Clayton D. Halunen, and Jacob Frey, Halunen & Associates, and Michelle Dye Neumann, Brian T. Rochel, and Phillip M. Kitzer, Schaefer Law Firm LLC, Counsel for Plaintiff.
George R. Wood, Littler Mendelson, P.C., Counsel for Defendant.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment [Docket No. 31] and Plaintiff's Motion to Strike Declaration of Wesley Griffin [Docket No. 42]. The Court heard oral argument on October 4, 2013. Because genuine issues of material fact exist, the Court denies summary judgment. The Court also denies the motion to strike.
A. Factual Background
1. The Parties
Defendant J.B. Hunt Transport, Inc. ("J.B. Hunt") is a transportation logistics company incorporated in the state of Georgia and headquartered in the state of Arkansas. (Griffin Decl. ¶ 2.) The company operates a facility in Roseville, Minnesota that provides services to Whirlpool Corporation, a manufacturer of major home appliances. ( Id. ¶ 9.)
Plaintiff Bradley Johnson worked for J.B. Hunt from August 28, 2009, until December 16, 2010. (Kitzer Decl., Johnson Dep. 13, 33.) Johnson drove and delivered appliances for the Whirlpool account at J.B. Hunt's Roseville facility. ( Id. 12-14.) Johnson's manager was Jeffrey Henning. ( Id. 14, 18.)
2. J.B. Hunt's Workers' Compensation Claim Protocol
J.B. Hunt's policy is that when a driver is injured while working, the driver must immediately report the incident to J.B. Hunt's Corporate Claims Department by telephone. (Kitzer Decl., Hill Dep. 18-20; Griffin Decl., Ex. 1, J.B. Hunt 2009 Driver Manual at 71.) The Corporate Claims Department asks the driver whether he or she requires medical treatment and whether he or she would like to file a workers' compensation claim. (Hill Dep. 19-20.) If the employee decides to file a workers' compensation claim, the claim is administered by J.B. Hunt's workers' compensation coverage carrier. ( Id. 14.) J.B. Hunt employs three claims examiners who are liaisons between J.B. Hunt and its insurance carrier. ( Id. 14-15, 21-22.) The claims examiner responsible for the claims arising out of J.B. Hunt's Roseville location is Christina Hill. ( Id. 99.)
3. J.B. Hunt's Leave Policy
According to J.B. Hunt's written leave policy: "If an employee cannot return to work at the end of the FMLA leave because of the employee's incapacity and/or because no reasonable accommodation is available, [J.B. Hunt] may grant the employee a Personal Medical leave of up to 6 weeks." (Parrott Aff., Ex. 2, Johnson Dep., Ex. 2, J.B. Hunt Leave Policy at 7.) According to J.B. Hunt's 2009 Driver Manual, "Personal leave in excess of 6 weeks is not available." (Griffin Decl., Ex. 1, J.B. Hunt 2009 Driver Manual at 24.) Johnson received a copy of J.B. Hunt's leave policy, understood that he was entitled to a maximum of 18 weeks of leave, and was not aware of any employees receiving more than 18 weeks of leave. (Johnson Dep. 35-37, 139-40.) J.B. Hunt Litigation Director, Wesley Griffin, avers that J.B. Hunt's practice is that, if, at the end of the personal medical leave, the employee cannot return to his position within a reasonable period, J.B. Hunt discharges him, unless a position within his restrictions is available. (Griffin Decl. ¶ 8.) Also, "if the employee has presented a doctor's certification indicating that he or she will be able to return to work within a reasonable time period, additional leave time may be granted." (Id.) Defendant claims that, if an injured employee's doctor cannot provide J.B. Hunt with an estimated return to work date, J.B. Hunt requires that the employee provide medical documentation every 30 days in order to continue their leave of absence. (Parrott Aff., Ex. 2, Johnson Dep., Ex. 12.)
According to Defendant's 2009 Driver Manual, when a driver is out of work due to an injury, that employee cannot drive again until the Corporate Claims Department has received a release from the treating doctor that the driver can drive, load, and unload with no restrictions. (J.B. Hunt 2009 Driver Manual at 71.) Hill testified that claims specialists' practice is that, if a driver has restrictions that prevent him from performing the essential functions of a driver job, the claims specialist contacts the driver's supervisor and asks if the supervisor has any modified duty work at his location that may be performed by the driver within his restrictions. (Hill Dep. 23-28.) Hill testified that the decision of whether or not there is light duty work available for a restricted employee is left up entirely to the supervisor. ( Id. 26.) She further testified that, under J.B. Hunt policy, light duty assignments may not exceed six months per injury. ( Id. 33-34.)
Light duty activities may include filing, sweeping, cleaning, answering phones, light warehouse work, and helping determine "what stops go on what routes." (Kitzer Decl., Henning Dep. 23, 114.) A light duty assignment must fit the employee's injury-related work restrictions. (Id.)
The supervisor does not follow any particular criteria in deciding if light duty work is available but is directed to "use the employee's restrictions as a guide." (Hill Dep. 27-28; see also Henning Dep. 15, 21 (testifying that, if someone from the workers' compensation department asks him if he has light duty work available for an injured employee, he had discretion to determine whether light duty work is available to be given to an employee, but that he is not aware of any objective criteria to guide his determination).) Henning, testified that he had never attempted to find light duty work for an employee when asked by the employee, as opposed to the workers' compensation department, nor has he ever advocated for light duty for an employee. (Henning Dep. 16, 22, 82-83. But see Henning Dep. 83-85; Kitzer Decl., Ex. A, Feb. 26, 2010 Email from Henning to Hill ("Do you know anything about getting Richard Tomlinson in for light duty? This guy really wants to stay here and recover so that he can get back to normal duty. We can certainly find work for him within his restrictions. Any help you can offer is greatly appreciated!").)
4. Johnson's First Injury
Johnson was injured twice during his employment at J.B. Hunt. (Johnson Dep. 37.) His first injury occurred on December 21, 2009, when he pulled a muscle in his neck while delivering a refrigerator to a residential customer. (Johnson Dep. 38-39; Kitzer Decl., Ex. L.)
Johnson reported his neck injury to Henning. (Johnson Dep. 45-46.) Henning arranged for Johnson to receive treatment at Now Occupational Medical Clinic in Roseville. ( Id. 46-47.) After diagnosing Johnson's neck injury, a doctor recommended that Johnson undergo physical therapy. (Johnson Dep. 46.) The doctor also placed work restrictions on Johnson, including limitations on pushing, pulling, lifting and carrying. (Parrott Aff., Ex. 2, Johnson Dep., Ex. 4.)
Starting January 5, 2010, J.B. Hunt assigned Johnson a light duty position to accommodate his work restrictions. (Kitzer Decl., Ex. B.) Hill testified that it was Henning who determined whether there was a light duty position available for Johnson after his first injury. (Hill Dep. 85.) Henning only recalls Johnson being placed on light duty at some point. (Henning Dep. 113.) He remembers Johnson doing office or warehouse work, but could not recall any other details. ( Id. 113-14.)
Johnson was approved to work without restrictions on February 2, 2010. (Johnson Dep. 51-52; Parrott Aff., Ex. 2, Johnson Dep., Ex. 7.) He returned to his driver position on February 2 or 3, 2010. (Johnson Dep. 51-52.) Johnson received all workers' compensation benefits to which he was entitled for his first injury. ( Id. 51.)
5. Johnson's Second Injury
Johnson reported a second work injury on August 25, 2010. (Hill Dep. 88; Kitzer Decl., Ex. C; Johnson Dep. 56.) Again, he was paid workers' compensation benefits. (Johnson Dep. 57.) Johnson did not know the exact date that the injury occurred because it was a shoulder strain that occurred over the course of time. ( Id. 56.) Johnson reported the injury to Henning, who referred him to Roseville Medical Center. ( Id. 57.) On August 25th, 2010, the doctor diagnosed Johnson with a shoulder strain and placed him on work restrictions. ( Id. 58.)
After Johnson's second injury, Henning said he would "get [him] into the office for light duty work, " and until then, he was to "stay at home." (Johnson Dep. 59-60.) Henning recalled that Johnson suffered a second injury; however, he could not recall doing anything to try to return Johnson to work after the injury. (Henning Dep. 115-16.) Johnson claimed that Henning never called him with any information relating to light duty work. (Johnson Dep. 60.) Johnson was never returned to work. ( Id. 59.)
Hill could not remember if anyone discussed a potential modified or light duty position with respect to Johnson's second injury. (Hill Dep. 89.)
6. Leave after the Second Injury
On August 26, 2010, J.B. Hunt placed Johnson on FMLA leave. (Johnson Dep. 60-61; Parrott Aff., Ex. 2, Johnson Dep., Ex. 11.) While on leave, Johnson was diagnosed with a rotator cuff and labrum tear. (Johnson Dep. 62-63.) He underwent surgery for the tear on December 13, 2010. ( Id. 63-64.) Following the surgery, Johnson recalled being given work restrictions, limiting his right arm and shoulder to minimal, or "table top" use. ( Id. 64.)
While Johnson was on leave for his second injury, Henning told driver Richard Tomlinson, "Brad probably got hurt when four wheeling, and now he's going to take it out on us." (Tomlinson Decl. ¶ 4.) Tomlinson claims that Henning inquired whether Johnson was in a four-wheeling accident, and Tomlinson replied that he did not know. (Id.) Henning testified that he vaguely recalled Tomlinson telling him that Johnson had been in a four-wheeling accident, but could not recall feeling suspicious that Johnson's injury was related to the accident. (Henning Dep. 118-119.)
Tomlinson also avers that, following Johnson's second injury, he overheard Regional Safety Director Ron Schey tell Henning, "With everything happening to Brad, he is becoming a liability for J.B. Hunt." (Tomlinson Decl. ¶ 3; Johnson Dep. 88, 98-100, 104-06.) Henning agreed with Schey's comment. (Tomlinson Decl. ¶ 3.)
Johnson exhausted all available FMLA leave on approximately November 3, 2010. (Johnson Dep. 68-69; Parrott Aff., Ex. 2, Johnson Dep., Ex. 12.) He received workers' compensation throughout his FMLA leave. (Johnson Dep. 65.)
On November 30, 2010, J.B. Hunt Benefits Service Representative Denise Myers sent a letter to Johnson indicating that he had been approved for six weeks of personal medical leave, effective November 4, 2010. (Johnson Dep. 68-69; Parrott Aff., Ex. 2, Johnson Dep., Ex. 12.) The additional six weeks were to expire on December 15, 2010. (Id.) The letter also indicated that if Johnson was unable to return to work prior to December 15, 2010, his employment with J.B. Hunt would end. (Id.)
Myers wrote a second, November 30, 2010, letter to Johnson concerning his personal medical leave. (Parrott Aff., Ex. 2, Johnson Dep., Ex. 12.) Myers explained that J.B. Hunt received the initial doctor's certification required to approve Johnson's personal medical leave. (Id.) However, because Johnson's physician was unable to provide J.B. Hunt with an estimated return to work date, Myers instructed Johnson to complete and return a new certification, which was enclosed, before December 15, 2010. (Id.) Myers explained that in instances where J.B. Hunt does not have an estimated return to work date, the injured employee was required to send medical documentation every 30 days in order for the employee to continue his leave of absence. (Id.) The letter instructed that if the doctor's certification was not completed and received by December 15, 2010, Johnson's leave of absence would end and his employment with J.B. Hunt would be terminated. (Id.)
Johnson claims that he telephoned Myers, and that Myers gave him an extension to the December 15, 2010 deadline on account of it taking the doctor's office "so long to do [the] forms." (Johnson Dep. 73-76.) According to Johnson, Myers stated that J.B. Hunt would grant an extension to ...