states it was his belief that Kaiser 23 On May 22, 2009, the decision was made not to terminate Mr. Yeager 24 as Mr. England was having ongoing discussions with the Union whether Mr. 25 Yeager had provided the information that would excuse his absence from 26 work. On June 1, 2009, Mr. England sent an email to NCM Rise and her ORDER - 13 1 boss, NCM Moyer, asking whether OHS had heard from Mr. Yeager. 2 responded that she had not received the medical information concerning 3 his unexcused absences that she had requested from Mr. Yeager on numerous 4 occasions. 5 sent an email to NCM Rise stating, in part, that: 6 ECF 24 at 20. NCM Rise On that same day, Mr. England additionally . . . [the Union] is under the impression that Luke [Yeager] had provided the requested information. Could you let me know what he did not provide before I terminate. 7 8 9 NCM Rise responded, telling Mr. England that she had not received the 10 information. 11 was 12 documentation to support his then unexcused leave from 2/5/09 through 13 April." he Mr. England responded to NCM Rise's email by asking, "What supposed to provide." NCM Rise replied that, "Medical ECF 24 at 20. 14 On June 27, 2009, Mr. England asked NCM Rise to provide the Union's 15 new Chief Grievance Person, Dave Carlson, a list of the documents 16 requested from, but never provided by, Mr. Yeager.6 17 Mr. England sent a letter of employment termination to Mr. Yeager, with 18 copies to the Union. 19 termination 20 documentation relating to his absences from work. 21 invited Mr. Yeager to call him if he had any questions or concerns 22 regarding his termination. 23 which he received. 24 /// was Mr. On June 27, 2009, Mr. England explained that the reason for this Yeager's failure to provide the required Mr. England also Mr. Yeager did not respond to this letter 25 26 6 In May 2009, Mr. Carlson had been elected as the new Union Chief Grievance Person, taking Mr. Newbill's place in this Union position. ORDER - 14 On June 29, 2009, NCM Rise responded to Mr. England's email of June 1 2 27, 2009 by sending an email to Mr. Carlson advising him that: 3 Mr. Yeager was placed on non occ [sic] leave on 2/5/2009. I called him numerous times asking for medical certification to substantiate his leave. When he supplied [a] doctor's certification to be off work (received 5/13/09) the doctor only covered him to be off starting 4/24/09. We have not been given any documentation to support his non occ [sic] leave between 2/05/09 and 4/24/09. 4 5 6 7 8 ECF 24 at 21. On June 30, 2009, the Union filed a Grievance contesting the 9 10 termination 11 Grievance process. 12 Meeting concerning Mr. Yeager's termination. 13 first step in the Grievance process. 14 prepared an answer documenting the parties' positions as set forth in the 15 Step 3 Meeting. 16 been 17 documentation excusing his long-term absence from work. 18 Company explained that Mr. Yeager had been given ample opportunity to 19 provide the information, but still had failed to do so. 20 of properly Mr. Yeager. This filing commenced the multi-step In July 2009, the Company and Union held a Step 3 The Step 3 Meeting was the After the meeting, the Company The Company reiterated its position that Mr. Yeager had terminated for failing to provide the Company with Further, the On July 28, 2009, the Union withdrew the Grievance contesting Mr. 21 Yeager's termination for two reasons. 22 provide the Union with any documentation excusing his absences between 23 February 5, 2009 and April 24, 2009. 24 attempts to discuss with Mr. Yeager the facts surrounding his termination 25 were unsuccessful which made it difficult, if not impossible, for the 26 Union to represent him and contest his discharge. ORDER - 15 First, Mr. Yeager had failed to Second, the Union's several 1 Finally, on August 27, 2009, after he had been terminated, Plaintiff 2 obtained a note from PA-C Hennessy attempting to retroactively excuse him 3 from work for the period between February 5 and April 24, 20097, some two 4 months after Plaintiff had been terminated from employment. 5 Hennessy describes his note as “well-after-the-fact” and “atypical” of 6 his customary practice. 7 E. Discussion 8 Defendant Kaiser argues that the termination of Plaintiff was lawful 9 10 PA-C based on Plaintiff’s failure to comply with the Absentee Policy. Plaintiff asserts that his termination occurred because he was 11 perceived to be disabled. Plaintiff argues that even if failure to 12 follow a sick leave policy is one of the reasons for Plaintiff’s 13 discharge, pretext can still be shown by presenting evidence that his 14 disability was a motivating factor as well. 15 argues that Defendant Kaiser in essence promised Mr. Yeager that he would 16 be returned to work if he produced a valid work release. 17 argument is supported neither by the facts or the law. 18 he acted in reliance on that alleged promise. 19 suggests, under a Cat’s Paw theory, that NCM Rise had a bias against 20 Plaintiff because of his impairment and she somehow influenced Mr. 21 England’s decision to terminate him. Plaintiff alternatively However, this Plaintiff argues Finally, Plaintiff 22 Although Plaintiff claims he was not aware he needed to provide an 23 excuse from a health care provider for his absence until April 24, 2009, 24 and that he was under the impression that the burden was on Kaiser or NCM 25 26 7 As stated earlier, Mr. Yeager did not see PA-C Hennessy until April 24, 2009, but failed to even obtain a doctor's note excusing him for his absence from work until August 27, 2009. ORDER - 16 1 Rise to procure his medical records, there is no dispute that Plaintiff 2 received the letter dated April 17, 2009 from Mr. Newbill which clearly 3 stressed the urgent need for his communication and cooperation in 4 providing the requested information to excuse his 2-month absence. There 5 is also no dispute that on May 21, 2009, Plaintiff received Mr. England's 6 letter dated May 18, 2009, which again addressed his failure to provide 7 information/documentation necessary to cover his absences from work and 8 gave 9 documentation. him a final deadline of May 22, 2009 to provide medical That date was in effect extended into late June 2009 10 while Kaiser and the Union reviewed matters as noted above (p. 14, lines 11 1-3). 12 Simply put, at no time prior to Plaintiff’s termination, did Mr. 13 Yeager provide documentation excusing his absence from work between 14 February 4, 2009 and April 23, 2009. 15 As to Plaintiff’s theory of discrimination, at no time from February 16 4, 2009 through April 23, 2009, did Defendant know anything about 17 Plaintiff’s condition or medical treatment. 18 claimed or suggested disability for the time period of his absence until 19 two (2) months after his termination despite not having obtained a 20 medical excuse for his earlier time off the job. 21 ask or suggest any type of accommodation during that period. 22 treating physician Plaintiff saw during this absence from work was Dr. 23 Silverstein, who did not submit a note or opinion suggesting Plaintiff 24 was unable to work during the time period in question. In fact, Dr. 25 Silverstein that 26 intervention was not needed. ORDER - 17 found all tests to be normal Moreover, Plaintiff never and Neither did Plaintiff noted The only medical 1 Finally, there is nothing in the CBA that requires Defendant Kaiser 2 to wait or delay a decision to terminate based upon the possibility of 3 receiving a future medical excuse many weeks (in this case, months) after 4 the same was due. 5 CBA that requires or shifts the burden to Occupational Health Solutions 6 (or NCMs) or Kaiser to obtain Plaintiff’s medical records or medical 7 documentation for his absence. Similarly, there is nothing in the Absentee Policy or 8 There are no genuine issues of material fact precluding the court 9 from finding as a matter of law that Defendant Kaiser’s termination of 10 Mr. Yeager was lawful and not discriminatory. Pursuant to the Absentee 11 Policy, Defendant Kaiser had the legal right to terminate any employee 12 who failed to adhere to its terms and enforcing this neutrally-based 13 policy did not establish an inference of discrimination. 14 IT IS ORDERED that: 15 1. Defendant Kaiser’s Motion For Summary Judgment, ECF No. 16 filed on November 6, 2013, is GRANTED. 17 14, all claims asserted against it by Plaintiff. Defendant is awarded judgment on 18 2. Plaintiff's Motion To Strike, ECF No. 35, is DENIED. 19 3. Defendant's Motion to Exclude Hennessy, PA-C, ECF No. 45, is 20 DENIED as MOOT. 4. Plaintiff's Second Motion to Strike Affidavit, ECF No. 47, is 21 22 DENIED. 23 /// 24 /// 25 /// 26 /// ORDER - 18 1 2 5. Plaintiff's Motion to Exclude Expert Witness Tod Fleming, PA-C, ECF No. 50, is DENIED as MOOT. 3 IT IS SO ORDERED. 4 The District Court Executive is directed to enter this Order, enter 5 6 judgment consistent with this order, and CLOSE THE FILE. DATED this 26th day of March, 2014. 7 s/Lonny R. Suko 8 9 LONNY R. SUKO SENIOR UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 19
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