Opinion
Case No. 2:03-CV-510 TS.
November 8, 2004
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction
This matter is before the court on Defendant's Motion for Summary Judgment. Plaintiff, a supervisor on an assembly line packaging dryer softener sheets, brings this action under the Family and Medical Leave Act of 1993 (FMLA). She alleges that her employer, Defendant Huish Detergents, terminated her employment in retaliation for her use, eight months before, of leave under the FMLA, rather than for its stated reason that she violated good safety practices resulting in an injury to employee under her supervision. Defendant contends that Plaintiff fails to establish a prima facie case because she fails to show any connection between the protected activity and her termination. The court will grant summary judgment in favor of the Defendant employer.
II. Undisputed Facts
Defendant Huish Detergents, Inc. is a Utah corporation with facilities in Utah, Kentucky, Tennessee and Texas. It employs approximately 1,100 employees at its Utah facility where it produces cleaning products, including laundry detergent, dishwasher detergent and fabric softener sheets. The Utah facility operates two twelve-hour production shifts in most departments, seven days per week. It also employs some people in nonproduction jobs eight hours per day. In 1989, Plaintiff Jo Woolstenhulme was hired at Defendant as a line worker in the Fabric Softener Sheet department ("FSS department").
In December 1997, Plaintiff was promoted to a supervisor position in the FSS department. As supervisor, Plaintiff was responsible for, among other things, ensuring the safety of her employees. In addition, Defendant*s Policy Book, which is distributed to all employees, states in the section on Safety and Health: "The Responsibilities of all employees of the company in this regard include: 1) Exercising maximum care and good judgment at all times to prevent accidents and injuries."
In March 1999, Plaintiff began to report to Vince Wilmot, a new assistant manager in the FSS department. Plaintiff and Mr. Wilmot had what she characterized as a "personality conflict." Pl.'s Depo. at 24. Plaintiff thought Mr. Wilmot criticized her work unfairly. She also claimed that several years prior to the summer of 2001, Mr. Wilmot told her he thought she was using FMLA leave not to come in to work to attend meetings when he asked her to. Plaintiff complained to Debbie Mair ("Mair"), Human Resources Manager, about what she considered Mr. Wilmot*s unfair treatment. Ms. Mair investigated Plaintiff*s allegations and found no evidence of improper action by Mr. Wilmot. However, Ms. Mair offered Plaintiff several opportunities to transfer out of the FSS Department, so she would not have to work with Mr. Wilmot. Plaintiff refused all transfers.
In January 1994, Plaintiff was injured in an automobile accident. Plaintiff took three months of FMLA leave during 1994 to recover from the accident. Plaintiff did not take much FMLA leave in 1995 or 1996. She took some FMLA leave in 1997. Beginning in about 1998 or 1999, Plaintiff started taking intermittent FMLA leave for back problems associated with her 1994 accident.
In 2000, 2001 and 2002, Plaintiff used several days of intermittent FMLA leave most months. Over the course of a year, over 150 employees in Defendant*s Utah facility used FMLA leave. At any given time, there are 50 to 60 employees at the Utah facility on FMLA leave.
In July 2001, Defendant offered Plaintiff a job working hours during the day in a new position it was trying out called manufacturing clerk. Because Plaintiff was the only supervisor on the graveyard shift in the FSS Department and often took intermittent leave with little or no advance notice, Defendant had difficulty finding a supervisor who could cover her shift. The clerk position did not require a substitute, so Plaintiff could take as much intermittent leave as necessary, without creating staffing difficulties for Defendant. The clerk position provided Plaintiff with the same pay and benefits she was receiving as a supervisor.
Plaintiff accepted the manufacturing clerk position in the summer of 2001. As manufacturing clerk, she handled paperwork related to the manufacturing process. After approximately six months, it became clear that there simply was not enough work to keep a manufacturing clerk busy full time. Defendant determined that it would not continue the position. Defendant offered Plaintiff several other jobs in the company. Defendant first offered Plaintiff a position as a line production worker in a new department called the oxy department. Plaintiff rejected the job because she did not think she could physically do the job. In particular, Plaintiff thought she would have difficulty stooping and standing. Plaintiff also thought it was demeaning and, because the job was on the swing shift, she did not like the hours.
Shortly before the manufacturing clerk position was eliminated, Plaintiff contacted the Department of Labor ("DOL"). Plaintiff discussed the elimination of the manufacturing clerk position with an investigator at the DOL. Plaintiff asked the investigator whether or not she should accept the oxy line position and whether Defendant was obligated to offer her a different job. The investigator mistakenly informed Plaintiff that Defendant was obligated to move Plaintiff to an "equivalent position" to her supervisor*s position and that, therefore, Plaintiff need not accept the oxy line position. Based upon this erroneous advice, Plaintiff rejected the position.
When Plaintiff rejected the oxy line position, Defendant offered her a position as a "lead" on the oxy line. The lead position did not require as much lifting, stooping, or standing as the line position would have required. Plaintiff did not think she could do that position either and rejected the second position that had been offered.
When Plaintiff refused the jobs offered to her, Defendant terminated her employment. Shortly thereafter, the investigator, on behalf of the DOL, contacted Defendant and attempted to negotiate a settlement of the issue.
In an effort to resolve the matter, Defendant agreed to reinstate Plaintiff as a supervisor in the FSS department. Plaintiff would split the supervisory position on the graveyard shift with another employee, who had been moved to that position when Plaintiff accepted the manufacturing clerk position. The other employee would supervise the process side of the FSS department where the material for the dryer sheets is coated, and Plaintiff would supervise the production line. In this way, when Plaintiff took intermittent leave, Defendant would have a supervisor in place to cover the shift.
The production line begins with an Eisner machine. The Eisner machine cuts processed rolls of fabric softener sheet material into Kleenex-type sheets for packaging. Until September 2002, there was only one Eisner machine on the line (existing Eisner machine).
The sheets leave the Eisner in small stacks and are carried on a Smart Conveyor, to the main conveyor which runs at a right angle to the Smart Conveyor. The main conveyor has "cups" or "buckets." The Smart Conveyor feeds each stack of sheets into one of the buckets, and each stack continues down the main belt.
The sheets then travel to the Superior Cartoner where they are fed into small, individual boxes. The small boxes are then sent to a case packer where the individual boxes are put together to make a case. The cases are sent to another machine where they are sealed.
In September 2002, a second Eisner machine was added to the production line, to the right of the first. Accordingly, a second Smart Conveyor leading to the main line was added. After Defendant installed the second Eisner machine, there was about three feet of space between the two Smart Conveyors leading from the Eisner machines. Defendant placed a plexiglass sheet as a guard on the main belt just before the juncture with the second Smart Conveyor. There is a small space between the bottom of the guard and the main belt to allow the belt to move.
On October 7, 2002, Plaintiff came to work at 7:00 p.m. to supervise the graveyard shift. She was working between the two Smart Conveyors, re-stacking stacks of fabric softener sheets. Plaintiff was reaching into the buckets on the line and lifting one stack of sheets out of one bucket and placing them into a second bucket with a second stack of sheets. Plaintiff had worked in that spot prior to the installation of the second Smart Conveyor. The second Smart Conveyor had only been placed in operation a week or so earlier. Prior to October 7, 2002, no one had said anything to Plaintiff about employees standing between the two Smart Conveyors to fix the stacks.
One of Defendant*s mechanics, (the mechanic) saw her working there on October 7 and interrupted her work. He told her that working in that area was unsafe. Plaintiff understood the mechanic was concerned that an employee putting his hand in the buckets could have his hand pulled under the guard where the second Smart Conveyor meets the main line and crushed between the guard and the buckets. Plaintiff told the mechanic she had always stood there to stack sheets before and it had never been a problem. The mechanic, who was subordinate to Plaintiff, felt so strongly about the danger, that he argued with her about the safety of her practices. The argument culminated with the mechanic shutting down the entire line and telling Plaintiff to go to her office.
Plaintiff was upset and called the mechanic*s supervisor. The mechanic's supervisor came to the site and the mechanic, his supervisor and Plaintiff stood at the line to discuss the issue. The supervisor agreed that there was a risk of someone*s hand being caught in the machinery if they stacked sheets in the buckets in the location where Plaintiff was standing. Plaintiff told Mills and his supervisor if they wanted her to change the practice, they should speak with those in charge of safety at Defendant.
The next day, Plaintiff*s supervisor, Mr. Wilmot, received e-mail memos from the mechanic, his supervisor and the maintenance manager, expressing serious concern about Plaintiff's practice of standing in between the two Smart Conveyors and stacking sheets. These memos went not only to Mr. Wilmot, but also to the director of manufacturing, William Lee. Upon receipt of the memos, Mr. Wilmot called Plaintiff at the beginning of her shift the next night and asked her what had happened and where she had been standing. According to Plaintiff, she told Mr. Wilmot where she had been standing and he told her he did not see a problem.
Later that same night, one of the line workers under Plaintiff*s supervision, was working in the same place that Plaintiff had been working the night before. He was stacking sheets the same way Plaintiff had been stacking them the night before. While working in that location, his hand was severely injured.
After the incident, Defendant placed Plaintiff on administrative leave pending an investigation of the incident. The Safety Director, the Safety Supervisor and Ms. Mair, Human Resources Manager, conducted an extensive investigation into the injury. Ms. Mair and the Safety Director interviewed Plaintiff. Plaintiff told them she had talked to Mr. Wilmot the day after her argument with the mechanic and he said he saw no problem with where she was working. Plaintiff also told them all of the other FSS Department supervisors and their crews did the same thing.
As a result of the interview with Plaintiff, Mr. Mair interviewed Mr. Wilmot and the other three supervisors in the FSS Department. Mr. Wilmot told Mr. Mair that when Plaintiff described what she was doing the night before the accident, he understood she was standing to the right of the second Smart Conveyor, not between the two Smart Conveyors. It was only after the line worker was injured on her line that Plaintiff told him she was standing in the same place where the worker was hurt. All of the other supervisors in the FSS Department told Mr. Mair that they did not permit their crew members to stack sheets between the two Smart Conveyors because it was unsafe. The Safety Supervisor also interviewed the mechanic, the mechanic*s supervisor and the maintenance manager about the incident between the Plaintiff and the mechanic. The Safety Supervisor and another member of the Safety Department interviewed the injured line worker and the other employees on his shift. He told them he was standing between the two Smart Conveyors stacking the sheets because Plaintiff did it, and he had seen her do it earlier that night. Ms. Mair reported the results of the investigation to Mr. Lee, the director of the FSS Department, who asked questions about the investigation and concluded that Plaintiff had committed a serious safety violation and that her employment should be terminated.
Mr. Lee made the decision to terminate Plaintiff*s employment. In 1999, at the time of her dispute with Mr. Wilmot, Mr. Lee was aware that Plaintiff had taken leave that year that should have been designated FMLA. Mr. Wilmot did not participate in the decision to terminate her employment. Defendant terminated Plaintiff*s employment on October 25, 2002.
Plaintiff does not believe that Mr. Lee intended to retaliate against her. Plaintiff filed this case in June 2003, alleging her termination violated the FMLA of 1993.
Plaintiff concedes all of Defendant's Statement of Undisputed Facts are undisputed except, as noted above, for ¶¶ 32, 38 and 41, which she contends she disputes as to how they are phrased, not the substance of the alleged fact. The court finds that Plaintiff's position on how those facts are phrased do not raise material issues of fact.
III. Conclusions of Law
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
To meet the burden of production required to support summary judgment, the movant "need only point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex, 477 U.S. at 322-23). Summary judgment will then lie if the movant establishes entitlement to judgment as a matter of law "given [the] uncontroverted, operative facts." Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. The substantive law of the case determines which facts are material. See id.
Where a movant has met the initial burden required to support summary judgment, the non-movant then "must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56(e) or explain why he cannot . . . under Rule 56(f)." Pasternak v. Lear Petroleum Exploration, 790 F.2d 828, 832 (10th Cir. 1986). Conclusory allegations made by a non-movant will not suffice. See Allen v. Muskogee, Oklahoma, 119 F.3d 837, 843-44 (10th Cir. 1997). Instead, "sufficient evidence (pertinent to the material issue) must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Thomas, 968 F.2d at 1024.United States v. Simons, 129 F.3d 1386, 1388 (10th Cir. 1997).
The FMLA prohibits retaliation for the exercise of rights under the Act. To establish a prima facie case of retaliation, Plaintiff must show "(1) protected employee action; (2) adverse action by an employer either after or contemporaneous with the employee's protected action; and (3) a causal connection between the employee's action and the employer's adverse action." Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1135 (10th Cir. 2003).
Defendant shows evidence that Plaintiff was fired for safety violations in connection with the accident. In response, Plaintiff contends that Defendant was looking for a reason to fire her and used the accidental injury of a member of her crew as a pretext.
When a defendant articulates a reason for terminating the plaintiff's employment, establishing a prima facie case is not sufficient to avoid summary judgment. Instead, the plaintiff must offer evidence that the defendant's reason is a pretext for discrimination.Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260 (10th Cir. 2001).
"Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). When assessing whether plaintiff has made an appropriate showing of pretext, we must consider the evidence as a whole. See Washington v. Davis, 426 U.S. 229, 242 (1976) ("[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts.").Danville v. Regional Lab Corp., 292 F.3d 1246, *1250 (10th Cir. 2002).
Temporal proximity between the protected activity and the termination may establish a causal connection. The time between the protected activity in the present case — use of FMLA and rehiring — to the alleged retaliatory act is eight months. During those eight months, Plaintiff worked as a supervisor. This time is simply too long to raise an inference of retaliation by itself. Unless "the adverse action is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond mere temporal proximity to establish causation." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (emphasis in original). See also Id. Meiners v. University of Kansas 359 F.3d 1222, 1231 (10th Cir. 2004) ("A six-week period between protected activity and adverse action may be sufficient, standing alone, to show causation, but a three-month period, standing alone, is insufficient.").
Plaintiff contends that a causal connection between her use of leave and her termination is raised because she did nothing wrong. However, the issue of whether or not Plaintiff did anything wrong in connection with the accident is not before this court.
There is no evidence in this case that the reason given was a pretext. The only evidence is that the person who conducted the investigation and the person who made the decision determined that there had been a safety violation and that Plaintiff was responsible. Granted, she has a different opinion on that issue. However, for the purpose of summary judgment on her retaliation claim under the FMLA, the court looks at the evidence from the view of the person who made the decision.
[In examining claims of pretext, courts] must examine "the facts as they appear to the person making the decision to terminate plaintiff." Kendrick [v. Penske Transp. Servs., Inc.], 220 F.3d 1220, 1230-31 (10th Cir. 2000); see also, [ EEOC v. Flasher Co., Inc.], 986 F.2d 1312, 1322 n. 12 ("[A] mistaken belief can be a legitimate reason for an employment decision and is not necessarily pretextual."); Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th Cir. 1999) (noting that the manager's perception of employee's performance, rather than the employee's own evaluation of his or her performance, is relevant in determining pretext).Salguero v. City Of Clovis, 366 F.3d 1168, *1176 (10th Cir. 2004).
Despite her arguments to the contrary, the only evidence in the record is that other supervisors were also terminated when it was determined that they failed to act appropriately in connection with a safety violation. Courts "afford substantial latitude to employers in making discipline related decisions, and are reluctant to act as a super personnel department that second guesses employers' business judgments." Salguero v. City Of Clovis, 366 F.3d 1168, 1177 (10th Cir. 2004).
Plaintiff's reliance on Mr. Wilmot's remark, years earlier, about her use of leave is unavailing. It is a stray remark, far distant in time, made by a person other than the person who made the employment decision. McKnight v. Kimberly Clark Corp., 143 F.3d 1125, 1129 (10th Cir. 1998). A remark is "isolated" where "it was only made once." Danville v. Regional Lab Corp., 292 F.3d 1246, 1251 (10th Cir. 2002). Remarks by persons other than those making the employment decisions are "stray" in the sense that they lack nexus to the employment decision. Id. The court concludes Plaintiff fails to establish a prima facie case of retaliation under the FMLA because she fails to show any connection between the protected activity and her termination.
IV. Order
Accordingly, It is therefore
ORDERED that Defendant's Motion for Summary Judgement is GRANTED. It is further
ORDERED that judgment shall be granted in favor of Defendant and against Plaintiff and this case may be closed.