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Jallow v. Kraft Foods Global, Inc.

United States District Court, W.D. Wisconsin

July 14, 2016

EBRIMA JALLOW, Plaintiff,
v.
KRAFT FOODS GLOBAL, INC., Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge.

         Plaintiff Ebrima Jallow asserts claims for interference and retaliation under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., against his former employer defendant Kraft Foods Global, Inc. Pending before the court is defendant Kraft's motion for summary judgment. (Dkt. #11.) Because the court finds that plaintiff has failed to offer sufficient evidence from which a reasonable jury could find that he was eligible for FMLA leave in late April 2013, the court will grant defendant's motion, enter judgment in its favor on both FMLA claims, and close this case.

         UNDISPUTED FACTS[1]

         A. The Parties

         Plaintiff Ebrima Jallow worked at defendant Kraft's Oscar Meyer facility in Madison, Wisconsin from May 14, 2001, until April 26, 2013. During his employment, Jallow held various positions, but for the majority of his tenure, he worked in the Sanitation Department. As a member of that department, Jallow worked in other departments, including the JCON1, KS1, Alkar and Saran Tube departments, as well as in the "roustabout position, " which involves covering a variety of jobs within the Sanitation Department as a replacement for other employees who are on vacation or out sick.

         Luke Wiedenfeld was the supervisor of the Sanitation Department during Jallow's employment. Laura Newman was the Assistant Human Resources Manager at Kraft's Madison facility in 2013. Her job responsibilities included reviewing FMLA requests and supporting employee relations within the Sanitation Department.

         B. Plaintiff's FMLA Leave History at Kraft

         Over the period of his employment with Kraft, Jallow requested and received FMLA leave on numerous occasions, including for the birth of a child and for his own health conditions, including hyperthyroidism. Based on past experience, Jallow testified at his deposition that he understood Kraft's FMLA policy allowed two days from an employee's return to work to request an FMLA absence, and then fourteen days to submit completed FMLA paperwork to Laura Newman in human resources. Jallow could recall only one occasion during his employment when he requested FMLA leave and the request was denied because he failed to make his request within two days of returning to work.[2]

         C. Jallow's 2013 Absences

         In the first four months of 2013, Jallow missed 35 days of work, with 30 of those absences occurring in March and April. Except for his March 4-6, 2013, absence, plaintiff did not request FMLA leave for any absences. In March 2013, Kraft issued a written warning to plaintiff regarding his poor attendance during that month, putting him on notice that his attendance record was "unacceptable, and must be improved." (Def.'s PFOFs (dkt. #13) ¶ 39.)[3]

         D. Plaintiff's Position and Start Time

         Jallow's shift start time varied at different points in his career, though it was his duty to find out what his start time for the following day would be. (Jallow Depo. (dkt. #16) 74.) The parties dispute what Jallow's start time was on April 24 and 25, 2016. While plaintiff contends that his start time was 10:00 p.m., Kraft contends that it was 7:00 p.m., largely relying on the fact that Jallow's start time for every day he worked in 2013 was 7:00 p.m., except for three days when it was 9:00 p.m., and that on a March 4-6, 2013, FMLA certification form, Jallow indicated that his regular shift began at 7:00 p.m. (Def.'s PFOFs (dkt. #13) ¶¶ 9-12.) Plaintiff acknowledges that his start time for much of 2013 was 7:00 p.m., because he was covering a temporary vacancy, but disputes that this this was his start time in late April 2013.

         In its response to defendant's motion for summary judgment, plaintiff posits that he served in the roustabout position in 2013, and that position had a flexible starting time between 3:00 p.m. and 11:00 p.m., depending on whether there was a temporary vacancy within the Sanitation Department. Defendant, however, asserts in its reply that he was no longer in a roustabout position in April 2013. Instead, on October 8, 2012, Jallow signed up for and won the saran tube/classics position, which he began working on December 18, 2012.[4] Still, defendant's evidence stops short of establishing a set start time for the saran tube/classics position of 7:00 p.m., and indeed, Jallow testified during his deposition that he did not always start at 7:00 p.m. in the saran tube department. (Jallow Depo. (dkt. #16) 24.)

         E. Plaintiff's Termination from Kraft

         Plaintiff was absent from Kraft the entire workweek beginning Monday, April 22, 2013. Jallow testified at his deposition that he had a cold that week, and he was "[j]ust generally tired and taking some meds which were . . . making me drowsy." (Def.'s PFOFs (dkt. #13) ¶ 42.) Jallow further explained that he was suffering from "[a] common cold [that] was there usually; [y]eah, some of those symptoms, " claiming that he was unable to perform his job at Kraft because he "could not do anything that physical." (Id.)

         As described above, Kraft maintains that his shift began at 7:00 p.m. each day that week, and there is no dispute that Jallow called the Absenteeism Reporting Service ("ARS") at 4:37 p.m. on April 22, to report that he was sick and would not be coming to work. Jallow also visited an urgent care clinic at 6:30 p.m. that night for "Cough and/or Chest Congestion" and was diagnosed with "Cough" and "Nasal congestion." (Def.'s PFOFs (dkt. #13) ¶ 45.) On April 23, Jallow also called the ARS at 4:51 p.m. to report that he was too sick to come into work. On April 24, plaintiff waited until 8:10 p.m. to call ARS and report that he was sick again and would not be coming into work. On April 25, plaintiff did not call until 9:11 p.m. to report that he was too sick to come into work yet again. Also on April 25, Jallow returned to the urgent care clinic at 6:12 p.m. for the same cold symptoms.

         Having failed to call ARS on April 24 and 25 before 7:00 p.m. -- the start of his shift, at least according to defendants -- Jallow accumulated two consecutive AWOL/Unexcused absences under the Attendance Policy. While plaintiff concedes that a failure to call before his shift on those two days would constitute two AWOL/Unexcused absences, he contends that his shift did not begin until 10:00 p.m., and therefore that his calls to ARS were made before the start of his shift.

         According to the Attendance Policy, two consecutive AWOL/Unexcused absences are grounds for termination. As such, Kraft terminated plaintiff's employment on April 26, 2013. That same day, Kraft sent a termination letter invoking its policy to both Jallow and the Union, and Jallow learned of his termination the same day from the Union.

         On April 29, 2013, the Union filed a grievance on Jallow's behalf. Jallow exhausted all levels of the grievance process. At the grievance hearings, Jallow stated that he did not know what time his shift started on the days in question and that he may have been asleep due to his medications. Jallow also mentioned knee surgery and being at the doctor's office as possible reasons for his failure to call in before ...


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