Fields v. Cardinal Health et al

MOTION for Summary Judgment

W.D. Ky.January 31, 2017

Case 3:16-cv-00100-DJH-CHL Document 29 Filed 01/31/17 Page 1 of 2 PageID #: 473 CERTIFICATE OF SERVICE I certify that on January 31, 2017, the foregoing Motion for Summary Judgment and Memorandum in Support were electronically filed with the CM/ECF system, which will serve electronic notice on the following counsel of record: Samuel G. Hayward, Jr. Adams Hayward & Welsh 4036 Preston Highway Louisville, KY 40213 /s/ Patricia Pryor Patricia Pryor Case 3:16-cv-00100-DJH-CHL Document 29 Filed 01/31/17 Page 2 of 2 PageID #: 474 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY *Electronically Filed* ERIC FIELDS Plaintiff, v. CARDINAL HEALTH, et al. Defendants. : : : : : : : : : : Case No. 3:16-cv-00100-DJH Judge David J. Hale MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Cardinal Health respectfully submits that summary judgment is appropriate on each of Plaintiff’s claims. This is a classic example of a Facebook post exposing a fraudulent request for a leave of absence. When Plaintiff was denied two days of requested vacation because other employees were already scheduled off, he later requested (and received) the same two days as a leave of absence to allegedly take his domestic partner to two doctor appointments. Unfortunately for him, a co-worker saw his son’s Facebook posts indicating that the family was actually in Florida enjoying their vacation. Cardinal Health gave Plaintiff the opportunity to explain and provide doctor notes from the two appointments, which he failed to sufficiently do. Instead he claimed they went to a different doctor than originally requested and then suggested that maybe it was just a prescription pick up rather than an actual appointment. Plaintiff does not dispute that Cardinal Health had the honest belief that he had lied to them and falsified the reason for his absence. Plaintiff, nevertheless, tries to allege that his termination was Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 1 of 15 PageID #: 475 2 discriminatory or retaliatory. His claims are without merit. There is no genuine issue of material fact, as this motion is based almost entirely on Plaintiff’s own deposition. He admits that he never complained until after he knew his job was in jeopardy and there is no evidence of racial, gender or retaliatory bias. Defendant Cardinal Health respectfully requests that this Court grant its Motion for Summary Judgment. II. PROCEDURAL POSTURE Plaintiff filed this lawsuit on January 26, 2016, alleging a myriad of claims against Cardinal Health and a former human resources employee Michael Shaw,1 including (1) racial discrimination under Kentucky Revised Statute (“KRS”) 344, (2) familial status discrimination under KRS 344, (3) gender discrimination under KRS 344, (4) promissory estoppel, (5) negligent hire/retention/supervision, (6) racial retaliation under KRS 344, (7) gender retaliation under KRS 344, and (8) FMLA retaliation. The Court dismissed Counts II (familial status discrimination), IV (promissory estoppel) and V (negligent hire/retention/supervision) on May 17, 2016, following Defendant’s motion to dismiss. (Doc. 16) On November 14, 2016, Cardinal Health took Plaintiff’s deposition, during which Plaintiff disclosed, for the first time, that he had filed for bankruptcy. Defendant immediately moved to dismiss Plaintiff’s remaining claims based on judicial estoppel. Plaintiff’s failure to disclose this lawsuit in his bankruptcy petition prevents him from continuing to pursue these claims. (Doc. 18) That motion is fully dispositive of this action. To the extent that that motion does not fully dispose of this matter, Cardinal Health respectfully submits that summary judgment is nevertheless appropriate on the merits of each of Plaintiff’s claims. 1 Defendant Michael Shaw has never been served. The claims against him should be dismissed for all the reasons that they should be dismissed against Cardinal Health and additionally for lack of service. See Fed. R. Civ. P. 4(m). Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 2 of 15 PageID #: 476 3 III. STATEMENT OF UNDISPUTED FACTS A. Cardinal Health Stresses the Importance of Honesty Among its Employees. Cardinal Health stresses integrity and honesty in all dealings to its employees. Cardinal Health’s Standards of Business Conduct require every employee to act with integrity and specifically prohibit falsifying documents or providing false information. (Shaw Dec. ¶ 2)2 The Standards of Business Conduct booklet is provided to employees upon hire and each year employees are required to certify that they have read it. (Id.) Plaintiff recalled receiving the Standards of Business Conduct “quite a few times.” (Pl. Dep. 33; Pl. Dep. Ex. 4)3 Cardinal Health employed Plaintiff as a Customer Service Representative. (Pl. Dep. 30- 31) Plaintiff admitted that his job was “very important work.” (Pl. Dep. 32) He helped pharmacists, doctors, and nurses (Cardinal Health’s customers), obtain medication and other medical supplies needed for their patients. (Pl. Dep. 31-32) He testified that sometimes there were emergencies where a patient would be very sick or even on their deathbed and need a medicine right away. (Pl. Dep. 32) Plaintiff admitted that honesty, teamwork and adequate staffing were vital to his job. (Id.) He testified that honesty is “always important in the workplace” and that failing to be honest could result in termination. (Pl. Dep. 32, 104) B. Plaintiff had a History of Performance Issues. Plaintiff had a history of performance issues, primarily attendance related. During his employment, he received ten corrective actions for attendance issues. (Pl. Dep. Exs. 34-36, 38- 44) On November 12, 2013, he was placed on final written warning for his attendance. (Pl. Dep. Ex. 44) 2 The Declaration of Michael Shaw is attached as Exhibit A. 3 Plaintiff’s deposition transcript has been filed separately with the Court. (Doc. 28) Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 3 of 15 PageID #: 477 4 C. Cardinal Health Provided Plaintiff with Multiple Leaves of Absence. Cardinal Health provides FMLA leave to those who are eligible. (Bock Dec. ¶ 2)4 It also provides non-FMLA leave for certain circumstances that are not covered by the FMLA. (Id.) During Plaintiff’s employment, Cardinal Health granted Plaintiff multiple leaves of absence to care for himself, for a foster child and for his domestic partner, Kevin Wright. (Pl. Dep. 79-80, 101, 155; Bock. Dec. ¶ 4) Plaintiff admitted that he received all of the time off that he requested and no one ever said anything negative about his taking time off. (Pl. Dep. 79, 101) In January 2014, Plaintiff requested time off to care for Wright, while Wright recovered from a gastric by-pass surgery. (Pl. Dep. 72; Pl. Dep. Ex. 10) Cardinal Health granted Plaintiff the requested two-week leave and approved two absences that occurred before the surgery. (Pl. Dep. Ex. 11) The absences were not covered by FMLA because Plaintiff and Wright were not legally married at the time. (Pl. Dep. 72, 74; Pl. Dep. Ex. 7; Bock Decl. ¶ 5) Cardinal Health approved the time as an ordinary leave of absence. (Pl. Dep. Ex. 11; Bock Decl. ¶ 5) Plaintiff also requested and received leave to take Wright to one appointment six weeks after surgery and one appointment every 90 days. (Pl. Dep. 82; Pl. Dep. Ex. 13) D. Plaintiff Could Not Get Two of the Five Days He Requested for Vacation Because Other Employees had Already Scheduled Off. In January 2014, Plaintiff submitted a request for vacation from March 31-April 4, 2014, for his son’s spring break week. (Pl. Dep. 58-60; Shaw Dec. ¶ 3) Plaintiff was only approved for the first three requested days (March 31-April 2). (Pl. Dep. 58-60; Shaw Dec. ¶ 3) His request for April 3 and April 4 was denied because other employees were already scheduled off. (Pl. Dep. 58-60; Shaw Dec. ¶ 3) 4 The Declaration of Emily Bock is attached as Exhibit B. Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 4 of 15 PageID #: 478 5 E. Plaintiff Requested Leave for April 3 and April 4 (the Two Days that were Denied from his Vacation Request) to Take his Partner to See a Nutritionist and a Surgeon. Cardinal Health Approved the Time off for that Specific Purpose. After being denied April 3 and 4 as vacation days, Plaintiff asked to take leave on April 3 and April 4 to take Wright to a nutritionist appointment and a follow-up appointment with his surgeon. (Pl. Dep. Ex. 14) He told Emily Bock, a member of Cardinal Health’s leave administration team, that he had tried to preschedule this time off electronically but because so many people were already scheduled off or had FMLA, he was unable to do so, and he asked Bock if she could arrange it for him. (Id.) Bock noted that Plaintiff’s original doctor certification only provided for one appointment every 90 days. (Pl. Dep. Ex. 12; Bock Decl. ¶ 8) Nevertheless, after some discussion, Cardinal Health allowed Plaintiff’s request for leave on April 3 and April 4 to take Wright to a nutritionist appointment and follow-up appointment with his surgeon. (Pl. Dep. Ex. 7) Plaintiff told Bock that he would try to get doctor notes from each of the appointments. (Pl. Dep. 92-93; Pl. Dep. Ex. 7) F. Plaintiff Went to Florida with His Family During His Son’s Spring Break, His Son Posted Two Facebook Posts (Which Were Seen by a Co-worker) that Indicated that they Stayed in Florida until Friday, April 4. Plaintiff was off work the entire week of March 31 to April 4, 2014, three days for vacation and two days were supposed to be for leave to take his domestic partner to the doctor. (Pl. Dep. 58-62, 102) While he was gone, a co-worker noticed a Facebook post by Plaintiff’s son, which indicated that Plaintiff had gone to Florida and stayed in Florida until April 4. (Pl. Dep. 103, 106; Pl. Dep. Ex. 18) On Tuesday, April 2, Plaintiff’s son wrote that he was having a good time in Florida and “Don’t want Friday to come.” He tagged Plaintiff in the post, indicating he was with him. (Pl. Dep. 106; Pl. Dep. Ex. 18) Plaintiff’s son wrote another post on Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 5 of 15 PageID #: 479 6 Friday, April 4 at 9:35 PM, presumably on the trip home, stating, “LOL, I’m staying in Atlanta.” (Pl. Dep. 106; Pl. Dep. Ex. 18) Upon Plaintiff’s return to work the following week, Human Resources Manager Mike Shaw told Plaintiff that there was a question about his honesty based on the Facebook posts. (Pl. Dep. 70, 103-104) Plaintiff offered no explanation for the Facebook posts and their apparent contradiction to Plaintiff’s asserted reason for being absent.5 Shaw asked if Plaintiff could provide documentation verifying that he was at the doctors’ appointments as he claimed on April 3 and April 4. (Pl. Dep. 106-107) Shaw gave him two days to provide the documentation. (Id.) Plaintiff immediately knew that his job was in jeopardy. (Pl. Dep. 119) G. Plaintiff Failed to Provide Documentation Supporting his Alleged Reason for his Absence. Plaintiff did not provide the requested documentation to support his absence in the timeframe requested. (Shaw Dec. ¶ 7) He also did not provide any explanation for the Facebook discrepancy. (Pl. Dep. 70-71) He talked to both his supervisor, Paula Harris, and Emily Bock, who told him he needed to get the notes from the doctors. (Pl. Dep. 108, 118, 127) He claimed to have trouble obtaining the notes because he was not the patient, but he offered no explanation for why his domestic partner could not obtain the paperwork. (Pl. Dep. 132-33) On April 14, 2014, Plaintiff provided a note to Emily Bock from Norton Healthcare for the April 3 absence.6 (Pl. Dep. Ex. 20) Plaintiff did not provide a note for the alleged April 4 appointment, stating “I have had no such luck obtaining documents to verify that visit. I’ll keep trying but it doesn’t 5 Even at Plaintiff’s deposition, he could not explain the Facebook posts, could not say when he returned home from vacation and could not say when his son returned home from vacation. (Pl. Dep. 65, 69) Plaintiff admitted that he did not tell Cardinal Health that he and his partner returned home from the family vacation without their son. (Pl. Dep. 71) Incredulously, he claimed he did not understand how the post from his son connected to him. (Id.) He also could not explain what time the alleged doctors’ appointments occurred or for what purpose his partner was seen. (Pl. Dep. 94-95) 6 The note was signed by a front desk worker, not a doctor. (Pl. Dep. 137). Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 6 of 15 PageID #: 480 7 look like they are going to be very cooperative at this time.” (Id.) In his e-mail, he claimed that the doctor seen on April 4 was Dr. Ahmed. (Id.) This was not the nutritionist that Plaintiff originally had requested leave to see. (Pl. Dep. 133-34; Pl. Dep. Exs. 14, 20) On April 22, when Plaintiff still had not provided the requested documentation, Mike Shaw and Emily Bock spoke to Plaintiff again. (Pl. Dep. 139-140) They asked where the paperwork was. (Id.) They told him they still needed paperwork for April 4. (Pl Dep. 140-41) They offered to contact the doctor’s office directly. (Pl. Dep. 141-42) Plaintiff agreed to this course of action. (Id.) Emily Bock contacted the doctor’s office. (Bock Dec. ¶ 16) The scheduler told her that Mr. Wright had not been seen on April 4. (Pl. Dep. 146; Bock Dec. ¶ 16) Shaw and Bock discussed this with Plaintiff. (Pl. Dep. 143) Plaintiff stated that sometimes he just drops Wright off to get a prescription and he might not have had an actual appointment. (Pl. Dep. 144) This made no sense and was inconsistent with the reason Plaintiff had allegedly requested the absence. (Shaw Dec. ¶ 8) Shaw believed Plaintiff was lying. (Pl. Dep. 46, 145; Shaw Dec. ¶¶ 8, 12) He told Plaintiff he was being placed on suspension while Shaw completed his investigation. (Pl. Dep. 145-146) On April 29, 2014, when Plaintiff had still failed to provide documentation or a reasonable explanation for the discrepancies, Shaw notified Plaintiff that his employment was being terminated for falsifying a leave of absence. (Pl. Dep. 153-154; Shaw Dec. ¶ 12) On January 26, 2016, Plaintiff filed this lawsuit claiming his termination was because of his race, his sex, his alleged use of FMLA, and/or in retaliation for an alleged complaint. Each of these claims is without merit. Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 7 of 15 PageID #: 481 8 IV. ARGUMENT Defendant is entitled to summary judgment on each of Plaintiff’s claims because he cannot establish a prima facie case of discrimination or retaliation and he cannot establish that the legitimate reason for his termination was pretextual. A. Plaintiff’s Race and Gender Discrimination Claims Fail as a Matter of Law. 1. Plaintiff Cannot Establish even a Prima Facie Case of Discrimination. Plaintiff’s discrimination claims, both race and gender, fail as a matter of law because he cannot establish a prima facie case. To establish a prima facie case of discrimination, a plaintiff must prove that he is a member of a protected class, he was subjected to an adverse employment action, he was qualified for the position, and he was replaced by someone outside the protected class or similarly situated employees outside the protected class were treated more favorably. Harris v. Burger King Corp., 993 F.Supp. 2d 677, 684 (W.D. Ky. 2014); Shajee v. FedEx Express, No. 3:05-CV-211, 2007 U.S. Dist. Lexis 351, at *5-6 (W.D. Ky. Jan. 3, 2007) (analyzing the plaintiff’s Kentucky Civil Rights Act (“KCRA”) claims and noting that in “order to prove a violation of the KCRA, a plaintiff must prove the same elements as required for a prima facie case of discrimination under Title VII”). Plaintiff’s race and gender discrimination claims fail as a matter of law because he can point to no similarly situated employee who was treated differently nor can he establish he was replaced by someone outside the protected class. He admits he is not aware of anyone else who reported that they were on a medical leave or FMLA leave when they were actually on vacation. (Pl. Dep. 157) He also admits that he is not aware of any other circumstance where the Company believed someone falsified a leave of absence and did not terminate the individual’s employment. (Pl. Dep. 157) For this reason alone, Plaintiff’s discrimination claims fail. He cannot establish that he was treated differently than others. Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 8 of 15 PageID #: 482 9 2. Plaintiff Cannot Establish that Cardinal Health’s Legitimate Reason for his Termination was Pretextual. Even if Plaintiff could establish a prima facie case of race or gender discrimination, summary judgment is still appropriate because Plaintiff cannot establish that Cardinal Health’s legitimate reason for terminating his employment was pretextual. Cardinal Health had an honest and good-faith belief that Plaintiff had falsified the reason for his absence in order to extend a vacation that he otherwise could not get approved. Among other things this belief was supported by the following undisputed facts: • Plaintiff originally requested the two days in question as vacation, but those two days were denied. It was only after they were denied that Plaintiff requested the time allegedly for the appointments. (Pl. Dep. 58-60; Shaw Dec. ¶ 3-4) • A co-worker reported that Plaintiff was extending vacation and showed two Facebook posts from Plaintiff’s son indicating they did not leave their vacation in Florida until Friday (April 4) and were in Georgia on Friday night. (Pl. Dep. 103, 106; Pl. Dep. Ex. 18) • Plaintiff never offered any explanation for these Facebook posts. He did not deny being with his son on vacation. (Pl. Dep. 71) • Plaintiff told Emily Bock before the absence that he would try to get doctor’s notes but he did not provide the doctor’s notes upon his return to work. (Pl. Dep. 93; Pl. Dep. Ex. 7) • Plaintiff originally claimed he was taking leave to take his domestic partner to a nutritionist, but he then claimed to have taken him to Dr. Ahmed, his general practitioner, not the nutritionist. (Pl. Dep. 133-34; Pl. Dep. Exs. 14, 20) Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 9 of 15 PageID #: 483 10 • Plaintiff failed to provide Cardinal Health with doctor notes concerning both days. (Pl. Dep. 70-71) • Emily Bock reported to Mike Shaw that when she called Dr. Ahmed’s office, she was told that Plaintiff’s partner was not seen on April 4. (Pl. Dep. 146; Shaw Dec. ¶ 7; Bock Dec. ¶ 16) • When confronted, Plaintiff provided nonsensical explanations, including claims that maybe he just dropped Wright off for a medication pick up, not an appointment. (Pl. Dep. 99-100, 144) Plaintiff cannot establish that Cardinal Health’s reason is pretextual. Plaintiff admits that he believes that Shaw had an honest belief that Plaintiff had lied to Cardinal Health and falsified the reason for his absence. (Pl. Dep. 46) He admits that if he lied, it would be a terminable offense. (Pl. Dep. 104) Finally, Plaintiff admits that he never heard anyone say anything derogatory or offensive based on his race, gender or use of leave. (Pl. Dep. 20, 79) There is no evidence of any illegal animus. Even if Plaintiff could establish a prima facie case of discrimination or retaliation, which he cannot do, Cardinal Health has articulated a legitimate, non-discriminatory reason for terminating Plaintiff. See Jaszczyszyn v. Advantage Health Physician Network, No. No. 11-1697, 2012 U.S. App. LEXIS 23162, at *27 (6th Cir. Nov. 7, 2012) (fraud concerning reason for leave was legitimate reason for termination); Lineberry v. Richards, No. 11-13752, 2013 U.S. Dist. LEXIS 15540, at *15 (E.D. Mich. Feb. 5, 2013) (“An employer is entitled to summary judgment under the ‘honest belief’ doctrine when the employer honestly believes, based on particularized facts, that an employee lied and misused her FMLA leave and disciplines/terminates such employee based on such belief.”). Plaintiff cannot show that the Company’s explanation for his termination was pretext for unlawful conduct. Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 10 of 15 PageID #: 484 11 B. Plaintiff’s Retaliation Claims Fail as a Matter of Law. Plaintiff’s retaliation claims similarly fail. To establish a prima facie case of retaliation, a plaintiff must prove that he engaged in protected activity, his exercise of protected rights was known to defendant, defendant thereafter took adverse employment action against the plaintiff, and there was a causal connection between the protected activity and the adverse employment action. Shajee, 2007 U.S. Dist. LEXIS 351, at *10. Plaintiff cannot establish (1) that he engaged in protected activity, (2) the decisionmaker was aware of any protected activity or (3) a causal connection between his termination and any protected activity. Plaintiff did not engage in protected activity. He admits he did not file a charge until after he was terminated. (Pl. Dep. 165; Pl. Dep. Ex. 24) And he did not otherwise engage in protected activity. He claims that after the investigation into his honesty began, he “vented” to a friend, Jessica - who was an administrative assistant - that he felt targeted because of his race or sexual orientation or both.7 (Pl. Dep. 129-130) Jessica suggested that he file an internal complaint, but he chose not to do so. (Id.) Plaintiff testified that he mostly went to her to “vent.” (Id.) This is not protected activity. Venting to a friend in a manner in which the plaintiff does not want or plan for it to go any further and does not intend to file an internal complaint (and indeed does not file a complaint with anyone with authority to respond), is not reasonable opposition. See Pitrolo v. Cty of Buncombe, No. 07-2145, 2009 U.S. App. LEXIS 4862, at *9 (4th Cir. March 11, 2009) (finding complaints to father that were not intended to be passed along to management were not protected activity, even when father passed them on); Bullard v. Goodyear Tire & Rubber Co., No. 09-4024-SAC, 2011 U.S. Dist. LEXIS 103703, at *34 (D. Kan. Sep. 14, 2011) (finding the plaintiff’s informal conversations with co-workers, in which she 7 The Kentucky Civil Rights Act does not prohibit discriminatory acts based on an employee’s sexual orientation. See Ky. Rev. Stat. § 344.040; Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 727 (6th Cir. 2009). Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 11 of 15 PageID #: 485 12 complained that certain policies and practices were discriminatory, were not protected activity because they were not voiced to supervisors or superiors). And it certainly isn’t protected activity for his gender retaliation claim as he did not even vent that he was targeted based on his gender. Even if Plaintiff’s venting to a friend could be expanded to meet the protected activity requirements, it is undisputed that no decisionmaker was aware of this venting. Plaintiff admitted that he has no reason to believe that Jessica told anyone about their conversation. (Pl. Dep. 129-130) Indeed, neither Mike Shaw nor Emily Bock were aware of this. (Shaw Dec. ¶ 10; Bock Dec. ¶ 18) Summary judgment is appropriate on his retaliation claims for this reason alone. And, finally, even if Plaintiff engaged in protected activity and even if he could somehow show that a decisionmaker was aware of it, he cannot establish a causal connection. He admits that by the time he vented to Jessica he already knew his job was in jeopardy. (Pl. Dep. 119) An employee may not use his complaint as a shield to protect from previously contemplated, though not definitely determined, employment actions. Clark Cty Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001); see also Van Winkle v. HM Ins. Grp., Inc., 72 F. Supp. 3d 723, 737 (E.D. Ky. 2014) (No causation where plaintiff’s job was in jeopardy before she filed EEOC charge even though termination occurred after charge was filed.); Kegley v. Morehead State Univ., No. 2005-CA- 001021-MR, 2006 Ky. App. Unpub. LEXIS 386, at *12 (Ct. App. Dec. 1, 2006) (citing Breeden and explaining that there was no evidence the university ever deviated from its position that it would discharge the employee if certain events occurred and thus her alleged protected activity that occurred shortly before her termination was “no evidence whatever” that her discharge resulted from the alleged protected activity). Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 12 of 15 PageID #: 486 13 Plaintiff’s retaliation claims fail for each of these independently dispositive reasons. He cannot establish a prima facie case of retaliation. Moreover, even if he could establish a prima facie case of retaliation, Plaintiff’s retaliation claims fail for the same reasons as his discrimination claims: he cannot establish that the legitimate reason for his termination was pretextual. C. Cardinal Health is Entitled to Summary Judgment on Plaintiff’s FMLA Retaliation Claim because his Time Off was not Covered by the FMLA. Summary judgment is appropriate on Plaintiff’s FMLA claim because Plaintiff did not engage in activity protected by the FMLA. Plaintiff and Wright were not legally married in 2014 when Plaintiff requested leave. (Pl. Dep. 72) The FMLA does not cover leave to care for a domestic partner. It only covers legally married spouses. See Lukudu v. JBS USA, No. 3:12-CV- 00704-TBR, 2014 U.S. Dist. LEXIS 33351, at *22-24 (W.D. Ky. March 14, 2014) (Plaintiff was not entitled to FMLA leave to care for significant other who was not legally his spouse); Copeland v. Mid-Michigan Reg’l Med. Ctr., No. 11-10633, 2012 U.S. Dist. LEXIS 19459, at *5 (E.D. Mich. Feb. 16, 2012) (explaining that because the FMLA regulations defined “spouse” as “a husband or wife defined or recognized under state law for the purposes of marriage,” the FMLA did not provide for Plaintiff to take FMLA leave to care for her domestic partner) (citing 29 C.F.R. § 825.112). Although Plaintiff tried to call it FMLA, Cardinal Health corrected him and told him it was not covered by FMLA. (Pl. Dep. 74; Pl. Dep. Ex. 7) Because his time off was not covered by the FMLA, his claim for FMLA retaliation fails. See Lukudu, 2014 U.S. Dist. LEXIS 33351, at *26 (FMLA retaliation claim fails as a matter of law where plaintiff was not entitled to FMLA). Moreover, as with the other claims, even if he could establish a prima facie case of FMLA retaliation, his claims fail as a matter of law because he cannot establish that the Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 13 of 15 PageID #: 487 14 legitimate reason for his termination was pretextual. He received all of the leave he requested and no one made any negative comments to him about taking leave. (Pl. Dep. 79, 101) There is no evidence of illegal animus, and no evidence to dispute Cardinal Health’s good faith belief that he had falsified the reason for his absence. V. CONCLUSION For each and all of the foregoing reasons, Defendant is entitled to judgment as a matter of law on Plaintiff’s claims. Cardinal Health respectfully requests that this Court grant its Motion for Summary Judgment and dismiss Plaintiff’s Complaint in its entirety and with prejudice. Respectfully submitted, /s/Patricia Pryor Patricia Pryor (KY Bar 94207) Sarah E. Keates (KY Bar 96905) JACKSON LEWIS P.C. 201 E. Fifth Street, 26th Floor Cincinnati, OH 45202 Telephone: (513) 898-0050 Facsimile: (513) 898-0051 pryorp@jacksonlewis.com sarah.keates@jacksonlewis.com Counsel for Defendant Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 14 of 15 PageID #: 488 15 CERTIFICATE OF SERVICE I certify that on January 31, 2017, the foregoing Motion for Summary Judgment and Memorandum in Support were electronically filed with the CM/ECF system, which will serve electronic notice on the following counsel of record: Samuel G. Hayward, Jr. Adams Hayward & Welsh 4036 Preston Highway Louisville, KY 40213 /s/ Patricia Pryor Patricia Pryor Case 3:16-cv-00100-DJH-CHL Document 29-1 Filed 01/31/17 Page 15 of 15 PageID #: 489 EXHIBIT A Case 3:16-cv-00100-DJH-CHL Document 29-2 Filed 01/31/17 Page 1 of 5 PageID #: 490 Case 3:16-cv-00100-DJH-CHL Document 29-2 Filed 01/31/17 Page 2 of 5 PageID #: 491 Case 3:16-cv-00100-DJH-CHL Document 29-2 Filed 01/31/17 Page 3 of 5 PageID #: 492 Case 3:16-cv-00100-DJH-CHL Document 29-2 Filed 01/31/17 Page 4 of 5 PageID #: 493 Case 3:16-cv-00100-DJH-CHL Document 29-2 Filed 01/31/17 Page 5 of 5 PageID #: 494 EXHIBIT B Case 3:16-cv-00100-DJH-CHL Document 29-3 Filed 01/31/17 Page 1 of 5 PageID #: 495 Case 3:16-cv-00100-DJH-CHL Document 29-3 Filed 01/31/17 Page 2 of 5 PageID #: 496 Case 3:16-cv-00100-DJH-CHL Document 29-3 Filed 01/31/17 Page 3 of 5 PageID #: 497 Case 3:16-cv-00100-DJH-CHL Document 29-3 Filed 01/31/17 Page 4 of 5 PageID #: 498 Case 3:16-cv-00100-DJH-CHL Document 29-3 Filed 01/31/17 Page 5 of 5 PageID #: 499 Case 3:16-cv-00100-DJH-CHL Document 29-4 Filed 01/31/17 Page 1 of 1 PageID #: 500