Summary
finding that where plaintiff claims the real reason for her termination is her exercise of her FMLA rights, it is a claim that defendant offered a pretextual reason for plaintiff's termination, which is a "classic retaliation claim"
Summary of this case from Campbell v. Gambro Healthcare, Inc.Opinion
No. 03-4024-SAC.
September 21, 2004
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion for summary judgment against Federal Home Loan Bank of Topeka ("FHLB"), and plaintiff's motion for leave to file a surreply memorandum. This is an action brought under the Family and Medical Leave Act, 28 U.S.C. §§ 2601, et seq., ("FMLA"). Plaintiff alleges that defendant violated the FMLA when she was not placed in her former position following her return from medical leave and when she was later discharged while on reduced leave schedule. Plaintiff additionally contends that defendant violated the FMLA when it discharged the plaintiff in retaliation for her use of medical leave. Dk. 42, p. 11-12.
Defendant Chris Miller has previously been dismissed with prejudice from the case.
PLAINTIFF'S MOTION FOR LEAVE TO FILE SURREPLY
The parties agree that the pretrial order states an interference claim based on plaintiff's contention that she was not placed in her former position following her return from medical leave, and a retaliation claim based on plaintiff's contention that her termination was in retaliation for her use of medical leave. Plaintiff seeks leave of court to file a surreply to address the "new" issue whether the pretrial order additionally states a claim that plaintiff's termination constituted FMLA interference, in addition to retaliation.
Defendant has no opposition to the motion, although defendant denies that it interjected this issue or any "new" evidence into the proceedings. The court grants the motion for leave, and considers all matters set forth in plaintiffs' surreply in making this decision.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Summary Judgment Standards
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will . . . preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed 'to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947 (1987).
Unsdisputed facts
Nancy Metzler began her employment with FHLB on October 20, 1986. Throughout her employment with FHLB, plaintiff was an "at-will employee." From 1999 until September 16, 2002, Plaintiff worked in the Networks and Systems Group of the Information Technology ("IT") Department, also called "Networks." From 2000 until April 2002, plaintiff's immediate supervisor was Steve Montgomery, the Network and Systems Manager. Mr. Montgomery had never been a DBA, had no training or experience using SQL databases or SQL Server and did not know how to use certain tools. Thereafter, plaintiff's supervisor was Kathleen Grote ("Grote"), who admittedly lacked the experience as a DBA that she needed to properly supervise plaintiff.
On September 16, 2002, the IT Department was reorganized. As part of the reorganization, a new group was formed within the IT Department, headed by Chris Miller ("Miller"), called the Projects and Support Group. On September 13, in advance of the reorganization, IT Director Phil Andruss met with every IT department employee, including plaintiff, who would be reporting to a new manager after the reorganization. When Andruss informed plaintiff that she would be transferred to the new Projects Support group under Miller's supervision, plaintiff responded that she would rather be fired than report to Miller.
Prior to the reorganization, Miller had managed projects in which plaintiff had participated, but had never been plaintiff's supervisor. Prior to 2002, plaintiff and Miller had professional differences of opinion over a number of years about the manner in which plaintiff operated, or should operate, her databases. Miller believed that plaintiff should give more support to the programming staff and that some of the procedures plaintiff suggested were inefficient and hindered the programmers' attempts to meet their deadlines. Miller also believed that plaintiff communicated poorly with the programmers and that some of the ways she preferred to do things were inefficient. However, Montgomery, plaintiff's supervisor at the time, supported plaintiff's position.
Plaintiff absented herself from work on the first day of the reorganization, Monday, September 16, 2002, when Miller became her supervisor. Plaintiff worked only part of the next day Tuesday, September 17, 2002, before going home sick. Plaintiff saw a physician that day, who diagnosed her with workrelated stress, depression, anxiety, and related symptoms, and ordered her to stay off work for two weeks. On September 30, 2002, the physician ordered plaintiff to stay off work for one more week. On October 4, 2002, the physician issued plaintiff a work release order permitting her to return to half-time work, and she first did so on October 8, 2002, working four hours per day.
From October 8 until her discharge from employment on November 15, 2002, plaintiff worked four hours per day, and remained on the Projects and Support Group as Database Administrator ("DBA"). She received the same pay and benefits she had received prior to the reorganization and prior to taking leave. From 1999 until her discharge from employment, plaintiff's job title and position description were unchanged. The tasks plaintiff was assigned to perform changed after the reorganization, however, and plaintiff was required to use more advanced features than she had previously used of certain tools.
On October 9, 2002, the day after plaintiff began her reduced schedule, Miller wrote a formal counseling document which reproved plaintiff for being uncommunicative, for rude behavior and for unproductive use of her time, and required plaintiff to correct these deficiencies. The counseling document also required plaintiff to update Miller daily regarding her project status, and stated October 17 as the deadline for a specific assignment. The counseling document warned that failure to improve in these areas could result in further discipline up to and including termination. Miller gave this document to plaintiff at the end of plaintiff's work day.
Miller testified that she gave plaintiff the counseling document on October 9 because she observed that the unproductive habits and attitude problems that she had observed in working with plaintiff before she became her supervisor were recurring, and she wanted plaintiff to understand that they were no longer acceptable. Miller delivered this counseling in writing because she felt plaintiff would not talk to her.
Plaintiff signed the form, noted her disagreement with it, and submitted a written response to it. On October 17, 2002, plaintiff submitted a request for FMLA leave retroactive to September 17, 2002, due to her serious health condition. FHLB approved plaintiff's FMLA leave on October 18, 2002, retroactive to September 17, 2002. Plaintiff was deemed to be on full-time FMLA leave from September 17, 2002 to October 8, 2002, then on FMLA reduced leave schedule from October 8, 2002 through the date of her discharge on November 15, 2002.
On October 29, plaintiff met with Miller and Dina Cox, FHLB's director of Human Resources, to discuss the October 9 counseling document and the ways in which she believed she was being treated unfairly. Plaintiff admitted that she missed some deadlines for her work, but believed many deadlines for completion of certain projects were unreasonably short.
On November 4, plaintiff complained about one particular deadline to her co-worker, Anita Wright, who conveyed plaintiff's complaint to Cox, who, in turn, spoke to Miller about it. Miller extended the deadline to plaintiff's satisfaction, but on that same date, drafted another counseling document criticizing plaintiff for lack of productivity and missed deadlines. When Miller delivered the counseling document to Cox for review, Cox advised Miller not to deliver it to plaintiff. Instead, Cox held several meetings between plaintiff, Miller herself, and at least once, Andruss, in the next few weeks in an attempt to improve plaintiff's productivity and communications between plaintiff and Miller. Such counseling sessions included those held on November 7 and 13.
On November 13, 2002, Miller prepared another counseling statement that she intended to deliver to plaintiff, but, following the usual procedure, she first took the document to Cox for review. Upon reading the proposed counseling statement, Cox advised Miller not to deliver another counseling statement, but to proceed with termination. Consequently, Miller delivered a memorandum to Andruss recommending plaintiff's termination.
Later that day, Miller, Cox, Andruss and Andruss's supervisor, Brad Hodges, FHLB's Senior Vice President for Housing, Technology Planning, met to discuss whether plaintiff was able to meet her assigned job responsibilities or whether FHLB needed to find someone else who could produce the level of work that was required. Input was also sought from other team leaders and managers who had worked with plaintiff. The decision was made jointly that plaintiff should be terminated due to the effect of her missed deadlines on other projects, her uncooperativeness, and the effect of her negative attitude on the whole team. Plaintiff's employment was terminated effective November 15, 2002.
FMLA
Plaintiff's sole claims are brought pursuant to the FMLA. The FMLA affords qualified employees twelve weeks of unpaid leave each year for various reasons, including an employee's serious health problems. 29 U.S.C. §§ 2601- 2654. Among other provisions, the FMLA requires an employer to reinstate an employee to his or her former position or its equivalent upon the employee's timely return from FMLA leave. 29 U.S.C. § 2614(a).
Under this statute, employees may proceed on either an entitlement/interference theory, or a discrimination/retaliation theory.
The FMLA creates at § 2617(a) a cause of action for employees to enforce their FMLA rights on the basis of either the entitlement or interference theory, § 2615(a)(1), or the retaliation or discrimination theory, § 2615(a)(2). To prevail on an entitlement claim, the employee must prove an FMLA right to leave or reinstatement; the employer's interference with, restraint of or denial of that right; and prejudice resulting to the employee. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155, 1161, 152 L.Ed.2d 167 (2002).Smith v. Blue Dot Services Co., 283 F. Supp. 2d 1200, 1204 (D. Kan. 2003). "[E]mployers [thus] have a prescriptive obligation under the FMLA — they must grant employees substantive rights guaranteed by the FMLA — and they have a proscriptive obligation — they may not penalize employees for exercising these rights." Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999). Plaintiff states claims under both the entitlement/interference theory and the discrimination/retaliation theories.
Interference theory
The FMLA contains prohibitions against interfering with an employee's exercise of any right granted under the statute: "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a). In this claim, plaintiff relies primarily upon the law that when an eligible employee returns from leave taken under the FMLA, an employer must restore the employee "to the position of employment held by the employee when the leave commenced" or to an "equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a)(1)(A)(B).
Plaintiff contends that defendant interfered with her FMLA substantive rights by: "1) assigning her new job duties upon her return to half-time work on October 8, 2002; 2) failing to give her adequate training to perform her new job duties; and 3) wrongfully terminating her employment ostensibly because her performance of her new duties was deficient." Dk. 55, p. 23-23; pretrial order p 7-8.
A prima facie case under an interference/entitlement theory requires plaintiff to show an FMLA right to leave or reinstatement, a denial of substantive rights under the FMLA, and a causal connection between the two. Dry v. The Boeing Co., 92 Fed. Appx. 675, 678, 2004 WL 309323, *3 (10th Cir. Feb. 19, 2004). The employer's intent is immaterial.
The interference or entitlement theory is derived from the FMLA's creation of substantive rights. If an employer interferes with the FMLA — created right to medical leave or to reinstatement following the leave, a deprivation of this right is a violation regardless of the employer's intent. King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). In such a case, "the employee must demonstrate by a preponderance of the evidence only entitlement to the disputed leave. . . . [T]he intent of the employer is immaterial." Id. However, we are also mindful that "[u]nder FMLA, an employee who requests leave or is on leave has no greater rights than an employee who remains at work." Gunnell, 152 F.3d at 1262 (10th Cir. 1998) (citing 29 C.F.R. § 825.216(a)).Dry, 92 Fed. Appx. at 678, quoting Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir. 2002).
New job duties/inadequate training
By failing to make any substantive arguments concerning her theories regarding new job duties and failure to train, plaintiff has waived them as independent claims. Nonetheless, the court examines the merits of these claims in an abundance of caution.
Defendant concedes that plaintiff was entitled to FMLA leave, and thus meets the first element of her prima facie case. Defendant disputes the second element by alleging first, that plaintiff never returned from FMLA leave, and secondly, that even if plaintiff returned, she was restored to a position equivalent to her previous position. Defendant additionally disputes any causal connection between her new job duties and lack of training, and her assertion of rights under the FMLA.
It is undisputed that plaintiff was absent from work on FMLA leave from September 18, 2002 until she returned to part-time work, four hours a day, on October 8, 2002. Plaintiff agrees that she was on FMLA reduced leave schedule from October 8, 2002 until the date of her discharge, and that she never attempted to return to full-time work status.
When leave is taken for an employee's serious health condition, the employee may take intermittent or reduced ( i.e., part-time) leave. 29 U.S.C. § 2612(b). Under 29 C.F.R. § 825.204, an employer may transfer an employee who is taking intermittent or reduced leave schedule to an alternate position, but "[t]he alternate position must have equivalent pay and benefits." 29 C.F.R. § 825.204(c). That regulation states:
(a) If an employee needs intermittent leave or leave on a reduced leave schedule . . . the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position.
(b) . . . Transfer to an alternative position may include altering an existing job to better accommodate the employee's need for intermittent or reduced leave.
(c) The alternative position must have equivalent pay and benefits. An alternative position for these purposes does not have to have equivalent duties. . . .
(d) An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee. . . .
(e) When an employee who is taking leave . . . on a reduced leave schedule and has been transferred to an alternative position, no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he/she left when the leave commenced . . .29 C.F.R. § 825.204.
This regulation makes clear that during the time plaintiff remained on a reduced leave schedule, she had no legal entitlement to the same or equivalent duties she previously held. Only when an employee no longer needs to continue on leave and is able to return to full-time work must the employee be placed in the same or equivalent job as the job she left when the leave commenced.
From October 8, 2002 until the date of her discharge, plaintiff was on a reduced leave schedule which was foreseeable based on her planned medical treatment, including her period of recovery from her depression and related conditions. Plaintiff admits that her pay and benefits from October 8, 2002 until the date of her discharge were equivalent to those she had prior to her FMLA leave. Because defendant had the right to transfer plaintiff to a completely different position with the same pay and benefits during the period of her reduced leave schedule, and plaintiff had no right to the same or equivalent duties while in her part-time position, no violation of the FMLA can be shown based upon the theory that plaintiff was not restored to her prior position or its equivalent during her reduced leave schedule. Even assuming the truth of every matter alleged by plaintiff, no reasonable jury could find that defendant's assignment to plaintiff of new job duties and defendant's failure to train her for such duties during her reduced leave schedule violated the FMLA. Summary judgment is warranted on these theories.
Termination as interference
Plaintiff additionally alleges, as an interference claim, that defendants wrongfully terminated her employment "ostensibly because her performance of her new duties was deficient." The court first addresses the defendant's contention that this states only a retaliation claim and not an interference claim.
The distinction between the two theories is important because the retaliation theory requires different elements and burdens of proof than does the interference theory.
The parties agree that in some circumstances, an employee's termination may properly be styled as an FMLA interference claim. Defendant agrees, for example, that termination for a reason that directly interferes with an employee's substantive right to use FMLA leave may constitute an interference claim. See e.g., Diffee Ford-Lincoln-Mercury, 298 F.3d 955 (10th Cir. 2002) (termination for taking FMLA leave without satisfying precondition that employee train another); Arban v. West Publishing Co., 345 F.3d 390 (6th Cir. 2003) (termination for refusal to do work while on FMLA leave).
Case law reflects some inconsistency in the determination whether a claim that an employee has been terminated for taking FMLA leave states a claim under an interference or a retaliation theory.
[C]ourts have not been consistent as to which section of the FMLA applies to a claim, such as [plaintiff's], that an employer has terminated an individual's employment for taking FMLA-protected leave. Compare Hale, 219 F.3d at 68 (Section 2614(a)(1) "protects an employee from discharge or demotion by an employer if that action is motivated by the employee's taking of leave pursuant to the FMLA") with O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir. 2000) ("The FMLA recognizes two types of claims . . .: interference claims, in which employers burden or outright deny substantive statutory rights to which their employees are entitled, see 29 U.S.C. § 2615(a)(1) (1999), and retaliation claims, in which employers discharge employees for exercising their FMLA right to leave, see id. § 2615(a)(2)." (footnotes omitted)).Mann v. Mass. Correa Elec., J.V., 2002 WL 88915, *5 (S.D.N.Y. 2002).
In the present case, however, the court has no uncertainty as to which theory plaintiff has stated. Plaintiff has not alleged that her termination allegedly interfered with her right to take additional leave, or her right to be restored to her previous position at the end of her leave. Plaintiff's sole "interference" claim regarding termination is that defendants wrongfully terminated her employment "ostensibly because her performance of her new duties was deficient." Plaintiff's brief clarifies her theory that the real reason for plaintiff's termination was plaintiff's "exercise of rights under the FMLA." Dk. 55, p. 25. This is nothing more than a claim that the pretextual reason for plaintiff's termination was plaintiff's poor performance, but the real reason was her taking of FMLA leave. Such is a classic retaliation claim.
To the extent the facts may show that plaintiff's termination was causally related to plaintiff's use of FMLA leave, plaintiff's claim is properly analyzed as one for retaliation, subject to the McDonnell Douglas burden-shifting standard. See Geromanos v. Columbia University, 322 F. Supp. 2d 420, 433 (S.D.N.Y. 2004); Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2004); Dressler v. Community Service Communications, Inc., 275 F. Supp. 2d 17, 24-25 (D. Me. 2003) (noting the "firing-is-a-denial-of-restoration-argument is simply a clever way of trying to shortcut" plaintiff's burden of persuasion). Accordingly, the court finds it unnecessary to address defendant's alternative argument that even if plaintiff does state an termination/interference claim, and has shown a prima facie case of termination/interference, plaintiff would have been terminated regardless of her FMLA leave. Bones v. Honeywell Intern., Inc. 366 F.3d 869, 877 (10th Cir. 2004), citing Diffee Ford-Lincoln-Mercury, 298 F.3d at 960 ("If dismissal would have occurred regardless of the request for an FMLA leave, however, an employee may be dismissed even if dismissal prevents her exercise of her right to an FMLA leave.")
Retaliation theory
The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a).
To establish a prima facie case of FMLA retaliation, a plaintiff must show she engaged in activity protected under FMLA, subsequent adverse action by the employer, and a causal connection between such activity and the employer's action. Richmond v. ONEOK, Inc., 120 F.3d 205, 208-09 (10th Cir. 1997). In analyzing FMLA retaliation claims, this court applies the traditional burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973). Richmond, 120 F.3d at 208. Under this framework, the defendant has an opportunity to rebut a prima facie case of retaliation by offering legitimate non-retaliatory reasons for the adverse action. Id. Once defendant offers such reasons, a plaintiff must present evidence that defendant's reasons are unworthy of belief in order to carry his or her ultimate burden of establishing intentional retaliation. See Gunnell v. Utah Valley State College, 152 F.3d 1253, 1263 (10th Cir. 1998) (explaining that plaintiff asserting retaliation claim has the ultimate burden to demonstrate that the challenged employment decision was the result of intentional retaliation).Vanmeveren v. Whirlpool Corp., 65 Fed. Appx. 698, 700, 2003 WL 21235475, 1 (10th Cir. May 29, 2003). See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
Defendant concedes that plaintiff meets the first two of the three elements for a prima facie case of retaliation by having taken FMLA leave for a serious health condition (engaging in protected activity), and subsequently being discharged (adverse action). Defendant denies only the third element — the causal connection between plaintiff's FMLA leave and her termination.
Assuming, without deciding, that plaintiff has shown a causal connection and thus established a prima facie case of retaliation, the burden shifts to defendant to articulate a legitimate, nonretaliatory reason for its decision. See English v. Colorado Dep't of Corrections, 248 F.3d 1002, 1008 (10th Cir. 2001) (citing McDonnell Douglas, 411 U.S. at 802). According to defendant, plaintiff was terminated because of her continuing poor performance and poor attitude. Defendant has thus satisfied its "exceedingly light" burden to provide nonretaliatory reasons for its decision. See Goodwin v. General Motors Corp., 275 F.3d 1005, 1013 (10th Cir. 2002).
Plaintiff may resist summary judgment only by presenting evidence that defendant's reasons are pretextual ( i.e., unworthy of belief) or by otherwise introducing evidence of a retaliatory motive. See Danville v. Regional Lab Corp., 292 F.3d 1246, 1250 (10th Cir. 2002) (citing Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1137 (10th Cir. 2000)). Pretext can be demonstrated by showing "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's . . . reasons for its action," which "a reasonable factfinder could rationally find . . . unworthy of credence." Morgan, 108 F.3d at 1323 (citations and internal quotations omitted). Mere conjecture that the employer's reason is pretext, however, will not defeat a motion for summary judgment. Id. Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997).
Plaintiff contends that pretext is shown by six pieces of circumstantial evidence. The first is the timing of plaintiff's termination. See Diffee Ford-Lincoln-Mercury, 298 F. 3d at 961. Plaintiff contends that because plaintiff's termination was not only proximate to her exercise of FMLA rights, but during her exercise of those rights, pretext is shown.
The court disagrees. The Tenth Circuit has clearly held that "close temporal proximity is a factor in showing pretext, yet is not alone sufficient to defeat summary judgment. Pastran v. K-Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000)." Annett v. University of Kansas, 371 F.3d 1233, 1240 (10th Cir. 2004). The Tenth Circuit has recently clarified that although temporal proximity may establish causation for purposes of establishing a prima facie case, it will not necessarily suffice to demonstrate pretext at the third prong of the McDonnell Douglas burden-shifting framework.
"The burden of establishing a prima facie case [in the McDonnell Douglas framework] is not onerous." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). It is because of this relatively lax burden that we allow temporal proximity between a protected activity and an adverse action to establish a prima facie case; for the same reason, we have not imported this lessened standard to pretext analysis where the burden is more demanding and requires a plaintiff to assume "the normal burden of any plaintiff to prove his or her case at trial." Flasher, 986 F.2d at 1316.Annett, 371 F.3d at 1241.
The fact that plaintiff was terminated during her FMLA reduced schedule leave, under the facts of this case, does little to advance plaintiff's position that her termination was based, even in part, upon her exercise of her right to leave. Cf. Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1397 (10th Cir. 1997) (noting that temporal proximity alone does not constitute pretext for retaliatory discharge under the Fair Labor Standards Act). Here, the fact that defendant reorganized plaintiff's department contemporaneously with plaintiff's leave undercuts the significance of the temporal proximity. Nothing about the timing of plaintiff's termination gives a finder of fact any reason to believe that plaintiff was more likely terminated because she took leave than because she demonstrated poor performance and attitude upon her part-time return to the reorganized department.
Plaintiff's second piece of circumstantial evidence consists of a pattern of adverse employment actions, which began soon after the plaintiff returned on reduced leave schedule on October 8, 2002. The parties agree that a causal connection may be shown by a pattern of retaliatory conduct that began soon after one's protected activity and finally resulted in adverse action. See Meiners v. University of Kansas, 239 F. Supp. 2d 1175, 1194 (D. Kan. 2002), aff'd 359 F.3d 1222 (10th Cir. 2004); Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996).
Plaintiff contends the pattern began with the formal counseling document Miller gave plaintiff on October 9, 2002. This document, however, was issued before plaintiff first submitted her request for FMLA leave on October 17, 2002, retroactive to Sept. 17. A plaintiff must demonstrate that the individual alleged to have taken an adverse action against her knew of the plaintiff's protected activity in order to establish a prima facie case of retaliation. See Petersen v. Utah Dept. of Corrections, 301 F.3d 1182, 1188-89 (10th Cir. 2002) (citing Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (re: Title VII). "Without knowledge, there is no inference of retaliatory conduct." Hysten v. Burlington Northern and Santa Fe R.Co, 44 Fed. Appx. 411, 416-418, 2002 WL 1923821 (10th Cir. Aug. 21, 2002); Watkins v. Henderson, 2001 WL 219807, *20 (S.D. Ind. 2001) (same re: FMLA).
Read in the light most favorable to plaintiff, the record shows, however, that Miller knew sometime prior to plaintiff's return to work on October 8, that plaintiff intended to invoke her FMLA rights as to her prior absence. For purposes of this motion, the court finds plaintiff has sufficiently shown that Miller was aware of plaintiff's intent to request FMLA leave prior to the date Miller issued the counseling document, such that this document can be part of the pattern of adverse acts. The court further assumes, without deciding, that the counseling document could be considered to be an adverse employment action.
The other events alleged to constitute a pattern of adverse actions are Miller's assigning new job duties to the plaintiff, failing to adequately train her to perform new job duties, and imposing unreasonable deadlines within which plaintiff was to complete the new job duties. Plaintiff has failed to raise a material question of fact that these events, all expressly related to plaintiff's "new duties," were adverse actions more likely to have been caused by defendant's retaliation than by defendant's reorganization.
Plaintiff contends not only that the pattern culminated in the plaintiff's discharge on November 15, 2002, but also that the discharge is part of the pattern of adverse events. The court rejects as illogical plaintiff's invitation to consider her termination to be one of the adverse acts within the pattern of events leading to her termination. See Meiners, 239 F. Supp. 2d at 1194 ("The denial of tenure by default cannot logically be part of the pattern of retaliatory conduct which links plaintiff's protected activity to the denial of tenure by default.")
Thus the sole event that a jury could consider to be contained within the alleged "pattern" of adverse actions is the October 9th counseling document. This one adverse act is not sufficient to constitute a pattern supporting an inference of a causal connection. Compare Meiners, 359 F.3d at 1232 (where alleged "pattern" consisted only of the denial of graduate faculty status and the denial of default tenure itself, the so-called "pattern" did not support an inference of a causal connection); with Marx, 76 F.3d at 329 (pattern existed where plaintiff was "written up" following his FLSA complaint, demoted for lying about discussions relating to a FLSA questionnaire, harassed by use of discovery in his FLSA suit to dredge up information concerning unrelated wrongdoings, then terminated.)
Plaintiff's third piece of circumstantial evidence consists of the difference between FHLB's evaluation of plaintiff after October 8, 2002, and defendant's prior treatment of the plaintiff. See Simms v. Oklahoma ex rel Dept. of Mental Health, 165 F.3d 1321, 1328 (10th Cir. 1999). Prior to October 8, 2002, plaintiff had never received a written counseling statement from any of her managers, and had received overall performance ratings of "Meets Expectations" from 1997 through 2001. After her reduced leave schedule began, plaintiff received the October 9th formal counseling document from Miller, then was discharged on November 15, 2002.
Prior good evaluations alone cannot establish that later unsatisfactory evaluations are pretextual.
"Pretext is not established by virtue of the fact that an employee has received some favorable comments in some categories or has, in the past, received some good evaluations." Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1992).Perry v. St. Joseph Regional Medical Center, 2004 WL 1903507 (10th Cir., Aug. 26, 2004). Cf, Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994) (simply because an employee receives an evaluation lower than previous evaluations, the lower evaluation cannot be assumed to be a negative evaluation for the purposes of a retaliation claim).
Where, as here, the events leading to one's termination occur after positive evaluations have been received, the value of prior evaluations is lessened.
Although prior employment history may be probative in some situations, prior performance evaluations do not, by themselves, establish that a later unsatisfactory evaluation is pretextual. (Citations omitted.) "To hold otherwise would be to hold that things never change, a proposition clearly without basis in reality." Billet, 940 F.2d at 826; see also Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998) (holding that prior performance evaluations "cannot, by themselves, demonstrate the adequacy of performance at the crucial time when the [adverse] employment action is taken"). [Plaintiff's] mere opinion that his performance had not changed since his prior evaluations is not enough to defeat summary judgment. See Fallis v. Kerr-McGee Corp., 944 F.2d 743, 747 (10th Cir. 1991) ("This circuit's view is that a plaintiff cannot prevail by merely challenging in general terms the accuracy of a performance evaluation which the employer relied on in making an employment decision without any additional evidence."); Branson, 853 F.2d at 772.Eilam v. Children's Hosp. Ass'n, 173 F.3d 863, 1999 WL 176128, *4 (10th Cir. 1999).
Additionally, the record fails to support plaintiff's implication that her evaluations prior to October 8 were distinctively better than plaintiff's records after that date. For example, in Montgomery's annual performance evaluation of plaintiff for calendar year 2000, which rated plaintiff's work overall as "meets expectations," Montgomery included the following "areas for improvement":
I'd suggest trying to maintain a positive and accepting attitude toward teammates and coworkers. Generally you do, but there are times when you seem to become noticeably dissatisfied when things don't turn out exactly as we might hope . . . I'm concerned that sometimes your negativism is causing others, developers and even team members, to feel you are unapproachable at times. Try to be more accepting of the developers' efforts, even when their results fall short of your expectations. Help find solutions, not faults. The departments, especially the developers, need to feel you're an ally.
Dk.51, Appendix B, Miller Deposition Exhibit 9. See also Dk. 51, Appendix B, Miller Deposition Exhibit 8 (plaintiff's annual performance evaluation for calendar year 2001, recommending in "areas for improvement" that plaintiff work on her general NT and network knowledge by taking certain classes.)
The concerns about plaintiff's job skills and attitude prior to October 8th were not unique to Montgomery or Miller. In March of 2002, Hodges, (IT Director Andruss's supervisor), questioned whether plaintiff should remain employed after the reorganization. He was of the opinion that Plaintiff had "retired on the job." Andruss saw Plaintiff as "on the bubble," meaning immediate improvement of her skill set was necessary. Further, Smith, who had expertise in database administration and was not in the chain of command at plaintiff's workplace, concluded in his June 24, 2002, report that plaintiff was a "possible fit" for the DBA position in the reorganized IT department, but found both plaintiff's attitude and skill set left room for improvement. In short, the documentation of plaintiff's job skills and attitude prior to October 8 is not so distinctively different from documentation of the same after that date as to raise a material question of fact that the latter was pretextual.
The fourth piece of evidence plaintiff relies upon is "evidence that the defendant acted contrary to a written policy prescribing the action to be taken by the defendant under the circumstances." Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). Plaintiff relies upon FHLB's Employee Handbook, which prescribes that an employee "will be informed if corrective action is necessary as soon as possible after any deficiency in standard of behavior or performance has been identified." Dk. 51, Exh. C, p. VIII-1. Plaintiff states that this policy was violated because during her meetings with her managers on November 7 and November 13, 2002, she was not informed that her work performance was so deficient that her job was in jeopardy.
The facts, viewed in the light most favorable to plaintiff, are insufficient to fall within the Kendrick rule, above. Defendant's policy did not require a warning to plaintiff that her performance was so deficient that she was at risk of termination. Defendant did inform plaintiff, however, during her counseling sessions on November 7 and 13 that corrective action was necessary, as the policy requires.
But even assuming that defendant was required to tell plaintiff that her performance was so deficient that she was at risk of termination, the uncontested facts show that it did so. The written counseling document that plaintiff admits having received, dated October 9, warned plaintiff that unless she improved in certain areas, she could be subject to further discipline, including termination. It states:
If these items do not dramatically improve within the next 2 weeks or other deadlines established, you will be counseled further, up to and including termination.
Dk. 51, App. A, Exh. 2. Plaintiff admits that she was counseled several times thereafter prior to her termination in November. Plaintiff's chief complaint is that this counseling document did not inform her of the primary deficiency in her work performance which ostensibly caused her termination — missing deadlines for specific projects. Nonetheless, Cox testified that she told plaintiff after one of their weekly meetings that if plaintiff did not start meeting some of the project deadlines, she was going to be terminated. Dk. 51, Exh J, Cox depo., p. 134. This testimony is uncontradicted.
Plaintiff attempts to contradict Cox's testimony by her affidavit stating that on two specific dates she met with three persons, and "during these meetings, was not informed that [her] work performance was so deficient that [her] job was in jeopardy." Dk. 55, App. Exh. 1, p. 4, para. 16. That no such statement was made during a meeting on those two dates fails to contradict Cox's statement that she told plaintiff such after a meeting on some unspecified date.
Nor could a jury reasonably find that the disciplinary measures taken with plaintiff demonstrate a "disturbing procedural irregularity" of the type necessary to support a finding of pretext. Cf. Simms v. Oklahoma ex rel. Dep't of Mental Health Abuse Serv., 165 F.3d 1321, 1329 (10th Cir. 1999) (concluding procedural irregularities in defendant's hiring process did not support inference of pretext where plaintiff failed to show the process used by defendant was inconsistent with published policies).
The fifth piece of circumstantial evidence consists of defendant's documentation of plaintiff's file in anticipation of litigation. In support of this theory, plaintiff relies solely upon Pastran v. K-Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000), which found that a boss's statement to a manager to prepare statements in anticipation of litigation could be considered as circumstantial evidence of a retaliatory motive.
Pastran lends no support for plaintiff's assertion that documenting plaintiff's file in anticipation of litigation helps show pretext in this case. In Pastran, the planitiff had called the employer to ask whether he had lost his job. The manager replied that he was not sure, then consulted with his boss and the legal department about how to handle plaintiff's termination and how to prepare statements regarding past events. The manager then told plaintiff that he was fired. Pastran, 210 F.3d at 1204. Under those facts, a jury could reasonably find that any performance deficiencies stated in documents created after the fact and in anticipation of litigation, had merely been contrived to create the appearance of a non-discriminatory reason for termination. Thus it was the suspicious timing of the documentation that gave rise to a negative inference.
Here, in Miller's memorandum of November 11, 2002, she acknowledges that she "was to document the problems enough so the Bank was not at risk of losing a lawsuit for unjustified termination." Dk. 56, Depo. Exh. 48. Miller and others, including Andruss and Cox, did document plaintiff's file. But the record indicates that the documentation was done contemporaneously with the problems documented. See Dk. 56, Depo. Exh. 48, p. 3-4 (Miller's statement she was "documenting everything every day.")
Although the post-hoc documentation in Pastran was sufficient to raise a negative inference, the contemporaneous documentation of events by defendant in this case raises no inference of a retaliatory motive. An employer's contemporaneous documentation of events which may later be relevant to a lawsuit is a sound and widespread business practice. See Billet v. CIGNA Corp., 940 F.2d 812, 826 (3rd Cir. 1991), overruled in part on other grounds by St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). It is the lack of documentation in an employee's file that more often gives rise to an inference of retaliation. See Baggett v. Program Resources, Inc., 806 F.2d 178, 181 (8th Cir. 1986) (finding defendant's reasons to be pretextual since none of the alleged performance deficiencies was documented in Baggett's personnel file). Because plaintiff has failed to raise a material question of fact that defendant's documentation of plaintiff's file was not done contemporaneously with the events noted therein, or that the documentation was otherwise suspicious, no inference of pretext is shown by this evidence.
The final piece of evidence is alleged to be "proof that the defendant's explanation is unworthy of credence." In support, plaintiff contends only that she disputes many of FHLB's proffered explanations for its actions. Generally, plaintiff contends that the deadlines she missed were unreasonable, that her attitude was not as bad as defendant states, that her knowledge and performance were better than defendant alleges, and that others' assessments of her attitudes and abilities were wrong.
Plaintiff fails to realize that it is the manager's perception of the employee's performance that is relevant, not plaintiff's subjective evaluation of her own relative performance.
'[T]he pertinent question in determining pretext is not whether the employer was right to think the employee engaged in misconduct, but whether that belief was genuine or pretextual.'" Id. (quoting Hardy v. S.F. Phosphates L.C., 185 F.3d 1076, 1080 (10th Cir. 1999)). "The test is good faith belief." McKnight, 149 F.3d at 1129. Accordingly, "'[i]t is the manager's perception of the employee's performance that is relevant, not plaintiff's subjective evaluation of [her] own relative performance.'" Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th Cir. 1999) (quoting Furr v. Seagate Tech. Inc., 82 F.3d 980, 988 (10th Cir. 1996)).Tran v. Trustees of State Colleges in Colorado, 355 F.3d 1263, 1270 (10th Cir. 2004).
Plaintiff's allegation that a reasonable jury could find that joint decisionmakers, Miller, Andrus, and Cox "were all biased against the plaintiff because she had exercised her rights under the FMLA," Dk.61, p. 15, is unsupported by evidence creating a genuine issue of material fact. "Even though all doubts must be resolved in [plaintiff's] favor, allegations alone will not defeat summary judgment." Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994), citing Celotex, 477 U.S. at 324. The record does not show that the reasons proffered by the defendant are so weak, implausible, inconsistent, incoherent, or contradictory as to support a reasonable inference that defendant did not act for those reasons. Whether considered separately or in conjunction with others, defendant's six pieces of circumstantial evidence fail to meet plaintiff's burden to show pretext. See Testerman v. EDS Technical Prod. Corp., 98 F.3d 297, 306 (7th Cir. 1996) ("Adding together a string of nothings still yields nothing.") Plaintiff's evidence could persuade no reasonable jury that FHLB retaliated against her for her exercise of protected rights under the FMLA.
Alternatively, plaintiff contends in her surreply memorandum that a reasonable jury could find that Hodges, Jetter, Andrus and Cox failed to independently investigate Miller's recommendation to terminate plaintiff's employment. Id. See English v. Colorado Dept. of Corrections, 248 F.3d 1002, 1011 (10th Cir. 2001) (holding a defendant may be held liable for a subordinate employee's prejudice even if the decisionmaker lacked discriminatory intent where the decisionmaker followed the biased recommendation of a subordinate without independently investigating the complaint against the employee.) Plaintiff's initial assertion of this rubber-stamp or "cat's paw" theory in her surreply memorandum violates the prohibition on raising new arguments and issues in a reply brief. See Boilermaker-Blacksmith Nat. Pension Fund v. Gendron, 67 F. Supp. 2d 1250, 1257 n. 4 (D.Kan. 1999). The Court will not consider new theories presented in a surreply brief when that issue was not raised in the initial response to a motion for summary judgment. Cf Thurston v. Page, 931 F. Supp. 765, 768 (D. Kan. 1996). Hence, the court disregards plaintiff's cat's paw argument.
IT IS THEREFORE ORDERED that plaintiff's motion for leave to file a surreply (Dk. 61) is granted.
IT IS FURTHER ORDERED that defendant's motion for summary judgment (Dk. 50) is granted.