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Bement v. Cox

United States District Court, D. Nevada

September 22, 2014

BARON BEMENT, and individual, Plaintiff,
v.
JAMES COX, an individual, et al., Defendants.

ORDER (DEFS' MOTION FOR SUMMARY JUDGMENT - DKT. NO. 32)

MIRANDA M. DU, District Judge.

I. SUMMARY

Plaintiff Baron Bement brings this action asserting claims under the Rehabilitation Act against the Nevada Department of Corrections ("NDOC") for allegedly failing to accommodate Plaintiff's disability and punishing him for seeking accommodation, and under the Family Medical Leave Act ("FMLA") against all Defendants for allegedly denying Plaintiff leave to which he was entitled, utilizing Plaintiff's assertion of FMLA rights as a negative factor in adverse employment actions, and force-designating leave as FMLA leave. (Dkt. no. 1 ΒΆΒΆ 24-29.)

Before the Court is Defendants James Cox, Greg Smith, and NDOC's Motion for Summary Judgment ("Motion"). (Dkt. no. 32.) For the reasons set out below, the Motion is granted in part and denied in part.

II. BACKGROUND

The following facts are undisputed.

Plaintiff began work as a correctional officer with the NDOC in 2004 and was assigned to the Warm Springs Correctional Center ("WSCC") at all relevant times. (Dkt. no. 32-1 at "Page 6".)

On July 28, 2011, Plaintiff was provided with a letter dated July 13, 2011, from NDOC regarding Plaintiff's "extremely excessive" use of sick leave. (Dkt. no. 32-1 at "Page 13;" dkt. no. 32-3.) The letter stated that Plaintiff used twenty-four (24) days of sick leave for the year of 2011 until the date of the letter, noting that all but four (4) of these days were used in conjunction with regular days off. (Dkt. no. 32-3.) The letter required Plaintiff, going forward, to produce a note from a physician or medical professional for Plaintiff's sick leave usage for the next six (6) months. ( Id. )

NDOC advised Plaintiff to apply for FMLA and mailed an FMLA packet to Plaintiff on August 15, 2011, with forms for his physician to fill out. (Dkt. no. 32-4.) The packet listed a due date of September 2, 2011. ( Id. ) Plaintiff received the packet but did not fill it out or return it. (Dkt. no. 32-1 at "Pages 15-17.") Plaintiff received notification that FMLA leave was not approved because he did not fill out or return the paperwork. (Dkt. no. 32-1 at "Page 16.")

Plaintiff received a written reprimand dated August 17, 2011, for calling in sick and failing to provide a note in violation of the "proof status" imposed by the July 13, 2011, letter. (Dkt. no. 32-5.)

On or about November 14, 2011, Plaintiff hit a wild horse with his car and hurt his shoulder and neck. (Dkt. no. 32-1 at "Pages 14, 35-36;" dkt. no. 32-8.) He called in sick the next three days. (Dkt. no. 32-1 at "Pages 36-37.")

NDOC sent Plaintiff an FMLA packet on November 30, 2011, with a listed due date of December 18, 2011. (Dkt. no. 32-9.) Plaintiff returned the completed paperwork on December 9, 2011, and was approved for FMLA leave from November 23, 2011, through December 12, 2011. ( Id.; dkt. no. 32-10.)

On or about February 9, 2012, Plaintiff filed a grievance regarding his 2011 performance evaluation. (Dkt. no. 32-13.) The evaluation overall stated that Plaintiff "meets standards, " but Plaintiff challenged the evaluation with regard to four (4) categories where he was rated "does not meet standards." ( Id. ) As a result of the grievance, Plaintiff's ratings in three (3) of the four (4) categories were improved. ( Id. )

Plaintiff was served with a specificity of charges on June 25, 2012, imposing a suspension of five (5) days for unauthorized absences. (Dkt. no. 32-14.) This was a result of unauthorized sick leave that Plaintiff took in ...


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