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Jones v. McKee Foods Corp.

United States District Court, W.D. Arkansas, Fayetteville Division

March 1, 2019




         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.

         I. 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 as a 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 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).

         The January 3rd Leave

         In the middle of his overnight shift on January 3, 2017, Jones told another McKee employee, Dallas Cheeks, [2] 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)[3] 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).

         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.[4]

         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 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[5] unanimously decided to terminate Jones' employment with McKee.

         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 ...

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