Opinion
Civil Action No. CCB-06-3020.
August 21, 2008
MEMORANDUM
Now pending before the court is a motion for summary judgment filed by defendants Southwest Airlines Co., Adriene Jones, Weda Ismaili, Michael Miller, and Colleen Barrett ("SWA") against plaintiff Bridget R. Wright. Ms. Wright is suing SWA for allegedly terminating her employment in violation of public policy, and for violating the Family and Medical Leave Act ("FMLA"). The issues in this case have been fully briefed and no hearing is necessary. For the reasons stated below, SWA's motion will be granted.
SWA seeks to strike portions of Ms. Wright's response in opposition to SWA's motion for summary judgment, which it deems "incompetent, irrelevant, and plainly inadmissable." (Def.'s Motion to Strike at 1.) Even considering those disputed portions of Ms. Wright's response as evidence, this court would still grant SWA's summary judgment motion. Therefore SWA's motion to strike will be denied as moot.
BACKGROUND
Bridget Wright began at-will employment with SWA on December 28, 1994 as a Customer Service Agent ("CSA") at SWA's station at Thurgood Marshall Baltimore-Washington International Airport ("BWI Station"). She was promoted to Customer Service Supervisor on August 16, 1999, and continued in that position until her termination on April 8, 2004.Beginning in 2000, Ms. Wright began receiving low performance evaluations from her supervisors. (Def.'s Mem. at Ex. A-2, Mgmt. Perf. Appraisal at 188.) In these evaluations, for which an employee's performance is rated in a variety of categories on a scale of 1 to 5, Ms. Wright usually received ratings of 3 or below. ( See Def.'s Mem. at Ex. A-4, A-6, A-7.) Ms. Wright was apprised of each evaluation, signing each one. ( Id.) Although each evaluation was accompanied by specific recommendations for improvement, Ms. Wright's performance did not noticeably improve, and these low evaluations continued for a number of years. ( Id.) In July of 2003, Ms. Wright also received a memorandum from Adriene Jones, the Manager for Customer Service at the BWI Station, entitled "Failure to Carry-out Job Duties," which listed specific examples of low performance and strongly urged Ms. Wright to make improvements. (Def.'s Mem. at Ex. B-3.)
According to this scale, 3 equals "[m]eets job requirements expected of experienced fully qualified individuals," and 2 equals "[d]oes not meet all job expectations." (Def.'s Mem. at Ex. A-4.)
On February 12, 2004, Ms. Wright received yet another low performance evaluation. In this evaluation, Ms. Wright was given an average rating of 2.45 out of 5, and multiple concerns were raised about her performance. (Def.'s Mem. at Ex. A-7.) Contemporaneous to this evaluation, Adriene Jones drafted a separate memorandum, entitled "Below Standard Appraisal," in which she noted that Ms. Wright's evaluation was "below our standards," and requested that Ms. Wright make specific performance changes in several areas. (Def's Mem. at Ex. E-34.) In this memorandum, Ms. Wright was notified that she would be reevaluated "in 90 days, on June 14, 2004." ( Id.) Ms. Wright received and signed this memorandum on February 24, 2004. ( Id.)
In early March, 2004, Ms. Wright asked to speak with Michael Miller, the Station Manager for the BWI Station, about her most recent evaluation. Their meeting took place on March 11, 2004. During this meeting, Mr. Miller advised Ms. Wright that she needed to work hard to regain the confidence of her supervisors, and that she would be re-evaluated in 60 days. (Def.'s Mem. at Ex. C, Miller Dec. ¶ 12.) There is no indication that Ms. Wright took any steps to improve her performance along the lines suggested — both by Mr. Miller and by her prior written evaluations — after this meeting.
In her deposition, Ms. Wright recalled Mr. Miller as having stated the period as 30 days (Wright Dep. Trans. at 127), and as saying that, if her performance did not noticeably improve within 30 days, she "would no longer be an employee of Southwest Airlines." ( Id.)
Weeks later, seeing no improvement, Ms. Jones met with one of Ms. Wright's supervisors, Weda Ismaili, the Assistant Station Manager for the BWI Station, to discuss Ms. Wright's failure to improve. (Def.'s Mem. at Ex. B, Jones Dec. ¶ 22.) Ms. Ismaili then met with Mr. Miller in early April, and they agreed that Ms. Wright's employment should be terminated. (Def.'s Mem. at Ex. A, Ismaili Dec. ¶ 18; Def.'s Mem. at Ex. C, Miller Dec. ¶ 13.) On April 8, 2004, Ms. Ismaili and Ms. Jones met with Ms. Wright and notified her of her termination. In their Termination Notice, they explained to Ms. Wright the grounds for their decision to terminate her, stating that, since her latest evaluation, she had "displayed a non-cooperative and resistant demeanor" and had "not been receptive to the feedback [she had] been given," and that in general her "actions and attitude . . . are not in line with the qualities necessary to be a Leader for Southwest Airlines" (Def.'s Mem. at Ex. B-8.)
Prior to her termination, on approximately March 16, 2004, Ms. Wright contacted the BWI Station's FMLA Coordinator, Tina Woodmancy, to request continuous FMLA leave beginning in May. Ms. Woodmancy reviewed Ms. Wright's payroll records and concluded that she was eligible for FMLA leave, and so provided Ms. Wright with the requisite FMLA forms to complete. (Def.'s Mem. at Ex. D, Woodmancy Dec. ¶¶ 3-4.) She also told Ms. Wright to contact Broadspire, SWA's medical claims administrator, to open a claim and submit to Broadspire within 15 days a completed medical certification form establishing that she had a serious health condition. ( Id. ¶ 5.) Ms. Woodmancy and Ms. Wright had no further contact, and Woodmancy did not inform anyone at the BWI Station or at SWA that Ms. Wright had requested FMLA leave. ( Id. ¶¶ 6, 8.) On April 9, 2004, one day after Ms. Wright's termination, Broadspire sent a facsimile to the BWI Station informing its staff that Ms. Wright had been approved for FMLA leave. (Pl.'s Opp. Mem. at Ex. 12, Broadspire Facsimile at 4.)
Ms. Wright alleges that her personal physician informed SWA representatives via facsimile of her need to take FMLA leave to undergo surgery just days before she was terminated. (Pl.'s Complaint ¶ 43, 44, 46.) Regardless of whether or not this notification took place, all of the relevant decisionmakers involved in her termination remained unaware of her March FMLA request. (Def.'s Mem. at Ex. A, Ismail Dec. ¶ 20; Def.'s Mem. at Ex. B, Jones Dec. ¶ 26; Def.'s Mem. at Ex. C, Miller Dec ¶ 14.)
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment:
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.Pro. 56(c). The Supreme Court has clarified this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"The party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
A. Wrongful Discharge Claim
It has long been established law in Maryland that an at-will employment contract may be legally terminated "for any reason by any party." Miller v. U.S. Foodservice, Inc., 405 F. Supp. 2d 607, 610 (D. Md. 2005) (citing Adler v. Am. Standard Corp., 432 A.2d 464, 467 (Md. 1981); see also Thompson v. Memorial Hosp. at Easton Md., Inc., 925 F.Supp. 400, 405 (D. Md. 1996). The tort of wrongful discharge is a narrow exception to this broad principle, and should form the basis for a judicial determination "if at all, only with the utmost circumspection." Thompson v. Memorial Hosp., 925 F.Supp at 405 (quoting Adler v. Am. Standard Corp., 432 A.2d at 472).
To establish a wrongful discharge claim, the plaintiff employee must show that: (1) she was discharged; (2) the basis for her discharge violated a clear mandate of public policy; and (3) there was a nexus between her conduct and the employer's decision to fire her. Wholey v. Sears Roebuck, 803 A.2d 482, 489 (Md. 2002). A clear mandate of public policy is understood as "a preexisting, unambiguous, and particularized pronouncement, by constitution, enactment or prior judicial decision, directing, prohibiting, or protecting the conduct in question so as to make the Maryland public policy on the topic not a matter of conjecture or even interpretation." King v. Marriott Int'l., 866 A.2d 895, 903 (Md. 2005). This narrow definition is meant to "limit judicial forays into the wilderness of discerning `public policy' without clear direction from a legislature or regulatory source." Id. (citing Milton v. IIT Research, 138 F.3d 519, 523 (4th Cir. 1998)). Accordingly, wrongful discharge claims are generally limited to "situations where the employee has been terminated for exercising a specific legal right or duty or where the employee has been fired for refusing to violate the law or the legal rights of a third party." Silvera v. Home Depot U.S.A., Inc., 189 F. Supp. 2d 304, 309-310 (D. Md. 2002) (citing Thompson v. Memorial Hosp. Inc., 925 F.Supp at 406).
Here, while it is undisputed that Ms. Wright was discharged, there is no showing either that her discharge violated a clear mandate of public policy or that her employer's decision to fire her was linked to conduct covered by a particular public policy. Ms. Wright was unable to point to any clear public policy of Maryland that her termination flouted — in either her complaint or her later deposition — and so she cannot sustain a claim of wrongful discharge in violation of public policy. Given that no public policy mandate was articulated, there is no need to inquire into whether the decision to terminate was linked to conduct protected by public policy. The "nexus" element of a wrongful discharge claim only becomes relevant when there is a cognizable public policy concern involved. Moreover, this termination did not involve the type of employee conduct that normally subjects an employer to suit for wrongful discharge, namely the exercise of a specific legal right or duty, or the refusal to violate the law or legal rights of a third party. Silvera, 189 F. Supp. 2d at 309-310.
In her deposition, Ms. Wright described the policy violated by SWA's behavior toward her as simply "a humane policy." Wright Dep. Trans. at 195. Such an assertion fails to describe a public policy with the "clarity, specificity and authority" required for Ms. Wright to prevail on her claim. Bagwell v. Peninsula Regional Medical Ctr., 665 A.2d 297, 309 (Md.Ct.Spec.App. 1995).
Since the undisputed material facts, as presented, fail to make out a proper wrongful discharge claim, SWA is entitled to summary judgment on this claim as a matter of law.
B. FMLA Claim
The FMLA is designed "to balance the demands of the workplace with the needs of families." 29 U.S.C. § 2601(b)(1) (2005). In pursuit of this goal, the law "entitle[s] employees to take reasonable leave for medical reasons." Id. at § 2601(b)(2). Qualified employees are entitled to a total of twelve workweeks of leave during any 12-month period; such leave may be taken intermittently when medically necessary. Id. at § 2612. When the necessity for leave is foreseeable, the employee must provide such notice as is practicable. Id. at § 2612(e)(2)(B).
The FMLA creates two types of claims: interference and retaliation. Interference claims are based on alleged attempts by an employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise" any right protected by the act. 29 U.S.C. § 2615(a)(1). Retaliation claims result from an employer's allegedly "discharg[ing] or in any other manner discriminat[ing] against any individual for opposing any practice made unlawful by" FMLA. Id. at § 2615(a)(2). Ms. Wright claims both that her termination "interfered with" her rights under the FMLA because she was terminated after having requested and been approved for FMLA leave, and that her termination "was in retaliation for her exercise of FMLA rights." (Pl.'s Opp. Mem. at 8 10.) Each of these claims will be addressed in turn.
i. Interference
To establish an FMLA interference claim, an employee must prove that: "(1) she was an eligible employee; (2) her employer was covered by the statute; (3) she was entitled to leave under the FMLA; (4) she gave her employer adequate notice of her intention to take leave; and (5) the employer denied her FMLA benefits to which she was entitled." Rodriguez v. Smithfield Packing Co., Inc., 545 F. Supp. 2d 508, 516 (D. Md. 2008) (citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006)). Here, it is undisputed that Ms. Wright was an eligible employee, that her employer was covered by the statute, and that she was entitled to leave under the FMLA. (Def.'s Mem. at Ex. D, Woodmancy Dec. ¶¶ 2 3.) Whether she gave her employer adequate notice of her intention to take leave, while unclear, need not be resolved, since it is clear that her employer granted her request for FMLA leave. (Def.'s Mem.at Ex. D, Woodmancy Dec. ¶ 3.; Pl.'s Opp. Mem. at Ex. 12.) See Rhoads v. FDIC, 257 F.3d 373, 384 n. 9 (4th Cir. 2001) (finding a dispute over the notice element of an FMLA interference claim to be moot where another element was clearly not established). The fact that she did not receive the benefits was due not to a denial by her employer, but rather to a termination decision made by supervisors without knowledge of the FMLA request, as will be discussed below. When an employer's termination of an employee would have occurred whether or not the employee had requested FMLA leave, an FMLA interference claim cannot be sustained. See Yashenko v. Harrah's NC Casino Comp., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006) (denying an employee's FMLA interference claim at the summary judgment stage because the facts clearly showed the employee would have been terminated for reasons unrelated to his FMLA request). ii. Retaliation
Ms. Wright now claims that, when she applied for FMLA leave in March 2004, she "made all the proper notifications." (Pl.'s Opp. Mem., Wright Dec. ¶ 20.) This declaration is supported neither by her complaint, wherein she states that her personal physician notified SWA (Pl.'s Complaint ¶ 43), nor by her previous sworn deposition testimony, wherein she states that "I did not give [the FMLA request form] to any of the managers." (Wright Dep. Trans. at 306; see also Wright Dep. Trans. at 308-309.)
As in Yashenko, the result would be the same regardless of whether the plaintiff or the defendant has the burden of proof. Id. at 549.
Without direct evidence, FMLA retaliation claims are governed by the McDonnell Douglas burden-shifting framework. Id. Under this framework, Ms. Wright must first make out a prima facie case of retaliation. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000); Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502 (4th Cir. 2001). To do this, she must show that: (1) she availed herself of a protected right under the FMLA; (2) she was adversely affected by an employment decision; and (3) there is a causal connection between her protected activity and the adverse employment action. See Yashenko, 446 F.3d at 551.
It is undisputed that Ms. Wright availed herself of a protected right under the FMLA when she filed for FMLA leave. 29 U.S.C. § 2612(a)(1)(D). ( See Def.'s Mem. at Ex. D, Woodmancy Dec. ¶ 3.) It is also undisputed as a matter of law that she was adversely affected by an employment decision, i.e., her termination. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656-657 (4th Cir. 1998) (citing Hartsell v. Duplex Products, Inc., 123 F.3d 766, 775 (4th Cir. 1997) for the proposition that discharge is an adverse employment action). What the parties dispute is whether there is a causal connection between her protected activity and the adverse employment action. The only evidence Ms. Wright provides of a causal connection between her request for FMLA leave and her termination is the close temporal proximity between the two events, with the former occurring on March 16, and the latter occurring only three weeks later on April 8. (Pl.'s Opp. Mem., Wright Dec. ¶¶ 20-22.)
To satisfy the causation element of a retaliation claim, the plaintiff must show that the employer took the adverse employment action "because the plaintiff engaged in a protected activity." Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (quoting Dowe, 145 F.3d at 657) (emphasis in original). Such a showing requires the employee to provide evidence that the employer knew about the protected activity. As the Fourth Circuit held in Dowe: "Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case." Dowe, 145 F.3d at 657; see also Holland, 487 F.3d at 218 ("The first thing [an employee] must be able to prove, therefore, is [the employer's] knowledge that he engaged in a protected activity.").
Here, the sworn statements of the parties establish that none of the decisionmakers at SWA involved in the decision to terminate Ms. Wright's employment knew of her March 16 request for FMLA leave until after she was terminated, and Ms. Wright has failed to provide any evidence to the contrary. (Def.'s Mem. at Ex. A, Ismail Dec. ¶ 20; Def.'s Mem. at Ex. B, Jones Dec. ¶ 26; Def.'s Mem. at Ex. C, Miller Dec ¶ 14; Def.'s Mem. at Ex. D, Woodmancy Dec. ¶¶ 7-8.) While close temporal proximity may be sufficient to make out a prima facie claim of causation ( see Yashenko, 446 F.3d at 551), it is only sufficient where the decisionmakers were aware of the protected activity alleged to be linked to their adverse employment action. Hence, Ms. Wright's retaliation claim fails here as a matter of law, since she has failed to provide evidence of awareness on the decisionmakers' part.
Even if this court were to take as true Ms. Wright's latest claim that she made "all the proper notifications" (Pl.'s Opp. Mem., Wright Dec. ¶ 20; see supra note 6), no evidence has been presented suggesting that any of those involved in the decision to terminate her employment received such notifications. In fact, as discussed above, the opposite is the case.
Even if Ms. Wright had shown evidence of awareness, her retaliation claim would still fail under a pretext analysis. Once an employee has established a prima facie retaliation claim, the defendant employer has the burden of producing evidence that would permit a rational factfinder to conclude that the adverse employment action was taken for a "legitimate, nondiscriminatory reason." Reeves, 530 U.S. at 141 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). The defendant's burden is one of production, and the court should not evaluate the credibility of the defendant's explanation. See id. Once such a reason is offered, the burden returns to the employee to demonstrate a trial-worthy issue of pretext. In other words, Ms. Wright must then show that the legitimate reasons offered by the defendant employer were not its true reasons. Burdine, 450 U.S. at 256.
Here, SWA has offered as its legitimate non-retaliatory explanation for Ms. Wright's termination her "numerous job deficiencies, failure to take any steps to improve . . . performance, and non-cooperative and resistant demeanor," as described in her Termination Notice. (Def.'s Mem. at 30; see Def.'s Mem. at Ex. B-8.) SWA has produced several performance evaluations and internal memoranda spanning at least four years to support this explanation. ( See Def.'s Mem. at Ex. A-2, A-4, A-5, A-6, A-7, B-1, B-3, B-6, B-7.) In order to survive summary judgment, then, Ms. Wright must be able to demonstrate that these reasons were pretextual.
Given that those who made the decision to terminate Ms. Wright were unaware of her FMLA request at the time of her termination, it is simply impossible for Ms. Wright to demonstrate that their legitimate non-retaliatory explanation is pretextual. Indeed, Ms. Wright has not attempted to do so, in either her complaint or her opposition to SWA's motion for summary judgment.
CONCLUSION
For the foregoing reasons, defendant SWA's motion for summary judgment will be granted. A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. The defendant's motion for summary judgment (docket entry no. 37) is GRANTED;
2. The defendant's motion to strike (docket entry no. 46) is DENIED as moot;
3. Judgment is entered in favor of the defendants; and
4. The Clerk shall CLOSE this case.