United States District Court, D. Delaware
DENNIS H. QUICK, Plaintiff,
PLAYTEX MANUFACTURING, INC., and ENERGIZER PERSONAL CARE, LLC, Defendants.
REPORT AND RECOMMENDATION
CHRISTOPHER J. BURKE, Magistrate Judge.
Plaintiff Dennis H. Quick ("Quick" or "Plaintiff') filed this action against Defendants Playtex Manufacturing, Inc. ("Playtex") and Energizer Personal Care ("Energizer") (collectively, "Defendants"), alleging Defendants violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), and the Family and Medical Leave Act, 28 U.S.C. § 2601 et seq. ("FMLA"). Presently pending before the Court is Defendants' Motion for Summary Judgment ("Motion"). (D.I. 30) For the reasons set forth below, the Court recommends that the Motion be GRANTED.
A. Factual Background
1. Plaintiff's Employment History
Plaintiff began his employment at Playtex in December 1999. (D.I. 1 at ¶ 15) He was employed in Playtex's Gentle Glide department as an electronic technician. (D.I. 33, ex. A at 10-11) At the time of his separation from Playtex in June 2011, Plaintiff was 57 years old, having been born on February 6, 1954. (D.I. 1 at ¶ 11; D.I. 34 at 14 n.2) As of June 2011, Plaintiff had two supervisors: (1) his direct supervisor, Production Superintendent Paul Hendrickson, who was 59 years old; and (2) Senior Maintenance Manager Ed Bleistein, who was 54 years old, and who served as Mr. Hendrickson's supervisor and a remote supervisor of Plaintiff. (D.I. 33, ex. A at 13-14; D.I. 32, Affidavit of Jennifer L. Schandelmeier ("Schandelmeier Aff.") at ¶¶ 11-12)
2. Playtex Policies Implicated in this Matter
Playtex's relevant employee policies are set forth in its September 2009 "Hourly Colleague Handbook[, ] Dover Operations" ("Handbook"). (D.I. 32, ex. 1) The Handbook's first section is titled "General Policies & Procedures"; one of these is Playtex's Attendance Policy, which includes the following definition:
No Call/No Show - A Colleague who fails to report to work and fails to call in will be charged with 2 points of absence. A Colleague, who fails to call in within  one (1) hour after the start of their shift, will be charged with one (1) point. Three consecutive days of No Call/No Show is considered a voluntary resignation.
( Id. at 9 (hereinafter, the "no call/no show policy")) The Attendance Policy also includes the following provision:
If a Colleague is unable to come to work, it is their responsibility to notify their Supervisor as soon as possible, but no later than an hour after the start of their shift. If they are unable to reach their Supervisor, they should leave a message with the Security Guard at [phone number] (Plant 4) or [phone number] (Walker Road Gate).
( Id. at 10)
The Handbook also includes a "Safety & Health" section, which contains the following language in a subsection entitled "Fitness for Duty":
Returning to Work Following a Medical Leave of Absence - Colleagues returning to work  after 12 weeks of either occupational or non-occupational disability must be cleared by the [Safety & Health Specialist] prior to returning to work and will be required to take a Fitness for Duty evaluation.
( Id. at 34) The same section includes the following description of the FMLA:
Family Medial Leave Act (FMLA) - The [FMLA] permits eligible regular or temporary colleagues, whether full-time or part-time, to take up to a total of twelve (12) unpaid weeks away from their jobs per 12 month period due to family, parental and medical leaves of absences.
( Id. at 41)
Lastly, in its "Benefits" section, the Handbook describes how Playtex employees are entitled to receive short-term disability leave, with the duration of such leave being dependant upon the employee's shift type and length of service. ( Id. at 44)
Plaintiff received and reviewed a copy of the Handbook and, as of September 2009, was familiar with the policies referenced above. (D.I. 32, ex. 2; D.I. 33, ex. A at 86)
3. Plaintiff's Tendinitis Surgeries
Plaintiff has undergone three surgeries for tendinitis on his elbows since 2008.
The first surgery, on Plaintiffs right elbow, occurred on or about February 11, 2008. (D.I. 33, ex. A at 35; id., ex. B) Plaintiff took leave from Playtex relating to this surgery, exhausting both his FMLA leave and then his short-term disability leave. ( Id., ex. A at 73) After receiving a "Fitness for Duty" (sometimes referred to as a "Fit for Duty", and hereafter "FFD") evaluation report, Plaintiff returned to work in July 2008. ( Id., ex. B) The only accommodation recommended by a physical therapist was that Plaintiff stretch and be permitted to take occasional rest breaks. ( Id. at PLAYTEX-0010)
Plaintiffs second surgery, this one on his left elbow, occurred in October 2009. ( Id., ex. A at 34) Plaintiff again exhausted his FMLA leave and then his short-term disability leave, and returned to work in March 2010 after receiving an FFD evaluation. ( Id. at 73; id., ex. C) No accommodations were required. ( Id., ex. C at PLAYTEX-003)
Plaintiffs third surgery, on his right elbow again, occurred in January 2011. ( Id., ex. A at 34) Again, Plaintiff exhausted his FMLA leave (which was exhausted as of March 28, 2011) and then his short-term disability leave. ( Id. at 73; Schandelmeier Aff. at ¶ 13) On May 24, 2011, Plaintiffs treating physician informed Plaintiff that he was cleared to return to work on June 5, 2011 with no restrictions. (D.I. 33, ex. A at 63-64; id. at ex. D) Since June 5, 2011 was a Sunday, and Plaintiff began his work week on Mondays, his effective return to work date was June 6, 2011. ( Id., ex. A at 64; D.I. 34 at 4 n.1)
4. Events Leading to the End of Plaintiff's Employment
As noted above, Plaintiff was medically cleared to return to work on June 6, 2011. On May 31, 2011, Plaintiff spoke with Chris Byrd, the former Safety and Health Specialist with Playtex. (D.I. 33, ex. A at 66-67; id., ex. E) Mr. Byrd gave Plaintiff the phone number for a health care provider, so that Plaintiff could call the provider and schedule his FFD evaluation. ( Id. ) Pursuant to the language in the "Fitness for Duty" subsection of the Handbook, Plaintiff was required to successfully complete an FFD evaluation before returning to work at Playtex. (D.I. 32, ex. 1 at 34; D.I. 35, ex. B at 11)
In the meantime, Playtex's third-party disability administrator, American General ("AG") had been notified that Plaintiff was cleared to return to work on June 6, 2011. (D.I. 35, ex. Cat 7) AG in turn notified Playtex of this, and Playtex's management thus expected Plaintiff to return to work on June 6. ( Id. ) Plaintiff, however, did not contact the health care provider, prior to June 6, in order to set up the FFD evaluation. (D.I. 33, ex. A at 68-69) And so, having not scheduled or completed the FFD evaluation, Plaintiff did not show up for work on June 6. ( Id. at 92)
On that day, after Plaintiff did not report for work at his normal start time (3:00 p.m.), Playtex's senior Human Resources associate Gina Sullivan called AG, to see whether Plaintiffs leave had been extended. (D.I. 35, ex. Cat 7; Schandelmeier Aff. at ¶ 14) Informed that it had not, Ms. Sullivan updated Plaintiffs supervisor, Mr. Hendrickson. (D.I. 35, ex. Cat 7) Mr. Hendrickson then called Plaintiff at Plaintiffs home to find out why he was not at work. ( Id .; id., ex. Eat 33; see also D.I. 33, ex. A at 92) Plaintiff states that on this call, he told Mr. Hendrickson that he had not scheduled the FFD evaluation because his mother had been ill and because his dog had recently died. (D.I. 33, ex. A at 93; see also D.I. 35, ex. E at 33) Plaintiff assured Mr. Hendrickson that he would call to schedule the evaluation "as soon as possible[.]" (D.L 33, ex. A at 93) Plaintiff states that on this call, Mr. Hendrickson told Plaintiff to "keep in touch" with him. ( Id. at 95) For his part, Mr. Hendrickson recalls telling Plaintiff that since Plaintiff had been released for duty, he had been expected at work on June 6, and that he further advised Plaintiff to "keep [him] in the loop." (D.I. 35, ex. Eat 33)
On Tuesday, June 7, 2011, Plaintiff spoke with representatives at the health care provider, but was told that the soonest that the FFD evaluation could be scheduled was on Thursday, June 9, 2011, in the early afternoon. (D.I. 33, ex. A at 93-94) Plaintiff contacted an AG representative on June 7 to advise AG of the status of his FFD evaluation, but did not contact Mr. Hendrickson nor anyone else at Playtex during the time period between that day and June 9. ( Id. at 95-96) And since he had not yet taken or passed his FFD evaluation, Plaintiff did not show up for work at Playtex on June 7, June 8 or June 9, 2011. ( Id. at 96-97)
On June 8, 2011, Playtex's Human Resources Director, Jennifer Schandelmeier, received an e-mail from Mr. Bleistein. In the e-mail, Mr. Bleistein informed Ms. Schandelmeier of most the events of June 6-8, 2011 summarized above, noted that Plaintiff was "not a role model employee" who "consistently year after year [was] a poor performer" and asked for guidance as to what to do. (D.I. 35, ex. F) Ms. Schandelmeier wrote that "[t]omorrow at 3:00 [p.m., Plaintiff's normal start time] he's terminated if we haven't heard from him under our 3 days no call no show policy." ( Id. )
As noted above, Plaintiff did not show up for work on June 9, 2011. At 2:56 p.m on that date, Ms. Sullivan sent an e-mail to a colleague, copying Ms. Schandelmeier, indicating that Plaintiff was "terminated effective today, June 9th." ( Id., ex. Gat PLAYTEX-0050) At 3:35 p.m., Mr. Bleistein approved Plaintiff's termination. ( Id., ex. D at 31) Meanwhile, on that same afternoon, Plaintiff participated in and passed his FFD evaluation. (D.I. 33, ex. A at 94)
The next day, June 10, 2011, Ms. Schandelmeier sent Plaintiff a letter stating that Plaintiff had "failed to call into work on Tuesday 6/7/11, Wednesday 6/8/11 and Thursday, 6/9/11, which makes three days of no call/no show." (D.I. 32, ex. 9) She wrote that in light of the no call/no show policy, "[a]n employee who remains absent for three consecutive days without notifying their supervisor/manager will be deemed to have terminated his/her employment" and that, in light of the events of June 7-9, "your employment with Playtex has been terminated." ( Id. )
On the same day, June 10, the physical therapist who completed Plaintiffs FFD evaluation forwarded it by e-mail to Ms. Sullivan. (D.I. 35, ex. H) Ms. Sullivan in turn forwarded the evaluation form to Ms. Schandelmeier, along with an e-mail stating simply "OH NO[.]" ( Id. )
Plaintiff also did not show up for work on June 10. (D.I. 33, ex. A at 51-52; 99-100) Plaintiff asserts that he had previously requested to take June 10 as a vacation day back in May 2011, but never received confirmation from a Playtex team leader, Stacey Drake, as to whether that request had been granted. ( Id .; see also Schandelmeier Aff. at ¶ 10) In his deposition, Plaintiff appeared to suggest that the reason he did not report to work on June 10 was that it had "really ticked [him] off' that he had twice left messages for Mr. Drake in May 2011 regarding ...