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Blackwell v. Publix Super Markets, Inc

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

February 20, 2018

Allen L. Blackwell, Plaintiff,
v.
Publix Super Markets, Inc., Defendant.

          OPINION & ORDER

          HENRY M. HERLONG, JR. SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court with the Report and Recommendation of the United States Magistrate Judge Kevin F. McDonald, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina.[1] Allen L. Blackwell (“Blackwell”) alleges violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., for interfering with his rights and retaliatory discharge. Blackwell moved for partial summary judgment as to the interference cause of action on May 10, 2017. Defendant Publix Super Markets, Inc. (“Publix”) filed a response in opposition on June 2, 2017, and Blackwell filed a reply on June 9, 2017. On June 2, 2017, Blackwell filed a motion for partial summary judgment as to Publix's after-acquired evidence defense. Publix filed a response in opposition on June 16, 2016, and Blackwell filed a reply on June 23, 2017. On June 2, 2017, Publix filed a motion for summary judgment. On June 16, 2017, Blackwell filed a response in opposition, and Publix filed a reply on June 22, 2017. In his Report and Recommendation, Magistrate Judge McDonald recommends denying Blackwell's motion for partial summary judgment as to the FMLA interference claim, granting Publix's motion for summary judgment, and dismissing Blackwell's motion for partial summary judgment as to Publix's after-acquired evidence defense as moot. (R&R, ECF No. 56.)

         I. Factual and Procedural History

         Blackwell was hired by Publix on November 15, 2002, as a full-time grocery clerk. (Def. Mot. Summ. J. Ex. A (Pl. Dep. 18, 48), ECF No. 45-2.) Initially, Blackwell was assigned to work at Store No. 0613 in Simpsonville, South Carolina. (Id. Ex. A (Pl. Dep. 18, 48), ECF No. 45-2.) Over the next thirteen years of Blackwell's employment, he was transferred to several Publix stores in the upstate of South Carolina and worked for several different management teams. (Id. Ex. A (Pl. Dep. 19, 67-68, 75), ECF No. 45-2.) Blackwell was eventually assigned to the position of full-time grocery manager at Store No. 1012 in Mauldin, South Carolina. (Id. Ex. A (Pl. Dep. 9-10, 19), ECF No. 45-2.)

         On July 10, 2015, Blackwell's mother delivered a doctor's note to Publix, excusing him from work for “chest pains.” (Id. Ex. A (Ex. 10), ECF No. 45-2.) Blackwell's doctor's note requested FMLA leave from July 10, 2015 to July 20, 2015. (Def. Mot. Summ. J. Ex. A (Ex. 10), ECF No. 45-2.) Blackwell submitted a second doctor's note that requested leave through August 1, 2015. (Id. Ex. A (Ex. 11), ECF No. 45-2.) Blackwell called Publix for his work schedule and returned to work on August 2, 2015. (Id. Ex. A (Pl. Dep. 91, 93, 133), ECF No. 45-2.)

         On the weekend of August 8-9, 2015, Blackwell fell from a ladder and injured his back. (Pl. Mot. Summ. J. Attach. 6 (Pl. Aff. ¶ 7), ECF No. 40-6.) Blackwell's back pain worsened and he went to the doctor on August 11, 2015. (Id. Attach. 6 (Pl. Aff. ¶¶ 8-9), ECF No. 40-6.) Blackwell returned to the doctor for treatment on August 24, August 27, September 8, and October 7, 2015. (Id. Attach. 6 (Pl. Aff. ¶ 9), ECF No. 40-6.) Blackwell testified that he was in serious pain during this time period and only able to engage in very limited physical activity. (Id. Attach. 6 (Pl. Aff. ¶ 10), ECF No. 40-6.)

         Blackwell's mother delivered a series of doctor's notes to Publix requesting medical leave on Blackwell's behalf for the following dates:

1. August 11, 2015, through August 25, 2015;
2. August 24, 2015, through September 7, 2015;
3. September 7, 2015, through September 17, 2015;
4. September 16, 2015, through September 26, 2015; and
5. October 3, 2015, through November 1, 2015.

(Def. Mot. Summ. J. Ex. A (Exs. 11, 14, 16), ECF No. 45-2.) In addition, during the time that Blackwell was on leave, he used vacation time in September that did not count against his FMLA leave. (Pl. Mot. Summ. J. Attach. 7 (Pl. Time Off Report), ECF No. 40-7.) Blackwell used twelve weeks of FMLA-protected leave through November 1, 2015.[2] Blackwell acknowledges that he received the full twelve-week period of leave mandated by the FMLA. (Pl. Mem. Supp. Mot. Summ. J. 2, ECF No. 40-1.)

         Around the end of September or beginning of October 2015, during Blackwell's FMLA leave, store manager Kevin Lieberenz (“Lieberenz”) left a voice mail for Blackwell saying that he needed the store keys and that he had heard from another employee that Blackwell was not returning to work. (Def. Mot. Summ. J. Ex. A (Pl. Dep. 110-23), ECF No. 45-2.) Blackwell alleges that Lieberenz was “hollering” in the voice mail, so he immediately called Lieberenz back to let him know the voice mail was unprofessional and that Lieberenz did not seem concerned about his injury. (Id. Ex. A (Pl. Dep. 110-23), ECF No. 45-2.) According to Blackwell, Lieberenz “got all hotheaded” and hung up, and Blackwell called him back. (Id. Ex. A (Pl. Dep. 110-23), ECF No. 45-2.) Blackwell claims that he asked Lieberenz if he would check Blackwell's FMLA time, and Lieberenz responded that he was “not worried about it, ” hanging up again. (Id. Ex. A (Pl. Dep. 110-23), ECF No. 45-2.)

         During Blackwell's FMLA leave, Publix mailed Blackwell a series of certified letters to notify him of the amount of time he had remaining for FMLA leave:

1. In a letter dated July 22, 2015, Publix informed Blackwell that he had 11.36 weeks of leave remaining;
2. In a letter dated August 21, 2015, Publix informed Blackwell that he had 8.56 weeks of leave remaining;
3. In a letter dated September 22, 2015, Publix informed Blackwell that he had 4.56 weeks of leave remaining;
4. In a letter dated October 13, 2015, Publix informed Blackwell that he had 1.67 weeks of leave remaining;
5. In a letter dated October 21, 2015, Publix informed Blackwell that he had .44 weeks of leave remaining; and
6. In a letter dated October 28, 2015, Publix left the weeks remaining space blank and included a Notice of Rights and Obligations.

(Id. Ex. A (Exs. 12-13, 15, 17-19), ECF No. 45-2.)

         Lieberenz testified that typically when a manager was on FMLA leave, the manager would continue to be scheduled for work, and then the scheduled time would be excused in the company's system, “boot[ing] them off the schedule.” (Pl. Mot. Summ. J. Ex. 3 (Lieberenz Dep. 55), ECF No. 40-3.) When the doctor's note expired, the employee would be scheduled to work for the following week. (Id. Ex. 3 (Lieberenz Dep. 56-57), ECF No. 40-3.) Lieberenz was uncertain whether Blackwell was placed ...


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