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Nelson v. Ceramtec North America Corp.

United States District Court, D. South Carolina, Greenville Division

August 11, 2017

Chris Nelson, Plaintiff,
v.
Ceramtec North America Corp., Defendant.

          OPINION & ORDER

          Henry M. Herlong, Jr. Senior United States District Judge

         This matter is before the court for review of the Report and Recommendation of United States Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina.[1] Chris Nelson (“Nelson”) alleges violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. Nelson moves for partial summary judgment and to strike the affidavit of John Jones (“Jones”). Defendant Ceramtec North America Corp. (“Ceramtec”) moves for summary judgment and an extension of time to file, amend, and exchange Rule 26(a)(3) Pretrial Disclosures. In her Report and Recommendation, Magistrate Judge Austin recommends denying Nelson's motion to strike and for partial summary judgment, denying Ceramtec's motion for summary judgment, and granting Ceramtec's motion for an extension of time.

         I. Factual and Procedural History

         Nelson was employed by Ceramtec as a grinding set up operator from August 25, 2014, until January 17, 2016. (Def. Mot. Summ. J. Ex. A (Ceramtec Docs. 2), ECF No. 58-2); (Pl. Resp. Opp'n Def. Mot. Summ. J. Ex. 12 (Change of Status Form), ECF No. 60-12.) During that time, Nelson worked twelve-hour shifts from 7:00 p.m. to 7:00 a.m., rotating different days each week. (Pl. Resp. Opp'n Def. Mot. Summ. J. Ex. 2 (Work Schedule), ECF No. 60-2).

         On January 7, 2016, Nelson's spouse informed his managers that Nelson was unable to work that evening because he had been transported to the emergency room due to illness. (Def. Mot. Summ. J. Ex. A (Ceramtec Docs. 83), ECF No. 58-2.) The following day, Nelson informed his managers that he needed immediate surgery and was unable to work that day. (Id. Ex. A (Ceramtec Docs. 83), ECF No. 58-2.) On January 11, 2016, Nelson underwent a lithotripsy to remove a kidney stone. (Id. Ex. A (Ceramtec Docs. 61), ECF No. 58-2.) The same day, Ceramtec mailed Nelson documentation regarding his eligibility for FMLA leave and forms to certify his FMLA leave. (Id. Ex. A (Ceramtec Docs. 51-59), ECF No. 58-2.)

         On January 17, 2016, Lee Roy Palmer (“Palmer”), a production manager at Ceramtec, changed Nelson's position from a grade four grinding set up operator to a grade three kiln operator. (Pl. Resp. Opp'n Def. Mot. Summ. J. Ex. 12 (Change of Status Form), ECF No. 60-12.) Palmer requested that John Slocum (“Slocum”), Nelson's supervisor, inform Nelson that he had been transferred to the kiln department, effective January 21, 2017. (Id. Ex. 15 (Palmer email), ECF No. 60-15.) Additionally, Nelson's work schedule was changed to 11:00 p.m. to 7:00 a.m., Monday through Friday. (Id. Ex. 15 (Palmer email), ECF No. 60-15.) Palmer further instructed Slocum that Nelson would not actually operate the kilns, but would instead “load, unload and clean up.” (Id. Ex. 15 (Palmer email), ECF No. 60-15.)

         Slocum informed Nelson of the change when he reported to work on January 21, 2016. (Def. Mot. Summ. J. Ex. C (Slocum Dep. 46-47), ECF No. 58-4.) Slocum stated that Nelson became upset and requested to speak with Palmer. (Id. Ex. C (Slocum Dep. 47), ECF No. 58-4.) Slocum advised Nelson to wait until the next day to calm down prior to speaking with Palmer. (Id. Ex. C (Slocum Dep. 47), ECF No. 58-4.) However, Nelson insisted on speaking with Palmer. (Id. Ex. C (Slocum Dep. 47), ECF No. 58-4.) Later the same evening, Nelson was able to speak with Palmer by telephone and stated that he thought the change in position was not fair, and that he could not accomodate the new schedule because it would interfere with his responsibilities as a parent. (Pl. Resp. Opp'n Def. Mot. Summ. J. Ex. 3 (Nelson Decl.), ECF No. 60-3); (Def. Mot. Summ. J. Ex. E (Nelson Dep. 116), ECF No. 58-6.) In response, Palmer informed Nelson that he was being transferred because Palmer needed someone reliable in the grinding area. (Pl. Resp. Opp'n Def. Mot. Summ. J. Ex. B (Palmer Dep. 37) & Ex. E (Nelson Dep. 116), ECF Nos. 58-3 & 58-6.)

         Nelson returned to the kiln area after speaking with Palmer. (Id. Ex. E (Nelson Dep. 116), ECF No. 58-6.) Shortly before 8:00 p.m., Nelson reported to Slocum that he had urinated blood, was experiencing back pain, and needed to leave. (Id. Ex. E (Nelson Dep. 116), ECF No. 58-6.) Slocum acknowledged that Nelson was leaving and informed Nelson that Palmer was willing to work with him on his new work schedule. (Def. Mot. Summ. J. Ex. E (Nelson Dep. 116), ECF No. 58-6.) On January 22, 2016, Nelson sent a text message to Slocum informing him that he would not be at work because he was sick. (Pl. Resp. Opp'n Def. Mot. Summ. J. Ex. 23 (Jan. 22, 2016, Text Messages), ECF No. 60-23.) However, Palmer informed Judie Ulsh (“Ulsh”), Ceramtec's human resources manager, that Nelson could not work due to snow. (Def. Mot. Summ. J. Ex. A (Ceramtec Docs. 72), ECF No. 58-2.) Nelson returned to work his next scheduled shift on January 24, 2016. (Id. Ex. A (Ceramtec Docs. 74), ECF No. 58-2.)

         On January 25, 2016, Palmer asked Ulsh how to code Nelson's partial absence on January 21, 2016. (Id. Ex. A (Ceramtec Docs. 72), ECF No. 58-2.) Ulsh responded that Nelson should not be allowed to return to work until Ceramtec clarified whether Nelson was medically cleared to return. (Id. Ex. A (Ceramtec Docs. 70-71), ECF No. 58-2.) Nelson was subsequently advised not to return to work until Ceramtec determined his status. (Id. Ex. A (Ceramtec Docs. 70), ECF No. 58-2.)

         On January 26, 2016, Ulsh spoke to Ceramtec employees regarding Nelson's absence on January 21, 2016. (Pl. Resp. Opp'n Def. Mot. Summ. J. Ex. 7 (Ulsh Dep. 40-42), ECF No. 60-7.) Ulsh ultimately recommended that Ceramtec terminate Nelson because he had initially refused to work in the kiln room, become angry, and left work without permission. (Id. Ex. 7 (Ulsh Dep. 40-42), ECF No. 60-7.) Nelson's employment was terminated the same day. (Id. Ex. 7 (Ulsh Dep. 42), ECF No. 60-7.)

         Nelson filed the instant case on February 5, 2016. (Compl., ECF No. 1.) On February 17, 2017, Nelson filed a motion for partial summary judgment. (Pl. Mot. Summ. J., ECF No. 50.) Nelson moved to strike the affidavit of John Jones on March 10, 2017. (Pl. Mot. Strike, ECF No. 56.) On March 13, 2017, Ceramtec moved for summary judgment. (Def. Mot. Summ. J., ECF No. 58.) Ceramtec moved for an extension of time to amend, file, and exchange Rule 26(a)(3) pretrial disclosures on June 16, 2017. (Def. Mot. Extension of Time, ECF No. 67.) Magistrate Judge Austin issued the Report and Recommendation on July 6, 2017, recommending that the court deny Nelson and Ceramtec's motions for summary judgment, deny Nelson's motion to strike, and grant Ceramtec's motion for an extension. (R&R 20, ECF No. 68.) On July 13, 2017, Nelson filed objections to the Report and Recommendation. (Pl. Objs., ECF No. 70.) Ceramtec filed objections on July 19, 2017. (Def. Objs., ECF No. 72.) On July 24, 2017, Nelson responded to Ceramtec's objections. (Pl. Resp. Opp'n Def. Objs., ECF No. 75.) Ceramtec responded to Nelson's objections on July 27, 2017. (Def. Resp. Opp'n Pl. Objs., ECF No. 76.) This matter is ripe for consideration.

         II. Discussion of the Law

         A. Objections

          Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation of the magistrate judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The court must “only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         Nelson and Ceramtec specifically object that the magistrate judge erred in finding that genuine issues of material fact exist as to whether: (1) Ceramtec restored Nelson to an equivalent position; (2) Ceramtec would have changed Nelson's position absent FMLA leave; and (3) Nelson was harmed by Ceramtec's failure to restore him to his original position. (Pl. Objs., generally, ECF No. 70); (Def. Objs., generally, ECF No. 72.) Additionally, Ceramtec objects that the magistrate judge erred in considering Nelson's retaliation claim for failure to reinstate and in determining that there is a genuine issue of material fact as to whether Ceramtec's proffered reasons for terminating Nelson were a pretext. (Def. Objs. 8-14, ECF No. 72.) Lastly, Nelson objects that the magistrate judge erred in finding that he would not be prejudiced by allowing Jones to testify. (Pl. Objs. 9-11, ECF No. 70.)

         B. Motions for Summary Judgment

         1. Summary Judgment Standard

         Partial summary judgment “is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case.” Fed.R.Civ.P. 56 advisory committee's note (1946). Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the ...


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