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Mitchell v. Pilgrim's Pride Corp.

United States District Court, M.D. Florida, Jacksonville Division

July 16, 2019

JOHNNY MACK MITCHELL, Plaintiff,
v.
PILGRIM'S PRIDE CORPORATION, Defendant.

          ORDER

          MARCIA MORALES HOWARD United Slates District Judge.

         THIS CAUSE is before the Court on Defendant, Pilgrim's Pride Corporation's (Pilgrim's Pride) Motion for Summary Judgment and Memorandum of Law (Doc. 45; Motion), filed December 13, 2018. Plaintiff, Johnny Mack Mitchell filed a Response in Opposition to Defendant's Motion for Summary Judgment on January 2, 2019 (Doc. 50; Response). With leave of the Court, Pilgrim's Pride filed a Reply in Support of Motion for Summary Judgment (Doc. 56; Reply), on March 6, 2019. Accordingly this matter is ripe for review.

         In this action, Mitchell asserts that Pilgrim's Pride has violated his rights under Title VII of the Civil Rights Act, 42 U.S.C. § 2000, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2612, 2624, and Chapter 760 of the Florida Statutes. See Amended Complaint (Doc. 16), filed July 14, 2017. Specifically, in his Amended Complaint, Mitchell contends that while he was recovering from a work injury, his employer, Pilgrim's Pride, discriminated against him on the basis of his race and disability, and violated his rights under the FMLA. See generally id. After the close of discovery, Pilgrim's Pride filed the Motion which is fully briefed and both parties submitted record evidence in support of their respective positions.[1]

         I. Background [2]

         Mitchell sues Pilgrim's Pride for race and disability discrimination, as well as for FMLA violations, based on alleged adverse employment actions Pilgrim's Pride took against Mitchell during and after his recoveries from a workplace injury.

         A. Pilgrim's Pride

         Mitchell started working for Pilgrim's Pride's predecessor, Gold Kist, in 1991, at its Live Oak, Florida, location. Lagos Declaration at 3. Pilgrim's Pride, a chicken processing company, acquired the Live Oak plant in 2008. Id. The company takes workplace safety seriously, id. at 3, and emphasizes to all employees that “‘[w]orking safely is a condition of employment,' and that ‘[m]anagement is responsible for maintaining and enforcing safe work practices.'” Id. The company also

has an “open door” policy in which employees are welcome to bring their concerns to management directly, as well as a “PRIDE Line, ” which is a confidential toll-free hotline that is available 24 hours a day, 7 days a week to allow employees, suppliers, customers and other interested parties to report complaints or concerns.

Id.

         Pilgrim's Pride has standards of conduct applicable to all employees which state that “‘[f]ailure to follow instructions or perform designated work' is grounds for ‘corrective action, up to and including termination.'” Id. While the company has a progressive discipline policy, an employee can be terminated immediately, “depending on the case.” Johnson Deposition at 14, 16. In this regard, the Employee Handbook states that “certain forms or instances of misconduct, rule violations, insubordination and other activities can result in disciplinary action of . . . suspension and or discharge for one offense.” Mitchell Deposition, Human Resources Attach. at 20; see also Johnson Deposition at 15.

         When Pilgrim's Pride acquired the Live Oak plant, Mitchell was working “as a Live Hanger in the Live Shed Department, where he reported to Supervisor Kenneth Burnham and Superintendent James Johnson.” Lagos Declaration at 3; Mitchell Deposition at 29. Mitchell's work required him to take live chickens weighing between three and seven pounds, shackle them, and then hang them on a moving line that would eventually take the chickens to their death and subsequent processing. Mitchell Deposition at 21-24, 30; Papoi Deposition at 34. During the time Mitchell worked in the Live Shed, the company expected Mitchell and his co-workers to hang twenty-eight birds a minute. Mitchell Deposition at 30-31.[3]

         B. Mitchell's shoulder injury, surgery, and recovery

         As a result of his work in the Live Shed, Mitchell experienced pain in his shoulders and arms. On February 20, 2013, Mitchell first reported to the Pilgrim's Pride medical department that he was suffering from shoulder and arm pain. Lagos Declaration at 4; Mitchell Affidavit at ¶ 4; Mitchell Deposition at 57; Mitchell Deposition, Medical Records at 6. The pain initially began in his right shoulder, but over time, his left shoulder “worsened substantially.” Mitchell Affidavit at ¶ 4.

         In June of 2013, Mitchell “applied for worker's compensation for ‘bilateral shoulder pain.'” Lagos Declaration at 4; Mitchell Affidavit at ¶ 5; Mitchell Deposition, Medical Records at 16. Mitchell's doctor diagnosed him with “bilateral rotator cuff tendinopathy, impingement signs, mild a.c. joint arthritis bilaterally, and repetitive use injury.” Lagos Declaration at 4. During this time period, Pilgrim's Pride assigned Mitchell to a light duty position, picking feathers off chickens in the Picking Room, but returned him to live hanging when his shoulder pain appeared to improve. Mitchell Affidavit at ¶ 4. However, when Mitchell resumed his former duties, his shoulder pain returned. Mitchell Deposition at 57-58; Mitchell Deposition, Medical Records at 14. Over the next few months, in attempting to treat Mitchell's shoulder pain, his doctors imposed a variety of work restrictions including prohibiting him from reaching over his head and limiting the amount of weight he could lift and carry. See Lagos Declaration at 4, 30, 37, 40, 43; Mitchell Deposition, Medical Records at 17-34.

         As a result of his ongoing pain, and in response to the doctor's orders, Pilgrim's Pride transferred Mitchell to the MSC Department (mechanically separated chicken) where he ground chicken bones. Mitchell Deposition at 77-79. His tasks also included making and stacking boxes. Id. at 80. Mitchell contends that in stacking and making the boxes, he further strained his shoulder, and had to work under conditions that were outside the scope of his medical restrictions. Mitchell Affidavit at ¶ 6; Mitchell Deposition at 81. At the time, however, Mitchell did not complain to anyone about working outside the scope of his medical restrictions because he felt he could not tell his supervisors “no.” Mitchell Affidavit at ¶ 6. In response to an Interrogatory asking Mitchell to “identify any and all requests you have made to anyone at Pilgrim's Pride regarding desired accommodations, ” Mitchell responded that he “didn't request any accommodations from anyone.” Mitchell Deposition Attach. at 8.

         Mitchell's left shoulder became progressively problematic, and on January 12, 2015, he had surgery to repair a tear on his left rotator cuff. Lagos Declaration at 4; Mitchell Deposition, Medical Records at 35. Mitchell returned to work on January 25, 2015, with doctor's orders requiring no lifting, no use of his left shoulder, and attendance at physical therapy. Lagos Declaration at 5; Mitchell Deposition at 61-62. Mitchell's doctor also directed him to keep his left arm in a sling while at work. Mitchell Affidavit at ¶ 48; Mitchell Deposition, Medical Records at 38. To accommodate the doctor's restrictions, Pilgrim's Pride assigned Mitchell to the Picking Room at the same rate of pay he earned while in the Live Shed. Lagos Declaration at 5; Mitchell Affidavit at ¶ 8; Mitchell Deposition at 60, 90, 94; Mitchell Deposition Attach. at 109.

         From January until late August of 2015, Mitchell had regular follow-up visits with his doctor, as well as with the Pilgrim's Pride occupational health nurse, Gay Papoi. Lagos Declaration at 5; Mitchell Deposition, Medical Records at 37-52; Papoi Deposition at 45. Mitchell's doctor continued to impose a variety of work restrictions on him as his shoulder healed, but the restrictions became less onerous over time. For example, Mitchell's initial January 2015 post-operative restriction barred him from any lifting or use of his shoulder, but by July of 2015, Mitchell's doctor reduced his medical restrictions to lifting no more than ten pounds and no reaching overhead, along with ordering that he continue physical therapy. Lagos Declaration at 5-6.

         During meetings with Mitchell, Nurse Papoi recalls counselling Mitchell that “hanging chickens is not advised after shoulder surgery, ” and asking him to think “about a different job, and to watch the bulletin board for jobs to bid on.” Papoi Deposition at 14-15, 45. On at least one other occasion during his recovery process, Papoi recalls advising Mitchell in the presence of his immediate supervisor, Burnham, of the “hazards to his post-operative shoulder if he were to start hanging birds again . . . .” Id. at 45. Mitchell recalled his regular meetings with Papoi, but denies that she suggested that he should think about a job other than live hanging, or that live hanging could lead to additional shoulder injuries. Mitchell Affidavit at ¶ 18; Mitchell Deposition at 108.

         As Mitchell's shoulder incrementally improved and when the live hang line got busy, Mitchell's supervisors would ask him to work in the Live Shed performing a variety of tasks. Mitchell Affidavit at ¶¶ 8-9; Mitchell Deposition at 90, 91. Mitchell testified that on several occasions, Johnson had him perform secondary live hanging duties, which included retrieving dead chickens that had fallen off the live hang line and into a vat, and then throwing the chickens back on the assembly line. Mitchell Affidavit at ¶ 8; Mitchell Deposition at 63-64. Mitchell also stated that he occasionally engaged in rehanging birds. Mitchell Deposition at 60, 64, 90; Mitchell Deposition Attach. at 109. Mitchell performed some of these activities while he was still wearing the sling on his left arm. Mitchell Affidavit at ¶ 8; Mitchell Deposition at 63, 91. Mitchell acknowledged that this work did not involve the same type of physical activity as live hanging, but stated that it nonetheless exacerbated his shoulder pain. Mitchell Deposition at 64. According to Mitchell, once he was no longer required to wear the sling, his “supervisors began to demand more physical tasks from [him], even though [he] was still under medical restrictions [at the time to not] lift anything heavier than five pounds or to lift [his] arms above [his] head.” Mitchell Affidavit at ¶ 9. Again, Mitchell did not specifically complain or report to anyone that he thought he was being made to perform duties inconsistent with his medical restrictions. Mitchell Deposition at 96. Mitchell stated that he did not complain because he was “trying to get better” and that he felt like he could not tell his supervisors “no.” Id.

         During this time period Johnson would often ask Mitchell when he would be healed and could return to live hanging. Mitchell Affidavit at ¶¶ 11, 13; Mitchell Deposition at 67, 71-72, 162. Mitchell stated that he viewed Johnson's questions as an indication that Johnson wanted Mitchell to return to that job. Mitchell Deposition at 162. Likewise, Mitchell indicated that he was “eager to return to [his] live hang position.” Mitchell Affidavit at ¶ 11.

         C. Mitchell's termination from Pilgrim's Pride

         On August 31, 2015, Mitchell had a scheduled doctor's appointment at which he anticipated his doctor would lift all his work restrictions. Prior to the appointment, Mitchell saw Johnson and told Johnson that he expected to receive his doctor's clearance to return to work. As such, Mitchell told Johnson he would be back in the Live Shed the following day. Johnson responded, “We'll see.” Mitchell Affidavit at ¶ 12; Mitchell Deposition at 67-68. Mitchell interpreted Johnson's statement to mean that Johnson had “everything under control out there in the live shed” and did not need him because a full crew was already assigned to that area. Mitchell Affidavit at ¶ 12; Mitchell Deposition at 69-70. Johnson recalls this interaction differently. In contemporaneous notes he made regarding Mitchell's attempted return to live hanging, Johnson wrote that he told Mitchell “that he was not to live hang until nurse [Papoi] said it was OK to do so.” Johnson Deposition at 51-52, 65; Riley Deposition at 39.

         According to Johnson and Bobby Riley, the then Human Resources Manager, when an employee had previously been on restricted work duty due to an injury, the employee could return to full duties once the employee had been released by his doctor and cleared by the company medical team. Johnson Deposition at 33-34, 35; Riley Deposition at 60-61, 63. Therefore, even if an employee's doctor removed all work restrictions, the employee still needed to receive clearance by the medical team at Pilgrim's Pride before returning to his or her prior work position. Riley Deposition at 61. Indeed, the Pilgrim's Pride Employee Handbook explains that when an employee was restricted from work due to a work related injury, the Medical Department determines when to return the employee to full duty. Mitchell Deposition, Human Resources Attach. at 55-56 (“[t]he Medical Department will return [the employee] to regular duties as soon as physically possible. Supervisors should provide a period of conditioning for return to regular duties for the [employee] following a period [of] restricted duty and/or time lost from work.”). Notably, Mitchell denies that Johnson told him that he had to be cleared by both his doctor and the company's medical team before he could resume his prior duties. Mitchell Deposition at 164.

         As Mitchell expected, at his August 31, 2015 check-up, the doctor lifted all work restrictions regarding his left shoulder. However, the doctor observed that Mitchell still “experienced right shoulder pain and noted that an MRI on the right shoulder remained medically necessary.” Lagos Declaration at 5-6; Mitchell Deposition, Medical Records at 53-54. Mitchell stated that the MRI was to determine whether he “was able to do full duty . . . [and to see] if everything was good.” Mitchell Deposition at 101. Likewise, Mitchell stated that his doctor told him “that the right shoulder was going to need surgery too because it didn't look too good.” Mitchell Deposition at 106-07.

         The following day, September 1, 2015, Mitchell arrived at work and delivered his medical paperwork to Papoi. According to Papoi, she “spoke with him regarding not hanging chickens any further as [it was] likely to cause further injury to . . . [his] left shoulder.” Papoi Deposition at 45. She also noted that Mitchell's doctor ordered an MRI for his right shoulder due to Mitchell's complaints of pain. Id. Papoi did not recall specifically telling Mitchell not to return to the live hang area, but did recall giving “him the scenario that he's just had surgery on that shoulder, and its going to aggravate the shoulder again, and for his benefit, that he should not go back to live hang.” Id. at 16-17. Papoi also communicated her concerns to Mitchell's supervisors, and to Riley, the Human Resources Manager, indicating that if Mitchell “goes back to live hang he would probably have pain in his shoulder again, and we'd have the whole scenario all over again.” Id. at 17-18; Riley Deposition at 60. However, Papoi stated she did not specifically inform Burnham and Johnson that Mitchell “was not return [to live hanging. Rather, she] told them that it was not a good idea.” Papoi Deposition at 18. In Papoi's words, she “recommended that he not return.” Id. Nevertheless, in her deposition, Papoi testified that after an employee had recovered from a workplace injury, the employee could return to his former job “if the doctor . . . released [the employee] to full duty . . . .” Papoi Deposition at 36.

         Mitchell also recalled his meetings with Papoi and acknowledged that she was a good caregiver. Mitchell Deposition at 112-13. While he denies that she told him he could further exacerbate his shoulder injuries if he continued to live hang chickens, he does not suggest that either she or any other manager told him that he could return to his position in the Live Shed rather than his assigned position in the Picking Room. Mitchell Affidavit at ¶ 18; Mitchell Deposition at 110.

         Without any discussion about changing his job assignment, Mitchell proceeded to don the appropriate work attire for live hanging and reported to the Live Shed. Mitchell Affidavit at ¶¶ 13-14; Mitchell Deposition at 68-70. His recollection of what happened next differs from that of his supervisors. According to Mitchell's direct supervisor, Burnham, Mitchell was observed live hanging, and Burnham “instructed [Mitchell] to stop hanging and [proceed to] . . . the picking room . . . .” Burnham Deposition at 15-16, 48; see also Riley Deposition at 36-37. Mitchell protested and said he had been released by his doctor to return to full duty. Burnham Deposition at 16. Burnham again told Mitchell he was “to work the picking room until released by nurse [Papoi, but Mitchell] refused to stop hanging, ” and in fact said “no” to Burnham three different times when Burnham directed him to stop and leave the work area. Id. at 16, 18, 48.[4] Burnham explained that because Mitchell was not cleared by the Pilgrim's Pride medical team to work in the Live Shed, he did not want him to return to that post, lest he reinjure his shoulder. Id. at 24-25.

         Although Mitchell denies that he actually hung any birds, he acknowledges that he was on the live hang line and that he did catch one chicken by the leg. Mitchell Affidavit at ¶¶ 14-15, 17; Mitchell Deposition at 68, 169, 185-186; Mitchell Deposition Attach. at 107, 110. Indeed, other individuals on the scene observed Mitchell holding a bird. Mitchell Deposition Attach. at 107. Mitchell admits that Burnham “told me to stop hanging” and testified that in response he “just walked off the line.” Mitchell Deposition at 185. However, Mitchell denies that Burnham directed him to report to the Picking Room. Mitchell Affidavit at ¶ 17; Mitchell Deposition at 185.

         After his exchange with Mitchell, Burnham located Johnson and told him that Mitchell was “live hanging and did not go to the picking room as requested.” Burnham Deposition at 48. Johnson told Burnham that the previous day he told Mitchell that “he was not to hang until released by the plant nurse. [Burnham] then told [Johnson] that he had given [Mitchell] the same instructions.” Johnson Deposition at 41, 65 (“he wasn't allowed to hang until he was released by the nurse and we verified it.”).[5] The two men then returned to the Live Shed where Mitchell remained. Burnham Deposition at 48.

         Because Mitchell denies that he actually hung any birds, he denies that Johnson told him to stop hanging. Id. at 16; Mitchell Deposition at 186. However, he admits that in response to Burnham and Johnson's instructions, he protested saying that his doctor had released him to full duty. Mitchell Deposition at 186. According to Johnson, he told Mitchell that while “the doctor may have cleared [him, ] . . . medical at the plant [had] not cleared [him]. Until [Johnson and Burnham received] notice from medical inside the plant” they could not let him live hang. Id.; see also Johnson Deposition at 36, 37-38, 40, 41. Mitchell similarly testified that he was told the nurse had not cleared him to return to the live hang position. Mitchell Deposition at 164. Mitchell also reported that Johnson “told [him] that [he] was not needed, because [Johnson] had a full crew working in the live shed.” Mitchell Affidavit at ¶ 13. Given that Mitchell remained in the Live Shed, Johnson informed Mitchell that he was being insubordinate and that he should leave and go to Human Resources. Burnham Deposition at 16, 48; Johnson Deposition at 41-42; Riley Deposition at 33, 35, 36.

         That same day, September 1, 2015, Pilgrim's Pride suspended Mitchell from his job for insubordination. Lagos Declaration at 6. The paperwork associated with Mitchell's suspension reflected that he was suspended for disobeying his supervisors' instructions “not to hang birds until further clarification” from Mitchell's doctor and the occupational and safety management team at Pilgrim's Pride. Lagos Declaration at 76. Two days later, on September 3, the Human Resources Director for the Live Oak Pilgrim's Pride plant sent Mitchell a letter advising that he had been terminated from the company. Lagos Declaration at 6, 78.[6]

         D. Mitchell's reinstatement

         Mitchell submitted a union grievance challenging his dismissal. Mitchell Deposition Attach. at 105-111. Taking into account Mitchell's otherwise long tenure at the company, the fact that he was generally a good employee, and because the Pilgrim's Pride Complex Manager wanted to give him another chance, the company agreed to reinstate Mitchell on October 20, 2015. Lagos Declaration at 6, 85; Riley Deposition at 48-49, 51. However, the terms of Mitchell's reinstatement stated that he would not receive back pay for the time during which he had been terminated from Pilgrim's Pride. Additionally, Mitchell agreed he would not return to live hanging, but would be assigned to a position that would not require him to reach over his head, or engage in the type of physical activities he did while in the Live Shed. Lagos Declaration at 85; Riley Deposition at 49.

         When Mitchell returned to work, Pilgrim's Pride assigned him to work in the MSC Department thinking it would be better on his shoulders. Mitchell Affidavit at ¶ 22; Mitchell Deposition at 120-121. This new position paid Mitchell at a lower rate than he had earned prior to his termination. Mitchell Affidavit at ¶ 22; Mitchell Deposition at 94, 121, 131; Mitchell Deposition Attach. at 7. As a result of the lifting he had to do in the MSC Department, Mitchell's shoulders began to hurt again. On December 10, 2015, he “complained to the Occupational Health Department of reemerging pain in his left shoulder.” Lagos Declaration at 6. Mitchell sought medical attention soon thereafter, and received a steroid injection in his left shoulder. Papoi Deposition at 42; Mitchell Deposition, Medical Records at 59-61. Afterwards, Mitchell's doctor released him back to work without any restrictions. Lagos Declaration at 7; Mitchell Deposition, Medical Records at 61.

         Six months later, in June of 2016, Mitchell again sought medical care, complaining of increasing shoulder pain. Lagos Declaration at 7; Mitchell Affidavit at ¶ 23. When he mentioned to his MSC Department supervisor that his work was causing him pain, the supervisor advised Mitchell to find a co-worker who was willing to rotate MSC assignments with him so he could avoid the tasks that caused him pain. Mitchell Affidavit at ¶ 24; Mitchell Deposition at 128. However, Mitchell did not do so because he thought he “would have been singled out by [his] fellow employees. They would have accused [him] of not doing good work and if enough complaints [were] made by fellow workers, [he] would get fired. Bottom line, [he] was job scared.” Mitchell Affidavit at ¶ 24.

         Nevertheless, Mitchell did not report any specific complaints to Human Resources about his pain or work assignment. Mitchell Deposition at 128.

         After a June 21, 2016 medical appointment, Mitchell's doctor “issued restrictions of no overhead lifting and no lifting of more than ten pounds for four weeks.” Lagos Declaration at 7; Mitchell Deposition, Medical Records at 63-65. Medical notes also reflect that Mitchell received an injection to address his pain, which made a “significant difference.” Glover Deposition at 28. One of the company Occupational Health Nurses, Belinda Glover, noted that Mitchell requested that he be permitted to return to the Live Shed. Id. at 14.[7] Glover explained that the company ordered an ergonomic assessment regarding whether Mitchell could return to a live hanging assignment, but was awaiting documentation from that assessment. Id. at 14-15, 30.

         In light of Mitchell's ongoing shoulder problems, and to accommodate the most recent work restrictions from his doctor, Pilgrim's Pride transferred Mitchell to a Salvage position. Lagos Declaration at 7, 98; Mitchell Affidavit at ¶ 25; Mitchell Deposition at 15, 122, 131; Mitchell Deposition, Medical Records at 67. In Salvage, Mitchell's job was to cut off chicken parts that could not proceed through processing. Mitchell Deposition at 17. In a follow up appointment with his doctor on July 19, 2016, Mitchell's physician again released him to return to work without restrictions on his left shoulder. Glover Deposition at 28; Lagos Declaration at ¶ 28; Mitchell Deposition, Medical Records at 69. However, the doctor noted that Mitchell reported he “had pain when he was lifting 50-pound boxes repetitively.” Glover Deposition at 28.

         Later that same month, Mitchell “complained to the Occupational Health Department of ‘discomfort and heaviness in his right shoulder and bilateral arms.'” Lagos Declaration at 8; see also Glover Deposition at 8, 11. Glover administered over the counter ibuprofen to Mitchell, as well as a pain relieving gel to his shoulder. Lagos Declaration at 104. She also noted that she intended to speak to Mitchell's supervisor regarding the appropriateness of his work placement. Id.[8] Mitchell again sought medical attention in February and March of 2017, for pain in his left shoulder. Lagos Declaration at 8; Mitchell Deposition, Medical Records at 76-77, 79-80. The doctor released Mitchell “to return to work without restrictions on the left shoulder.” Lagos Declaration at 8; Mitchell Deposition at 142. Throughout this time, Mitchell remained assigned to the Salvage Department. Lagos Declaration at 8.

         E. FMLA leave

         During the same time period that Mitchell worked in Salvage, he applied for and was deemed eligible for FMLA leave to address his hypertension. Id. at 8, 113-127. Mitchell first received approval for FMLA leave in May of 2016 when Pilgrim's Pride permitted him to take intermittent leave. He renewed his request and was approved for FMLA leave at least two more times, through 2017 and 2018. Id. at 8, 120, 127. During this time frame, Mitchell utilized FMLA leave for at least seventeen days to attend doctor appointments associated with his hypertension. Id. at 8; Mitchell Deposition at 132; Mitchell Deposition Attach. at 15-16, 39-41, 43-45, 49-51, 55-56, 62-63, 70-72, 76-79, 82-84, 87, 89, 91, 96. Mitchell testified that he never had any problems taking FMLA leave, and received approval for all his requested FMLA intermittent leave. Mitchell Deposition at 133.

         Mitchell worked in Salvage until May of 2018, at which point Pilgrim's Pride transferred him to a Neck Chiller position. Lagos Declaration at 8; Mitchell Affidavit at ¶ 25; Mitchell Deposition at 15. According to Mitchell, two women who worked with him in Salvage complained and “picked at him” because he took FMLA time to address his hypertension. Mitchell Affidavit at ¶ 25; Mitchell Deposition at 16, 19, 129, 132. He contends that as a result of their complaints, and in retaliation of his use of FMLA leave, his supervisor in Salvage transferred him to the Neck Chiller position. Mitchell Affidavit at ¶ 25; Mitchell Deposition at 19. In his deposition, Mitchell reported that he did not have a problem being moved to the Neck Chiller Department and that working there was “going well.” Mitchell Deposition at 20, 27.

         Mitchell's duties in the Neck Chiller Department include “boxing up chicken necks. Specifically, . . . Mitchell makes boxes and places them on a conveyor belt, where approximately 40 pounds worth of chicken necks are dropped into the box. The conveyor belt then takes the box to second processing, where it is processed for shipment.” Lagos Declaration at 8; Mitchell Deposition at 24-27. Mitchell reported that some of his work in the Neck Chiller Department causes him pain, but that he has not reported that pain to his supervisor or anyone in Human Resources. Mitchell Affidavit at ¶ 26; Mitchell Deposition at 142-143. Mitchell acknowledged that he would likely experience similar pain if he was live hanging, but stated that “you got to work through the pain no matter what you do.” Mitchell Deposition at 144. Mitchell further stated in his January 2019 Affidavit that he currently did not have any medical restrictions, but he was “likely to have similar surgery on [his] right shoulder because of” his work in the Neck Chiller Department. Mitchell Affidavit at ¶ 26. Mitchell also stated that his shoulder still had a lot of pain and that he used “pain patches and heat” to address it. Mitchell Deposition at 142, 145; Mitchell Deposition Attach. at 8.

         F. Comparators

         Finally, Mitchell points to several employees at Pilgrim's Pride who he alleges suffered from workplace injuries that caused them pain, but were permitted to continue with their work assignments and were not subject to adverse employment actions. He first references Joyce Grantham, a white employee, who had hand surgery, but upon recovery, returned to her former position. Mitchell Affidavit at ¶ 27; Mitchell Deposition at 136. However, Mitchell has acknowledged that Grantham now works in a different division at Pilgrim's Pride because of ongoing pain in her hand. Mitchell Affidavit at ¶ 27; Mitchell Deposition at 137. He nonetheless notes that Grantham “was not suspended or terminated, and did not receive a reduction in pay.” Mitchell Affidavit at ¶ 27.

         Second, Mitchell points to his former supervisor, Johnson, who suffered from back issues. In his deposition, Johnson acknowledged he would occasionally “tweak” his back, whether at home or at work and that he “just toughed it out” until it got better. Johnson Deposition at 46, 47-48; Mitchell Affidavit at ¶¶ 21, 29; Mitchell Deposition at 182. Johnson testified that he received medical care for his back, but did not know if his receipt of medical care or any associated doctor's orders were included in his work personnel file. Johnson Deposition at 48-51. Riley, the Human Resources Manager at the time, noted that Johnson may very well have had a personal medical problem with his back, but Riley was not aware of whether Johnson had been placed under any work restrictions by a doctor or if Johnson had sought worker's compensation for the same. Riley Deposition at 6, 28-29.

         Next, Mitchell identifies an unnamed electrician at Pilgrim's Pride who had a fainting incident at home, but nonetheless continued in his usual work duties at the company. Mitchell Deposition at 178-79. Finally, in an affidavit attached to his Response to Pilgrim's Pride Motion, Mitchell references for the first time a white employee named Ed Conquer. Mitchell Affidavit at ¶ 10. Mitchell reports Conquer “was a maintenance guy who had injured his rotator cuff and was allowed to do his same job even with a sling on.” Id. According to Mitchell, Conquer was “allowed to keep doing his job even with the injury.” Id. at ¶ 28. The record suggests that all of these employees are white. Id. at ¶¶ 10, 27-28.[9]

         Finally, the record before the Court makes evident that Mitchell enjoyed working as a live hanger, and despite whatever pain he may have suffered, he wanted to return to that work. He stated that if other individuals were allowed to work through their pain, he did not ...


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