Smith v. Rock-Tenn Company

MOTION for summary judgment

W.D. Mich.January 17, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION STEPHEN V. SMITH an individual, Civil Action No. 1:14-cv-01239 Plaintiff, Hon. Janet T. Neff v. ROCK-TENN COMPANY, corporation, Defendant. William F. Piper (P38636) William F. Piper, P.L.C. Attorney for Plaintiff 1611 West Centre Avenue, Suite 209 Portage, MI 49024 Phone: 269-321-5008 Fax: 269-321-5009 Richard W. Warren (P63123) Brian M. Schwartz (P69018) Miller, Canfield, Paddock and Stone, PLC Attorneys for Defendant 150 West Jefferson, Suite 2500 Detroit, MI 48226 Phone: (313) 963-6420 Fax: (313) 496-7500 warren@millercanfield.com schwartzb@millercanfield.com DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant, Rock-Tenn Company, through its attorneys, Miller, Canfield, Paddock and Stone, PLC, respectfully requests that the Court dismiss all of Plaintiff’s claims with prejudice pursuant to Federal Rule of Civil Procedure 56. In support of this Motion, as more fully stated in its supporting Brief, Defendant states: 1. Plaintiff, Stephen V. Smith, alleges that Defendant violated the Family Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment (“ADEA”) when it terminated his employment after he violated the no-fault attendance policy in the collective bargaining agreement. Case 1:14-cv-01239-JTN ECF No. 79 filed 01/17/17 PageID.236 Page 1 of 3 2. All of Plaintiff’s claims require dismissal because he cannot establish the prima facie elements of any of his claims and cannot demonstrate that Defendant’s legitimate non- discriminatory reason for his termination was a pretext for discrimination or retaliation. 3. Additionally, Plaintiff’s ADA and ADEA claims are barred because Plaintiff failed to timely file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff’s ADA claim is also barred because it is outside the scope of his untimely EEOC charge. 4. Pursuant to the Court’s March 31, 2016 Case Management Order (Dkt#51) and its Information and Guidelines for Civil Practice, Defendant previously filed a Pre-Motion Conference Request regarding this Motion. Pursuant to a November 9, 2016 Order (Dkt#71) issued following the Pre-Motion Conference, Defendant is serving this brief not later than December 6, 2016. It will be filed with the Court in accordance with this Court’s November 9, 2016 Order and this Court’s Civil Practice Guidelines. 5. Consistent with the Local Rules, in addition to the information in Paragraph 4, Defendant requested that Plaintiff concur in the requested relief on December 5, 2016. Concurrence was not obtained, making this motion necessary. For the foregoing reasons, as more fully set forth in its supporting brief, Defendant respectfully requests that this Court grant Defendant’s Motion and enter an Order, pursuant to Fed. R. Civ. P. 56, dismissing Plaintiff’s claims in their entirety and with prejudice. Miller, Canfield, Paddock and Stone, PLC /s/Richard W. Warren Attorneys for Defendant 150 West Jefferson, Suite 2500 Detroit, MI 48226 (313) 963-6420 Dated: December 6, 2016 P63123 Case 1:14-cv-01239-JTN ECF No. 79 filed 01/17/17 PageID.237 Page 2 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THOMAS TIBBLE, as Trustee of the Bankruptcy of Steven V. Smith Civil Action No. 1:14-01239 Plaintiff, Hon. Janet T. Neff v. ROCK-TENN COMPANY, corporation, Defendant. William F. Piper (P38636) William F. Piper, P.L.C. Attorney for Plaintiff 1611 West Centre Avenue, Suite 209 Portage, MI 49024 Phone: 269-321-5008 Fax: 269-321-5009 wpiper@wpiperlaw.com Richard W. Warren (P63123) Brian M. Schwartz (P69018) Miller, Canfield, Paddock and Stone, PLC 150 West Jefferson, Suite 2500 Detroit, MI 48226 Phone: (313) 963-6420 Fax: (313) 496-7500 warren@millercanfield.com schwartzb@millercanfield.com CERTIFICATE OF SERVICE Theresa J. Kitz being first duly sworn, deposes and says that on the 6th day of December, 2016, she sent a copy of Defendant’s Motion for Summary Judgment and this Certificate of Service addressed to counsel for Plaintiff William F. Piper at his last known address shown above via U.S. Mail and Email. /s/Theresa J. Kitz Theresa J. Kitz Assistant to Richard W. Warren 28011385.1\153674-00003 Case 1:14-cv-01239-JTN ECF No. 79 filed 01/17/17 PageID.238 Page 3 of 3