United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT KAISER'S MOTION FOR SUMMARY JUDGMENT
LONNY R. SUKO, Senior District Judge.
BEFORE THE COURT is Defendant Kaiser's Motion For Summary Judgment(ECF No. 14), filed on November 6, 2013. A hearing was held March 6, 2014 in Yakima, Washington. Lawrence Jay Kuznetz participated on behalf of the Plaintiff; William M. Symmes participated on behalf of Defendants. At the close of the hearing, the Court took the matter under advisement.
Defendant Kaiser Aluminum moves for an order dismissing the case based on lawful termination of Plaintiff (a unionized United Steel Worker) for failure to adhere to the Company's Sickness & Accident (S & A) policies and Absentee Policy. Defendant argues Plaintiff Yeager failed to obtain the requisite certification to excuse his absence between February 5, 2009 and April 24, 2009. Further, Defendant asserts, Plaintiff was not terminated because of discrimination as he complains-but because he never provided Occupational Health Solutions, Inc. (OHS), Kaiser, or his Union with a medical certification to excuse this 11-week, unsubstantiated absence despite multiple requests and warnings from Kaiser, OHS, and the Union. As a result, Kaiser terminated Plaintiff on June 27, 2009 for his unexcused absence between February 5 - April 23, 2009.
While the parties assert different factual scenarios, the facts necessary for resolution of this case on summary judgment are not disputed and will only be abbreviated herein. Plaintiff Luke Yeager ("Plaintiff" or "Mr. Yeager") is a resident of Stevens County, Washington, and was a production employee of Kaiser from May 2007, until June 27, 2009. Defendant Kaiser owns and operates an aluminum fabrication plant in Spokane County, Washington.
A. Union Protocols
All of the hourly production workers at the plant, including Plaintiff, are members of Local 338 of the United Steelworkers (the "Union"). Kaiser and the Union have entered into various labor agreements, which govern the terms and conditions of employment for the production workers at the Trentwood Works. The principal agreement between Kaiser Aluminum and the Union is called the Master Labor Agreement (a/k/a the collective bargaining agreement and hereinafter referred to as "CBA"), which governs rates of pay, hours of work, and conditions of employment with respect to the hourly production workforce at the Trentwood Works.
Article 11 of the CBA prevents Kaiser from terminating any hourly production worker unless it has "proper cause" to do so. If an hourly production worker or the Union believes that Kaiser has terminated an employee without "proper cause, " then pursuant to Article 10 of the CBA, the employee or the Union may file a grievance challenging Kaiser's decision. If a grievance is filed, the Union and the Company commence the multi-step grievance process required by Article 13 of the CBA in an effort to resolve their differences. Pursuant to Article 13 of the CBA, in most cases, the terminated employee remains on the job until the grievance is finally resolved.
If the grievance process does not resolve the differences with respect to the termination of an employee, the CBA dictates the final step in the Grievance process. The question of whether Kaiser had "proper cause" to terminate an employee is submitted to an impartial arbitrator who is mutually selected by Kaiser and the Union. At the arbitration hearing, Kaiser has the burden to persuade the arbitrator that it had proper cause to terminate the employee. Under Article 10 of the CBA, the parties have agreed that the arbitrator's decision is final and binding on both the Company and the Union.
Pursuant to Article 11 of the CBA, Kaiser may exercise its Management Rights to promulgate various policies to govern the workforce at Trentwood. One such policy is the Kaiser Aluminum - Trentwood Works Absentee Policy.
B. Absentee Policy and S & A Benefits
The Absentee Policy is a "no-fault" policy based upon points. In other words, barring a few exceptions, employees who are absent from work receive points against their attendance record. Depending upon the reason, the points against their record may range from 1-3. An accumulation of 9 points in a 26-week period will result in discipline. The first time an employee receives 9 points in 26 weeks, he or she receives a written warning. The second time an employee accumulates 9 points in a 26-week period, he or she receives a written warning and a 3 day suspension. The third time it occurs, the employee receives a 5-day suspension pending discharge.
Certain absences are exempt from point accumulation. Examples of absences which do not result in points or any adverse consequences are: (1) absences certified to be the result of an industrial injury or illness; (2) approved vacations; (3) official union business; (4) military service; (5) jury duty or bereavement leave; (6) authorized personal leave of absence under the CBA; (7) authorized educational leave of absence under the CBA; and (8) FMLA/disability leave explicitly certified as such by a health care provider. But when an employee's absence is not for an exempt reason as set forth above, his or her absence results in the accumulation of 2 points for each day the employee is absent. If an employee is absent for 2 or more days while the employee is under the care of a doctor, and the doctor certifies that the employee was too ill to report for work, the employee will receive only 2 points for the entire period of absence. The Absentee Policy also provides that "consecutive absences of one scheduled workweek without notification shall result in a voluntary separation from the payroll."
An employee will receive 3 points (as opposed to 2) if the employee fails to report off work pursuant to the Absentee Policy. Pursuant to the Absentee Policy and Section 10-02 of the Local Labor Agreement between Kaiser and the Union, a Union worker is required to contact the Guard Office at least one hour prior to the scheduled start of the shift. The Guard Office will then provide Human Resources a daily report of employees who have reported off from work. If an employee is absent or anticipates being absent for 3 or more days due to a reported illness or injury, Human Resources will work through Occupational Health Solutions ("OHS"), located in Spokane, to monitor the employee's absence.
Kaiser contracts with OHS as a third-party vendor to manage all of the occupational and non-occupational illnesses and injuries of the hourly workforce. In this role, OHS provides Nurse Case Managers ("NCM") to work as liaisons between the Union workers and Kaiser's Human Resources Department. Employees are informed about OHS, the NCMs, and their role during mandatory employee orientation just after being hired at Kaiser. Union employees are instructed on how to coordinate sick and injury leave with OHS.
As is relevant to this matter, the NCM may receive telephone calls from hourly production workers who have been injured or who are suffering from an illness that the employee believes precludes him/her from performing his/her job duties for more than 2 days. The NCM does not examine or diagnose the employee. The NCM makes a determination whether to excuse the hourly production worker from going to work based upon a telephone conversation with the worker. However in doing so, NCM gives the employee the benefit of the doubt and accepts what the employee is saying as true. If the NCM determines that the employee should be off work for more than 3 days, the NCM conditionally places the hourly production worker on sick leave and notifies the Company's Human Resources Department that the employee has been placed on sick leave. The decision of the NCM merely initiates the sick leave process.
Of significance, the NCM does not tell the Company what condition the employee has that necessitates his or her absence from work. Without an executed release from the employee, the Privacy Rule in the Health Insurance Portability and Accountability Act ("HIPAA") and Article 14 of the CBA prevent any discussion between the NCM and the Company in this regard. After the employee is placed on sick leave, the NCM's role is to monitor the employee's progress.
In conjunction with the hourly production worker and his or her health care provider, the NCM receives the medical certification to initially authorize the leave, and upon the employee's recovery, to clear the employee back to work. Because the NCM does not examine or diagnose an employee's medical condition, it is not the NCM's role to certify an employee's absence from work. It is the NCM's job to receive and review the employee's medical certification obtained by the employee from the employee's health care provider on behalf of Human Resources.
Article 15 of the CBA provides certain Group Insurance benefits to Kaiser's Union workforce. In accordance with this provision of the CBA, Kaiser provides the Union workforce Sickness and Accident Benefits ("S & A"). S & A benefits are cash benefits paid weekly to any Union worker who is certified by a licensed physician as being unable to work due to a medical condition. Benefits are not payable for any period during which the employee is not under the care of a licensed physician. Trentwood's Human Resources Department sends a letter to an hourly production worker who has been placed on sick leave, informing the employee of his or her obligations to coordinate with a NCM to obtain the requisite medical certification, verifying the absence is due to a medical condition and that he or she is unable to work. It is ...