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Gurrola v. Tyson Fresh Meats, Inc.

United States District Court, D. Nebraska

April 8, 2015

JAVIER MURILLO GURROLA, Plaintiff,
v.
TYSON FRESH MEATS, INC., Defendant.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, Senior District Judge.

This matter is before the Court on plaintiff's motion for partial summary judgment (Filing No. 35) and defendant's motion for summary judgment, (Filing No. 38). In his complaint, the plaintiff asserted claims against his employer, Tyson Fresh Meats, Inc. (hereinafter Tyson), alleging retaliation for (a) asserting his right to change his choice of doctor under the Nebraska Workers' Compensation Act, Neb. Rev. Stat. § 48-120(2), and for (b) retaining an attorney to assist him in handling his workers' compensation claims. Filing No. 1-1. The plaintiff seeks "monetary relief including but not limited to back pay, front pay, compensatory and punitive damages." Filing No. 1-1.

After the plaintiff filed a lawsuit in state court, the defendant filed a notice of removal, based on diversity jurisdiction, and had the case removed from the District Court of Dawson County, Nebraska to the United States District Court for the District of Nebraska. Filing No. 1; 28 U.S.C. § 1332. The United States District Court has "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000.00, exclusive of interest and costs, and is between... citizens of different States..." 28 U.S.C. § 1332. The plaintiff is a resident of Nebraska and the defendant is a Delaware corporation with its principle place of business in Arkansas. Filing No. 1-1. Magistrate Judge Thalken previously determined that the defendant provided sufficient evidence to establish the amount in controversy in this case. Filing No. 12. The parties did not object to the finding and the Court affirmed the magistrate judge. Filing No. 14. Thus, the Court finds both diversity jurisdiction and amount in controversy exist in this case.

I. BACKGROUND

This case arises out of the employment relationship between the parties. Filing No. 1-1. The defendant, who operates a meat packing plant in Lexington, Nebraska, employed the plaintiff from September 2010, until his termination in May 2013. Filing No. 39, at ECF p.3. Plaintiff reported at least five work-related injuries during his employment at Tyson, the first of which occurred in October 2010. Filing No. 39, at ECF p.5. The injuries specific to this case include, an injury to his left wrist, an injury to his right wrist, and a groin injury/hernia. Filing No. 37; Filing No. 39.

The plaintiff first reported problems with his left wrist to Tyson on or about May 31, 2012 and Tyson placed him on restricted duty. Filing No. 37, at ECF p.4. The plaintiff reported problems with his groin/hernia to Tyson on or about February 6, 2013. Filing No. 39, at ECF p.6. The plaintiff reported right wrist pain to Tyson on or about February 28, 2013. Id. Tyson treated all three injuries as work-related. Id. Tyson provided the plaintiff with a choice of doctor form for each of the three injuries.[1] Filing No. 39, at ECF p.7. The plaintiff initially selected his family physician, Dr. Pat Unterseher as the treating physician for his left hand injury. Filing No. 42-2. Dr. Unterseher referred the plaintiff to Dr. E. Scott Carroll, a hand specialist. Filing No. 39, at ECF p.7. For the right wrist, the plaintiff designated Dr. Carroll as the treating doctor. Filing No. 42-2. For his groin injury, the plaintiff designated Dr. Kerrey Buser as the treating doctor. Filing No. 42-2.

Dr. Carroll treated the plaintiff for his wrist pain and placed him on restricted duty. Filing No. 37, at ECF p.4. Dr. Carroll recommended carpal tunnel surgery to correct the left wrist injury, but the plaintiff refused surgery. Filing No. 37, at ECF pp.5-6. The plaintiff returned to work in November 2012. Id. The plaintiff started developing right wrist pain while he was on restricted duty from the left wrist pain. Id. Dr. Carroll treated the plaintiff for both wrist injuries on March 14, 2013, and restricted the plaintiff from using either his right or left hands. Id. The plaintiff, through his attorney, advised Tyson that he had chosen a different doctor, Dr. McCarthy to perform the left hand surgery. Filing No. 42-4. Tyson agreed to the change of doctor and attempted to schedule an appointment for the plaintiff to see Dr. McCarthy. Filing No. 42-5. After Dr. McCarthy declined to treat the plaintiff, he chose Dr. Dan Cullan to perform the left hand surgery. Filing No. 39, at ECF p.8. Again, Tyson agreed to the change of doctor and authorized Dr. Cullan to perform surgery. Filing No. 42-6. Dr. Cullan performed surgery on the left wrist on May 13, 2013. Filing No. 37, at ECF p.6. Dr. Cullan released the plaintiff to work with a five-pound restriction on his left hand on May 20, 2013. Id. Dr. Cullan did not place any restrictions on the plaintiff's right hand. Id.

Tyson granted the plaintiff a medical leave of absence for hernia surgery from March 27, 2013 through April 9, 2013. Filing No. 39. Tyson extended the leave through May 6, 2013, based on updated medical documentation provided by Dr. Buser. Filing No. 44-6. Tyson extended the leave a second time through May 13, 2013, again based on updated medical documentation provided by Dr. Buser. Filing No. 44-7.

On May 8, 2013, Tyson's corporate computerized leave of absence monitoring system automatically issued a written reminder to the plaintiff advising him that his leave of absence was to expire on May 13, 2013, and that he needed to return to work on that day or submit updated medical documentation if he was unable to return to work. Filing No. 41-12. The plaintiff did not return to work or provide any updated medical documentation by May 13, 2013. Filing No. 39, at ECF p.17.

Tyson sent a letter to the plaintiff on May 14, 2013, one day after his medical leave of absence expired, informing the plaintiff that Tyson had not received medical documentation required to extend his leave. Filing No. 41-13. Although the plaintiff had failed to return to work and was in violation of Tyson's leave of absence policy, Tyson extended his authorized leave until May 21, 2013, giving the plaintiff five additional days to provide updated medical documentation. Id. Tyson told the plaintiff that if he did not provide medical documentation or contact Tyson to discuss his status by May 21, 2013, Tyson would terminate him. Id.

On May 15, 2013, Tyson's corporate computerized leave of absence monitoring system automatically issued a written reminder to the plaintiff advising him that his leave of absence was to expire on May 21, 2013 and that he needed to return to work on that day or submit updated medical documentation if he needed to extend his leave. Filing No. 41-14.

On May 17, 2013, the plaintiff took a handwritten letter to human resources stating that he had an upcoming doctor's appointment. Filing No. 43-1. The letter said surgery was recommended for his right hand and that his next appointment was May 29, 2013. Id. The letter requested an extension of leave until June 5, 2013. Id. The letter did not include any medical documentation to support an extension of his medical leave of absence. Id. The plaintiff did not request use of vacation or personal leave even though his approved medical leave of absence was set to expire. Id.

On May 23, 2013, after the plaintiff's leave of absence had expired, Tyson received a facsimiled letter from Dr. Cullan, dated May 8, 2013, indicating that the plaintiff needed to be off work from May 13, 2013 until May 20, 2013, due to right carpal tunnel surgery. Filing No. 42-9. This letter indicated that the plaintiff could return to work on May 20, 2013 with restricted use of his left hand. Id. Tyson sent a letter on May 28, 2013, via facsimile, to the plaintiff's attorney stating that the plaintiff failed to return to work on May 20, 2013. Filing No. 42-10. The letter stated that the plaintiff needed to report to health services for job placement. Id.

By May 29, 2013, the plaintiff had accumulated more than fourteen attendance points based in part on his unexcused absences since May 21, 2013. Filing No. 39, at ECF pp.20-21. Because the plaintiff had failed to return to work and failed to provide medical documentation to support an extension of his leave, Tyson terminated the plaintiff. Filing No. 39, at ECF p.21. On June 4, 2013, Tyson sent a final letter to the plaintiff explaining that his leave had expired on May 21, 2013 and that he had failed to return to work or provide updated medical information for an extension of leave. Filing No. 41-16. Tyson stated that if there was a valid reason or special circumstances that had prevented the plaintiff from returning to work or providing medical documentation that the plaintiff needed to call Tyson to discuss it. Id. After June 4, 2013, the plaintiff did not contact Tyson to discuss the termination notices. Filing No. 46-1, at ECF p.80. The plaintiff's attorney contacted Tyson, via email, telling Tyson to reinstate the ...


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