United States District Court, D. Nebraska
RICHARD W. AMON, JR., an individual, Plaintiff,
UNION PACIFIC DISTRIBUTION SERVICES COMPANY, a Delaware corporation, Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
Defendant Union Pacific Distribution Services Company ("UPDS") terminated the employment of plaintiff Richard W. Amon, Jr. ("Amon") after he refused to report to work for a critical meeting. Amon claims he was terminated because he has a disability in violation of the Americans with Disabilities Act ("ADA") and the Nebraska Fair Employment Practice Act ("NFEPA"). Amon also asserts that UPDS refused to grant him leave under the Family Medical Leave Act ("FMLA"). UPDS has moved for summary judgment on all of Amon's claims. (Filing 45.) For the reasons that follow, I shall grant UPDS's motion.
I. UNDISPUTED MATERIAL FACTS
1. On December 1, 2004, Amon was hired as an IT Manager by Transentric, the predecessor to UPDS. (Complaint, Filing 1, at CM/ECF p. 2; Filing 62-4, Dep. Richard Amon at CM/ECF p. 34.) In January 2009, Transentric became UPDS, and Amon was "very much involved" in the transition. (Filing 62-4, Dep. Richard Amon, at CM/ECF pp. 39-40).
2. During his employment with UPDS, Amon became a project manager who ensured "process and project management things were being taken care of in an expeditious manner." (Filing 62-4, Dep. Richard Amon, at CM/ECF p. 38.) Amon's job responsibilities included helping develop and implement technology that would assist UPDS, including serving as a go-between for UPDS in communicating with software developers. (Filing 62-4, Dep. Richard Amon, at CM/ECF pp. 36-37.)
3. In or around May 2010, Julia Ulrich began to supervise Amon and was his supervisor at all times relevant to Amon's claims. Among other things, Ulrich was responsible for approving Amon's vacation leave. (Filing 46-2, Decl. Julia Ulrich ¶¶ 4-5.)
4. Elizabeth Whited was the President of UPDS, and Julia Ulrich reported to Whited at all times relevant to Amon's claims. (Filing 46-3, Decl. Elizabeth Whited ¶ 3.)
November 2010 Leave of Absence
5. In November 2010, Amon began experiencing extreme flu-like symptoms, and he was diagnosed with anxiety, depression, and disorientation. (Filing 62-4, Dep. Richard Amon, at CM/ECF p. 71.) As a result of this diagnosis, Amon's treating physician recommended that he take short-term disability leave. (Filing 62-4, Dep. Richard Amon, at CM/ECF p. 72.)
6. UPDS's leave policy required an employee who needs sick leave for more than three days to apply for short-term disability benefits. (Filing 46-4, Decl. Cheri Maxwell ¶ 6; Filing 46-5, UPDS STD Coverage).
7. UPDS contracts with MetLife to administer its disability benefit plan. (Filing 46-4, Decl. Cheri Maxwell ¶ 7.) Under this arrangement, UPDS personnel do not administer the disability benefits and receive no information regarding the reason an employee applies for or receives disability benefits. (Filing 46-4, Decl. Cheri Maxwell ¶ 8.) MetLife only informs UPDS if an employee has qualified or not qualified for the benefits. (Filing 46-4, Decl. Cheri Maxwell ¶ 9.)
8. In November 2010, Amon's wife contacted Union Pacific healthcare services to notify UPDS that Amon wanted to apply for short-term disability benefits, and UPDS directed her to MetLife. (Filing 62-4, Dep. Richard Amon, at CM/ECF pp. 72-73.)
9. MetLife granted Amon short-term disability benefits and informed Cheri Maxwell, the UPDS Human Resources Manager, that Amon qualified for short-term disability leave. Maxwell then informed Ulrich that Amon qualified for short-term benefits, and he was granted a leave of absence. (Filing 46-4, Decl. Cheri Maxwell ¶ 10.)
10. Amon considered his medical condition in November 2010 and his reason for disability leave confidential, and neither he nor his wife revealed that information to anyone at UPDS. (Filing 62-4, Dep. Richard Amon, at CM/ECF pp. 73-74.)
Return from Short-Term Disability Leave
11. In early December 2010, Amon returned from short-term disability leave to the same position, with the same job duties, and he received the same pay. (Filing 62-4, Dep. Richard Amon, at CM/ECF p. 74.)
12. Amon admits that he did not experience anything he considered to be retaliation for taking leave in November 2010, and if he would have experienced anything he perceived as retaliation, he would have reported it to Human Resources. (Filing 62-4, Dep. Richard Amon, at CM/ECF pp. 74-75.)
13. When Amon returned from leave, UPDS assigned Amon to be the "Project Manager" of the Honda Project, which was an important project because it would bring a new line of business to UPDS from Honda in Mexico. (Filing 46-2, Decl. Julia Ulrich ¶¶ 6-7.) Amon claims that his title was not "Project Manager, " but "Facilitator." (Filing 62-4, Dep. Richard Amon, at CM/ECF pp. 59-62.)
14. UPDS described Amon's role in the Honda project as managing the employees working on the project to make sure all of the tasks and deliverables were accomplished. (Filing 46-2, Decl. Julia Ulrich ¶ 8.) Amon viewed his role at the beginning of the project as ensuring the meetings occurred in an orderly fashion. He claims he had no real responsibility at this time because the project "was in its infancy, " and "it takes a couple of months to develop a project plan with deliverable action items." However, Amon admits that "[e]very meeting that you go to is important." (Filing 62-4, Dep. Richard Amon, at CM/ECF pp. 68-71.)
15. Julia Ulrich, Amon's supervisor, "assigned Mr. Amon as the Project Manager because of the importance of the [p]roject and [her] belief that Mr. Amon would be a dedicated project manager who knew all of the requirements to make the project successful." (Filing 46-2, Decl. Julia Ulrich ¶ 9.)
16. In late December 2010, Amon booked a family trip to Hawaii for February 20-27, 2011. (Filing 62-4, Dep. Richard Amon, at CM/ECF pp. 92-93 & 96.) Amon requested vacation leave for those dates, and Ulrich approved the leave. (Filing 62-4, Dep. Richard Amon, at CM/ECF p. 96; Filing 46-2, Decl. Julia Ulrich ¶ 10.)
17. Amon cancelled the Hawaii trip in or around late January 2011 or early February 2011 after he learned his stepdaughter had to undergo surgery. (Filing 62-4, Dep. Richard Amon, at CM/ECF p. 99.)
18. Amon sent an e-mail to Jessica Kephart, the UPDS Vacation Administrator, cancelling his request for vacation leave. Amon did not provide a reason to Kephart as to why he was cancelling his vacation leave request. (Filing 62-5, Dep. Richard Amon, at CM/ECF pp. 1-2; Filing 46-6, E-mail Exchange Between Amon and Kephart.)
Week of February 14, 2011
19. Amon worked a full day on Monday, February 14, 2011, but left work at 12:00 noon on Tuesday, February 15, 2011, to care for his dog and cat because his wife was in Phoenix. (Filing 62-5, Dep. Richard Amon, at CM/ECF pp. 5-7.)
20. Amon did not report to his supervisor, Ulrich, that he was leaving early on either of those days, but told his colleague Sam Packard ("Packard"). Amon testified that this was the "normal practice, " and he was not required to report leaving early from work directly to Ulrich. (Filing 62-5, Dep. Richard Amon, at CM/ECF pp. 6-8.)
21. Amon notified UPDS that he was taking a sick day on Wednesday, February 16, 2011, by sending an e-mail from his personal e-mail account at 6:41 a.m. to Packard with the subject line, "taking a sick day today." (Filing 62-5, Dep. Richard Amon, at CM/ECF pp. 8-10; Filing 46-7, E-mail from Amon to Packard.)
22. As with leaving work early, Amon claims the "standard procedure" if he was taking sick leave was to send an e-mail to Packard, and Packard would inform Ulrich so he did not have to send an e-mail directly to Ulrich. Packard did the same. (Filing 62-5, Dep. Richard Amon, at CM/ECF p. 8.)
23. At 10:21 a.m. on Wednesday, February 16, 2011, Ulrich sent an e-mail to Amon's work e-mail address with the subject line, "Where are you" (Filing 46-2, Decl. Julia Ulrich ¶ 12; Filing 46-9, E-mail String dated Feb. 16, 2011, through Feb. 23, 2011.) Amon did not respond to this e-mail and claims he never received it. (Filing 62-5, Dep. Richard Amon, at CM/ECF pp. 16-17.)
24. Ulrich sent this e-mail because she was skeptical that Amon was sick and believed that he may have decided to take the vacation for which he requested leave and later cancelled. (Filing 46-2, Decl. Julia Ulrich ¶ 13.)
25. Amon notified UPDS that he was taking a sick day on Thursday, February 17, 2011, by sending an e-mail at 6:03 a.m. that day to Packard and Ulrich from his personal e-mail account stating, "still running to the bathroom. I will be working from home, when I can." (Filing 62-5, Dep. Richard Amon, at CM/ECF pp. 11-12; Filing 46-9, at CM/ECF p. 1.)
26. At 3:03 p.m. on that same day, Ulrich sent an e-mail to Amon's work e-mail address with the subject line, "Honda meeting." In the e-mail, Ulrich stated, "What's the message ...