Opinion
Case No. CIV-09-0990-F.
July 19, 2010
ORDER
Before the court is Defendant Crest Discount Foods, Inc.'s Motion for Summary Judgment, filed May 3, 2010 (doc. no. 27). The briefing is complete, and the matter is ready to be determined.
The court notes that defendant's reply brief was not filed within 7 days as required by LCvR 7.1(i). However, pursuant to LCvR 1.2(c), the court accepts the reply brief for consideration in its adjudication of defendant's motion.
Background
In her First Amended Complaint, plaintiff, Sheila McKeel, alleges that she was terminated from her employment with defendant, Crest Discount Foods, Inc., on the basis of her gender, race/national origin, age and disability. Plaintiff seeks relief for the alleged unlawful discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and under Oklahoma law. Plaintiff additionally seeks relief under the Oklahoma Workers' Compensation Act, 85 O.S. § 2001[85-2001] § 5(A), alleging retaliatory discharge. Further, plaintiff seeks relief under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., alleging interference with and retaliation for the exercise of her FMLA rights. Defendant moves for summary judgment on all of plaintiff's claims. Plaintiff, in response to defendant's motion, concedes the gender, race/national origin, age and disability discrimination claims (including the related Burk tort claims). The court therefore finds that defendant is entitled to summary judgment on the discrimination claims. The remainder of this order addresses defendant's motion with respect to plaintiff's retaliatory discharge claim and plaintiff's FMLA claims.
Reading plaintiff's state court petition and her amended complaint in this court together, plaintiff has alleged, by the court's count, seven separate factual bases upon which she claimed discrimination or retaliation — or eight if her national origin and reverse racial discrimination claims are treated separately (she alleged in state court and in this court that she is "white," as distinguished from the men of Lebanese ancestry who ran the stores. Doc. no. 1, Ex. 1, ¶ 12; Doc. no. 11, p. 5, ¶ 12). At various stages of this litigation, plaintiff advanced those factual premises in support of at least ten legal theories (including the Burk tort claims). Her various gender, race, national origin, age and disability claims warranted nothing more than a one-sentence concession in her response to defendant's motion for summary judgment. Doc. no. 34, at 15. In conceding these claims, plaintiff has given up nothing at all. The fact that an individual, considering herself to be aggrieved by an employment-related decision, may, as a matter of anatomy, age, disability, race, national origin, or status as a workers' compensation claimant, fall within the compass of an employment discrimination statute, does not mean that these theories may responsibly be strung together in a pleading like so many beads on a string. State and federal pleading rules demand more than that.
Standards
Under Rule 56(c), Fed.R.Civ.P., summary judgment shall be granted if the record shows that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." The moving party has the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining whether a genuine issue of a material fact exists, the evidence is to be taken in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). All reasonable inferences to be drawn from the undisputed facts are to be determined in a light most favorable to the non-movant. United States v. Agri Services, Inc., 81 F.3d 1002, 1005 (10th Cir. 1996). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials, demonstrating that there is a genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).
Relevant Facts
The following relevant facts are either undisputed or viewed in a light most favorable to plaintiff, the non-movant. Defendant operates a total of six grocery stores (identified by number) in the Oklahoma City metro area. Plaintiff was hired by defendant in February 2002 as a bakery/deli manager for defendant's No. 4 store in Moore. Plaintiff stayed at the No. 4 store for about three or four months. She was then moved to defendant's No. 3 store in Edmond.
In August 2002, plaintiff was promoted to the position of corporate buyer for the bakery/deli departments for all of defendant's stores. As the corporate buyer, plaintiff was responsible for (1) buying product; (2) monitoring and maintaining inventory levels; (3) monitoring pricing; (3) participating in the hiring and transfer of bakery/deli managers; (4) providing supervision and management to all bakery/deli managers and employees; and (5) maintaining cleanliness of the bakery/deli departments.
On January 8, 2007, plaintiff, while getting out of her car at work, slipped and fell on some ice. Plaintiff injured her knee and hip. Plaintiff reported her injury to defendant on February 12, 2007. Defendant filed a Form 2 with the Oklahoma Workers' Compensation Court on February 13, 2007, initiating the benefits process. Plaintiff was directed by Lee Simons, defendant's human resources director, to get medical treatment, which she did. On February 14, 2007, plaintiff received a written warning from Mike Biggers, defendant's general manager, for not reporting her workplace injury in a timely manner.
Plaintiff had a bill from her private doctor for treatment of her workplace injury. Mr. Simons told plaintiff that he wanted her to pay the bill herself. Thereafter, plaintiff inquired of Mr. Biggers as to what she should do with the bill. Mr. Biggers informed her that she should turn in the doctor's bill for payment. When she supplied the bill to Mr. Simons, it was paid without further comment or dispute.
On April 12, 2007, plaintiff slipped and fell on water at work and injured her left knee, hands and elbows. Plaintiff reported this injury the same day. Plaintiff asked Mr. Simons if he wanted her to go to the doctor and he said no. Plaintiff did not tell Mr. Simons that she felt that she needed to see a doctor.
In October 2007, defendant investigated the bakery/deli inventory levels in its freezers at various locations. Sam Homsey, a manager in training, found bakery/deli product at the No. 3 store that was out of date, and Mr. Homsey was critical of plaintiff. He also found out-of-date product in coolers at other stores. The product was thrown away. Plaintiff testified that out-of-date bakery/deli product constituted "normal overages" and none were "out of line." Ex. 1 to plaintiff's response, p. 49, ll. 21-22; p. 50, l. 4.
In June 2008, plaintiff received a performance-based salary increase.
In July 2008, plaintiff requested time off of work for knee surgery. Mr. Harroz agreed that plaintiff needed the surgery but asked plaintiff to wait until either after a holiday or monthly inventory and after she had done all her "stuff." Ex. 1 to defendant's brief in support of its motion, p. 114, ll. 5-23.
Around August 2008, Mr. Harroz transferred plaintiff to defendant's No. 5 store in northwest Oklahoma City. Plaintiff testified that she was sent to fix problems with the store. Ex. 1 to plaintiff's response, p. 42, ll. 11-12.
Employees under plaintiff's supervision complained that she did not visit each of defendant's stores and that when she did say she would visit, she would often fail to show up as expected. Plaintiff testified that she did not show up because Mr. Harroz would have her doing something else. He would not give her the time to go to the store. Ex. 1 to defendant's brief in support of its motion, p. 56, ll. 6-10.
Employees under plaintiff's supervision complained about plaintiff's management style, including a lack of proper training provided by plaintiff, a lack of adequate supervision, improper inventory control, improper managerial decisions, such as disciplining the employees of her supervisors without including the supervisors in the process, over-ordering product, failing to follow company protocol regarding the discard of out-of-date product and failing to provide job descriptions. They also complained about her failure to follow proper protocol for the transfer of products from one store to another.
A store manager also complained of plaintiff's response to his request to average some of the prices of a line of breads being displayed in four baskets at the end of a displayer.
Another store manager complained of invoice problems created for vendors by plaintiff's failure to properly record price changes.
As part of her job, plaintiff submitted a monthly travel log showing where she went as part of her job duties for purposes of reimbursement. The monthly travel log showed that during the weeks of August 2, 2008 and August 21, 2008, plaintiff did not visit Store Nos. 1 and 2. It also showed that during the week of August 2, 2008, plaintiff did not visit Store No. 4 and visited Store No. 6 for 15 minutes. It additionally showed that she did not visit Store No. 6 during the week of August 21, 2008. The monthly travel log further showed that during the week of September 1, 2008, plaintiff did not visit Store Nos. 1, 2, 4 and 6. It further showed that between September 13 and 25 (the day before her dismissal), plaintiff did not visit Store Nos. 1, 2 and 4 and visited Store No. 6 once for 12 minutes.
Mr. Harroz terminated plaintiff's employment on September 26, 2008. Mr. Harroz indicated to plaintiff that the reason for her termination was poor job performance. Plaintiff testified that during the meeting she was asked by Mr. Harroz to sign a "resignation paper" and was told that if she did sign it, he would not blackball her and he would give her a good job reference. Plaintiff refused to sign the paper. She questioned Mr. Harroz as to how he could "say that my job performance is bad when . . . I've done everything that you've asked me to do. . . . We've got 320 some thousand dollars above and beyond what we regularly make in the . . . deli. And — just sitting in the bak. And I told him, I said, Your shelves are up almost 50 percent over last year in both departments." Ex. 1 to plaintiff's response, p. 42, ll. 2-16. Plaintiff also stated that Mr. Harroz had sent her to "fix" Store No. 5 and that they had "already brought [sales] up some there." Id. She also stated that it would take a while to bring the sales up more, "but that at least started." Id. In addition, according to plaintiff, the day she was terminated, Mr. Harroz told plaintiff that she had taken too much time off. Ex. 2 to plaintiff's response.
Discussion
Retaliatory Discharge Claim
Section 5(A) of Title 85 of the Oklahoma Statutes prohibits an employer from discharging an employee because the employee has in good faith filed a claim; retained a lawyer for representation regarding a claim; instituted or caused to be instituted any proceeding under the Workers' Compensation Act; testified or is about to testify in any proceeding under the Workers' Compensation Act; and elected to participate or not to participate in a certified workplace medical plan. To establish a prima facie case of retaliatory discharge under section 5(A), the plaintiff must prove the following four elements: (1) employment, (2) on-the-job injury, (3) receipt of treatment under circumstances which should put the employer on notice that treatment had been rendered for a work-related injury, or that the employee in good faith instituted or caused to be instituted proceedings under the Workers' Compensation Act, and (4) consequent termination.Buckner v. General Motors Corp., 760 P.2d 803, 806 (Okla. 1988). If the plaintiff establishes a prima facie case, the burden shifts to the defendant employer to rebut the inference of a retaliatory motive by articulating a legitimate, non-retaliatory reason for the termination. Blackwell v. Shelter Mut. Ins. Co., 109 F.3d 1550, 1554 (10th Cir. 1997) (citing Buckner, 760 P.2d at 806). The defendant's burden is simply one of production, not persuasion. Id. (citing Buckner, 760 P.2d at 807). If the defendant satisfies this burden, the presumption of retaliatory motive is successfully rebutted. Id. At that point, the plaintiff can only prevail by proving that her termination was significantly motivated by retaliation for her exercise of statutory rights, or by proving that the defendant's proffered reason for the discharge was pretextual. Id.
Prima Facie Case
In the instant case, defendant does not dispute, for summary judgment purposes, that plaintiff can establish the first three elements of the prima facie case. The focus of defendant's motion is on the fourth element — whether a consequent termination occurred.
To establish the fourth element of the prima facie case, consequent termination, plaintiff must produce evidence sufficient to support a legal inference that her termination was "significantly motivated" by retaliation for exercising her statutory rights. Blackwell, 109 F.3d at 1554 (footnote omitted) (citing Wallace v. Halliburton Co., 850 P.2d 1056, 1058 (Okla. 1993) and Taylor v. Cache Creek Nursing Centers, 891 P.2d 607, 610 (Okla. Ct. App. 1994)).
Plaintiff asserts that her termination was triggered by her request to Mr. Harroz in July 2008 for time off for her knee surgery. The court notes that, to establish consequent termination, plaintiff must show more than temporal proximity between her termination and her advising Mr. Harroz of the need for time off for surgery for her workplace injury. See, Thompson v. Medley Material Handling, Inc., 732 P.2d 461, 464 (Okla. 1987) and Taylor, 891 P.2d at 610 (finding that evidence that the employee was fired shortly after the protected activity, by itself, is insufficient to raise a legal inference that the firing was significantly motivated by the retaliation); see also,Estrada v. Port City Properties, Inc., 158 P.3d 495, 499 (Okla. Ct. App. 2007) ("timing of the discharge may constitute evidence of retaliatory motive, but is not outcome determinative.") (emphasis in original). Having examined the evidence in the record in a light most favorable to plaintiff, the court does not believe that a reasonable jury could conclude her termination was significantly motivated by retaliation for her claim under the Oklahoma Workers' Compensation Act. The court concludes that evidence of Mr. Simons' initial reaction to plaintiff's first workers' compensation claim — telling her to pay her doctor bill herself; Mr. Biggers' written warning to plaintiff for not reporting her injury in a timely manner; plaintiff's raise prior to her request for time off for knee surgery; Mr. Harroz's response to plaintiff's request for time off for knee surgery (to wait until after a holiday or monthly inventory); and Mr. Harroz telling plaintiff on the day of her termination that she had taken too much time off — is not sufficient to establish a nexus between the termination and the exercise of plaintiff's statutory rights. Blackwell, 109 F.3d at 1556. The court concludes that the evidence in the record does not have sufficient probative value to provide the basis for an inference that plaintiff's termination was motivated by retaliation for exercising her statutory rights. In the court's view, any reasons for plaintiff's discharge, other than as stated by defendant, can only be deduced by pure speculation. Thompson, 732 P.2d at 464.
In the Taylor v. Cache Creek Nursing Centers case, the defendant fired the plaintiff immediately after returning from a two-week, doctor-ordered disability leave. Taylor, 891 P.2d at 609. The appellate court found that the plaintiff could not establish a prima facie case because the plaintiff failed to show her termination was a consequence of filing a workers' compensation claim. Id. at 610. It was significant to the court that it found no evidence "showing a pattern of termination of workers who filed [workers' compensation] claims, or of pressure put on workers not to file claims." Id. The court also found no allegation that the supervisor or any other employer representative referred to the claim. Id. Furthermore, the court concluded that the fact that the plaintiff was fired immediately after returning from disability leave was insufficient to raise a legal inference that the termination was significantly motivated by retaliation. Id.
Similarly, in the Thompson v. Medley Material Handling, Inc. case, the defendant fired the plaintiff six weeks after the plaintiff filed a workers' compensation claim for an on-the-job injury. Thompson, 732 P.2d at 464. Notwithstanding the temporal proximity of the claim to the termination, the court held that the plaintiff failed to establish that the filing of the claim had any effect on the defendant's decision to terminate his employment. The court noted that the plaintiff did not allege that his supervisors or others made any statements that suggested a connection between the termination and the assertion of the workers' compensation claim. Id.
In the case at bar, as in the Taylor case, there is no evidence that defendant engaged in a pattern of terminating or otherwise discriminating against employees who engaged in protected activity under the Oklahoma Workers' Compensation Act. Although there is evidence that Mr. Simons told plaintiff to pay her doctor's bill after she notified defendant of her workplace injury, there is no evidence that Mr. Harroz, the actual decision maker in this case, put any pressure on plaintiff to not file a claim. Moreover, the evidence shows that when plaintiff went to Mr. Biggers, the general manager, after Mr. Simons' comment to plaintiff, Mr. Biggers told plaintiff to turn in the bill for payment. And it is undisputed by plaintiff that the bill was paid without further comment or dispute. Furthermore, as in Taylor andThompson, there is no allegation that Mr. Harroz made any specific reference to the workers' compensation claim in regard to his decision to terminate her employment. Although Plaintiff asserts that Mr. Harroz told her on the day she was terminated that she had taken too much time off and that he threatened to blackball her if she did not sign the "resignation paper," there is no evidence that these comments were in any way related to her workplace injury or to the filing of any workers' compensation claim.
In the Wallace v. Halliburton Co. case, the Oklahoma Supreme Court found sufficient evidence to establish "consequent termination." Wallace, 850 P.2d at 1059. This evidence included: (1) plaintiff's firing 37 days after filing his claim; (2) supervisors knowing of his injury and claim; (3) plaintiff, prior to his injury, being rated competent or commendable in most areas of his work and recently receiving a promotion and raise; (4) employees being encouraged to submit claims relating to work-related injuries under defendant's self-health insurance rather than under workers' compensation; (5) plaintiff and another employee filing for previous injuries under their health insurance rather than applying for workers' compensation; (6) a supervisor from a different plant being mad when employee said he was going to file a workers' compensation claim; (7) plaintiff and another employee saying they were worried about being discharged if they filed a claim for workers' compensation; (8) other employees being less qualified than plaintiff but not filing workers' compensation claims were not let go; and (9) a pattern of defendant terminating employees filing workers' compensation claims. Id.
In the case at bar, the evidence which is similar to that noted in Wallace is the short time period between the termination and plaintiff's request for time off for knee surgery (about eight weeks), Mr. Harroz's knowledge of plaintiff's injury and workers' compensation claims, plaintiff being given a raise shortly before her request for time off for surgery, and Mr. Simons advising plaintiff to pay a doctor bill herself. However, unlike Wallace, there is no evidence of a pattern of terminating employees who filed workers' compensation claims or any employee being worried about being discharged for filing a workers' compensation claim. See also, Pettit v. Dolese Brothers Co., 943 P.2d 161, 164 (Okla. Ct. App. 1997) (testimony from co-worker that he did not file a workers' compensation claim because "`[a]t the time you could be terminated if you filed'" for compensation benefits). While there is evidence that plaintiff was disciplined (written warning) for not reporting her injury in a timely manner, there is no evidence that Mr. Harroz or any supervisor harbored animus against plaintiff or any other employee for filing a workers' compensation claim or that any comments were made to plaintiff or any other employee relating to the filing of a workers' compensation claim. See also, Kennedy v. Builders Warehouse, Inc., 208 P.3d 474, 478 (Okla. Ct. App. 2008) (employee's supervisor told employee that the owner would "hit the roof" if employee hired a lawyer and filed a workers' compensation claim);Mosley v. Truckstops Corp. of America, 891 P.2d 577, 585 (Okla. 1993) (employer informed employee that if he filed a workers' compensation claim, he could be fired for not following employer's procedure); Elzey v. Forrest, 739 P.2d 999, 1003 (Okla. 1987) (employer informing employee that employee would be jeopardizing his employment if he continued to see doctors whose practices were significantly associated with workers' compensation claimants and employer informing employee that he was being discharged for filing a workers' compensation claim);Pettit, 943 P.2d at 164 (testimony from another co-worker that employer quit talking to him when he hired an attorney to handle workers' compensation claim and next response from employer was a termination letter); Mantha v. Liquid Carbonic Industries, Inc., 839 P.2d 200, 204 (Okla. Ct. App. 1992) (statement by co-worker who was to be drivers' new boss that workers' compensation claims would not be tolerated and statement by district manager to drivers that if they thought they were going to get rich filing workers' compensation claims, they had better think again). Moreover, contrary to plaintiff's arguments, the evidence does not show that Mr. Harroz refused or denied plaintiff's request for time off for knee surgery. He asked plaintiff to wait until after a holiday or monthly inventory. There is no evidence in the record that the knee surgery was an emergency. Additionally, there is no evidence of any employees seeking benefits for previous injuries under their own health insurance rather than by way of workers' compensation insurance. Furthermore, as previously stated, while Mr. Simons told plaintiff to pay her own bill, Mr. Biggers told plaintiff to turn the bill in for payment. Finally, while the evidence shows that at least eight weeks elapsed between plaintiff's request for time off for surgery and her termination, more than a year elapsed between the actual filing of plaintiff's workers' compensation claims and her termination. As stated, the plaintiff in Wallace was fired 37 days after filing his claim.
Viewing the evidence in a light most favorable to plaintiff, the court cannot conclude that the evidence is sufficient to support a legal inference that plaintiff's discharge was significantly motivated by retaliation for exercising her statutory rights. The evidence does not demonstrate that plaintiff's termination and her claims under the Oklahoma Workers' Compensation Act were connected. Although plaintiff does not need to present evidence to meet a "but for" standard, see,Wallace, 850 P.2d at 1059, she must present evidence which does more than show that the institution of proceedings was "only one of many possible factors resulting in [plaintiff's] discharge." Id. The evidence in the record does not demonstrate that plaintiff's claims were more than one of many possible factors resulting in her termination. Thus, the court concludes that plaintiff cannot establish "consequent termination" and cannot establish a prima facie case of retaliatory discharge.
Even if the court were to find that plaintiff can establish a prima facie case, the court concludes that plaintiff cannot establish that she was a victim of retaliatory discharge. In its motion, defendant has produced sufficient evidence of a facially legitimate, non-retaliatory reason for terminating plaintiff — poor work performance. Defendants' brief in support of its motion, Undisputed Material Facts, ¶¶ 8-13; see also, Buckner, 860 P.2d at 807 (employer must set forth clearly, through the introduction of admissible evidence, the reasons for the employee's termination). Because defendant has met its burden of production, the presumption of the prima facie case is rebutted and the factual inquiry proceeds to a new level of specificity.Bishop v. Hale-Halsell Co., Inc., 800 P.2d 232, 234 (Okla. 1990). To avoid summary judgment, plaintiff must demonstrate that a genuine issue of material fact exists concerning whether plaintiff has shown that either her termination was significantly motivated by retaliation for her exercise of statutory rights, or that defendant's proffered explanation is unworthy of belief. Id. Plaintiff contends that the evidence establishes a genuine issue of fact as to whether defendant's stated explanation was unworthy of belief. Plaintiff specifically points to evidence that she was given a raise for her performance in June of 2008, that she had been transferred to Store No. 5 in August 2008 to solve problems at that store, that sales were up at that store, that she had substantially increased profits in her departments and that "shelves are up almost 50 percent over last year in both departments." Ex. 1 to plaintiff's response, p. 42, ll. 2-16. The court, however, concludes that this evidence is not sufficient to show that defendant's stated explanation is unworthy of belief. Despite the fact that plaintiff may have had a raise in June of 2008 and may have improved the financial performance of her departments, plaintiff does not dispute her failure to visit deli departments at other stores, setting meetings with subordinates and then not appearing, or complaints made by subordinates about plaintiff's management style, lack of adequate supervision, improper inventory control, improper managerial decisions, over-ordering product, failure to follow company protocol, and failing to provide job descriptions. Plaintiff does not dispute any of the facts cited by defendant demonstrating her poor performance. Although some of the conduct occurred prior to June 2008, plaintiff does not dispute that much of the complained of conduct occurred after June 2008, including complaints from the manager of Store No. 5, and that it was conveyed to defendant's management prior to her termination in September 2008. The legitimate, non-retaliatory business reason for plaintiff's discharge has nothing to do with turning a profit but with failing to properly manage the bakery/deli departments under her supervision and failing to follow established company protocol. In the court's view, the evidence presented by plaintiff does not raise a genuine issue of fact as to whether defendant's stated explanation for plaintiff's termination is unworthy of belief.
On the basis of plaintiff's inability to establish consequent termination and her inability to demonstrate that she was a victim of retaliatory discharge, the court concludes that defendant is entitled to summary judgment on plaintiff's retaliatory discharge claim.
FMLA Claims
Plaintiff asserts two claims under the FMLA: (1) that defendant interfered with her right to take FMLA leave, in violation of 29 U.S.C. § 2615(a)(1); and (2) that defendant retaliated against her for attempting to take leave, in violation of 29 U.S.C. § 2615(a)(2).
To establish an interference claim, plaintiff must show that: (1) she was entitled to FMLA leave; (2) some adverse action by defendant interfered with her right to take FMLA leave; and (3) defendant's action was related to the exercise or attempted exercise of her FMLA rights. Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). To make out a prima facie retaliation claim, plaintiff must show that: (1) she engaged in a protected activity; (2) defendant took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action. Id.
As for the interference claim, there is no dispute between the parties that plaintiff can satisfy the first element of her claim. The second element — some adverse action by defendant interfered with plaintiff's right to take FMLA leave — appears to be disputed as defendant maintains that Mr. Harroz did not refuse plaintiff's request for time off for knee surgery. To satisfy the second element of an interference claim, plaintiff must show that she was prevented from taking the full 12 weeks of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave. Campbell, 478 F.3d at 1287. Plaintiff maintains that Mr. Harroz not only denied her request for leave but also terminated her employment so as to prevent her from taking the FMLA leave. Although the evidence in the record, as previously stated, does not support plaintiff's argument that defendant denied her request for leave, the court, for summary judgment purposes, assumes that plaintiff can satisfy the second element due to her termination. See, Gunnell v. Utah Valley State College, 152 F.3d 1253, 1261 (10th Cir. 1998) (plaintiff "alleging that employer interfered with her exercise of her FMLA rights by ending her employment, which effectively denied her FMLA leave request"). Because plaintiff can satisfy the first two elements of her interference claim, the court must decide whether, viewing the record in a light most favorable to plaintiff, a genuine issue of material exists as to whether "the employer's action was related to the exercise or attempted exercise of [plaintiff's] FMLA rights." Campbell, 478 F.3d at 1289. Once a plaintiff has established that her employer has interfered with her right to take FMLA leave, the employer bears "`the burden of proving that an employee . . . would have been dismissed regardless of the employee's request for . . . FMLA leave.'" Id.
Reviewing the record as a whole, the court finds that defendant has met its burden and that there is no genuine issue of material fact with respect to its reasons for terminating plaintiff. Plaintiff has not disputed any of the evidence relating to complaints from subordinates and managers regarding her performance. Plaintiff has not disputed that these complaints were made to defendant's management prior to her termination. The court concludes that there is no genuine issue of material fact on the question of whether defendant's termination of plaintiff related to the exercise or attempted exercise of her FMLA rights. The court therefore concludes that defendant is entitled to summary judgment on the interference claim.
The court now turns to the retaliation claim. The Tenth Circuit has stated that, in addition to the differences in the elements and burdens of proof, the interference and retaliation claims differ with respect to the timing of the adverse action. As previously stated, in order to establish the second element of an interference claim, the employee must show that she was prevented from taking the full 12 weeks of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave. Campbell, 478 F.3d at 1287. In contrast, "a retaliation claim may be brought when the employee successfully took FMLA leave, was restored to her prior employment status, and was adversely affected by an employment action based on incidents post-dating her return to work." Id. It appears from the Tenth Circuit's discussion in Campbell that plaintiff, in the instant case, is not entitled to bring a retaliation claim because there is no evidence that she successfully took FMLA leave, was restored to her prior employment status, and was adversely affected by an employment action based on incidents post-dating her return to work. But see, Banda v. Baptist Village Retirement Communities of OK, Inc., 2009 WL 5216927 (N.D. Okla. Dec. 30, 2009) (Campbell "may suggest, but not explicitly state, that a retaliation claim may only be brought" when the employee successfully took FMLA leave and was restored to her prior position) (emphasis in original). However, even if the plaintiff were permitted to bring a retaliation claim under the circumstances of this case, the court concludes that there is no genuine issue of material fact as to the retaliation claim. The third element of the retaliation claim is evaluated under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Campbell, 478 F.3d at 1290. Assuming that the prima facie case of retaliation has been established and because defendant has articulated a nondiscriminatory reason for plaintiff's termination, the burden lies with plaintiff to "`show that there is a genuine dispute of material fact as to whether [defendant's] reasons for terminating her are pretextual.'" Campbell, 478 F.3d at 1290. For the reasons previously discussed, the court concludes that a reasonable jury could not find defendant's articulated non-retaliatory reason for plaintiff's termination — poor work performance — unworthy of credence. The court concludes that plaintiff has failed to raise a genuine issue of material fact as to whether the reason for defendant's employment action was pretextual. The court therefore concludes that defendant is entitled to summary judgment on plaintiff's FMLA retaliation claim.
Conclusion
Based upon the foregoing, Defendant Crest Discount Foods, Inc.'s Motion for Summary Judgment, filed May 3, 2010 (doc. no. 27) is GRANTED. Judgment shall be entered forthwith.