Kimberly Thomas v. Dolgencorp, LLC

Filing

Opinion issued by court as to Appellant Kimberly Thomas. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 03/15/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13399
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-00128-MHT-PWG
KIMBERLY THOMAS,
Plaintiff-Appellant,
versus
DOLGENCORP, LLC,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(March 15, 2016)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:

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Kimberly Thomas brought this action against Dolgencorp, LLC. (“Dollar
General”), her former employer, under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112(a), and the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2615(a)(1), (a)(2). Thomas’s ADA claim is that Dollar
General discriminated against her based on her disability, cancer, when it
terminated her employment as manager of one of its stores after she took leave to
have a double mastectomy. Thomas’s FMLA claim is two-fold. Dollar General
(1) interfered with her right to take FMLA leave when it refused to reinstate her to
her store manager position, and instead terminated her, after she returned from
medical leave and (2) retaliated against her by terminating her employment for
having exercised her right to FMLA leave.
The district court granted Dollar General summary judgment on Thomas’s
ADA claim because she failed to demonstrate that Dollar General’s
nondiscriminatory reason for not reinstating her to her former position and
terminating her employment---that she took CBLs for employees or worked them
“off the clock” without compensation, legitimate grounds for termination---was a
pretext for discrimination. The court granted Dollar General summary judgment
on her FMLA interference claim, because Dollar General established as a matter of
law its affirmative defense that Thomas was terminated for the nondiscriminatory

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reason stated above, and her FMLA retaliation claim because she failed to show
that such reason was a pretext for her having taken FMLA leave.
Thomas appeals the district court’s decisions, arguing that she presented
sufficient evidence that Dollar General’s stated reason for her termination was a
pretext for discrimination on the basis of disability and for retaliation against her
for taking FMLA leave. She also argues that she presented sufficient evidence to
support her FMLA interference claim, because a reasonable factfinder could infer
that she was not terminated for a reason unrelated to her exercise of her FMLA
rights. After review of the record and consideration of the parties’ briefs, we
affirm.
I.
We review a district court’s grant of summary judgment de novo. Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is
appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, presents no genuine issue of material fact and compels judgment
as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).
We analyze ADA discrimination claims under the McDonnell Douglas
burden-shifting analysis applied to Title VII employment discrimination claims.
Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Under that
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framework, a plaintiff-employee first establishes a prima facie case of
discrimination. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.
2004). To establish a prima facie case of ADA discrimination, a plaintiff must
show (1) a disability, (2) that she was otherwise qualified to perform the job, and
(3) that she was discriminated against based upon the disability. Cleveland v.
Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). The burden
then shifts to the defendant to articulate a legitimate reason for its employment
action. Wilson, 376 F.3d at 1087. If it can, the burden shifts back to the plaintiff to
offer evidence that the reason is pretextual. Id. If the plaintiff fails to show
pretext, we affirm the grant of summary judgment on that ground. EEOC v. Total
Sys. Servs., 221 F.3d 1171, 1177 (11th Cir. 2000). Where the defendant has met its
burden of articulating a legitimate, non-discriminatory reason for its action, we
may assume without deciding that the plaintiff has established a prima facie case
and decide the case on the question of pretext. See, e.g., Holifield v. Reno, 115
F.3d 1555, 1564 (1997); Wascura v. City of S. Miami, 257 F.3d 1238, 1243 (11th
Cir. 2001).
One way to establish the discrimination prong of a prima facie case of
discrimination is by showing that the employer treated similarly situated
employees outside the protected class more favorably. See Wilson, 376 F.3d at
1091. In determining whether employees are similarly situated, it is necessary to
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consider whether the employees are involved in, or accused of, the same or similar
conduct and are disciplined in different ways. Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999). When an individual proves that she was fired but another
employee outside her class was retained although both violated the same work rule,
this raises an inference that the rule was discriminatorily applied. Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1186 (11th Cir. 1984).
The plaintiff can show pretext by demonstrating such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the proffered
reason for the employment action that a reasonable factfinder could find them
unworthy of credence. Springer v. Convergys Customer Mgmt. Group, Inc., 509
F.3d 1344, 1348 (11th Cir. 2007). If the proffered reason is one that might
motivate a reasonable employer, however, the plaintiff must “meet it head on and
rebut it” instead of merely quarreling with it. Wilson, 376 F.3d at 1088. A finding
that the proffered reason is false does not compel an inference of discrimination,
because the burden of proving discriminatory intent remains at all times with the
plaintiff. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742,
2749, 125 L. Ed. 2d 407 (1993). An employer is entitled to rely on a good faith
belief that an employee has committed professional misconduct and does not need
to prove that belief was correct. Total Sys. Servs., 221 F.3d at 1176. An
employer’s shifting and inconsistent explanations may be evidence of pretext. See
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Cleveland, 369 F.3d at 1194-95 (finding that employer’s four different and
inconsistent reasons were evidence of pretext). A stray comment by a supervisor
that is unrelated to the employment decision will usually not be sufficient to show
pretext absent some additional evidence supporting a finding of pretext. Scott v.
Suncoast Beverage Sales, Inc., 295 F.3d 1223, 1229 (11th Cir. 2002) (supervisor’s
statement that “We’ll burn his black ass” was insufficient to create an issue of fact
on pretext). Though close temporal proximity between a protected activity and an
adverse action may be sufficient to show a causal connection, temporal proximity
standing alone may not be enough to show that a legitimate, non-discriminatory
explanation is a pretext for discrimination. Wascura, 257 F.3d at 1244-45.
Dollar General was entitled to summary judgment because the evidence
showed no genuine issue of material fact existed on the issue of pretext. First, the
fact that the company listed two mutually exclusive reasons for her termination--that she took CBLs for employees or worked them “off the clock” without
compensation---does not suggest that either reason was pretextual, because it
believed that Thomas had committed one offense or the other, and either would be
grounds for termination. Second, Thomas’s denial that she took CBLs for her
employees is immaterial, because the evidence shows that Gomillion conducted an
investigation that yielded evidence upon which she had a reasonable good-faith
basis to believe that Thomas had falsified records. Third, Gomillion’s comments
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that Thomas’s “personal situations” had affected her performance, her alleged
statement that she could not “save” Thomas’s job, and her alleged attempts to “dig
up” things about Thomas are, at best, stray remarks that do not create a material
issue of fact concerning pretext. Scott, 295 F.3d at 1229. Fourth, the temporal
proximity between Thomas’s FMLA leave and her termination does not by itself
show pretext. Wascura, 257 F.3d at 1245. Finally, Thomas’s proposed
comparator, Reeves, was not similarly situated, because although Gomillion
investigated both Thomas and Reeves for similar misconduct, the investigation in
Reeves’s case did not reveal any evidence that he had falsified records, and instead
supported his explanation that he had corrected the records to give Carroll credit
for a CBL he had taken. Because a showing of pretext is necessary for Thomas to
prevail, her failure to create a triable issue on this question compels summary
judgment. We affirm the district court’s grant of summary judgment as to
Thomas’s ADA claim.
II.
To establish a prima facie case of FMLA interference, a plaintiff must show
by a preponderance of the evidence that he was denied a benefit to which he was
entitled under the FMLA, such as taking leave. Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1235 (11th Cir. 2010). Whether the employer intended to deny the
benefit is irrelevant. Id. However, an employer is not liable for failing to reinstate
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an employee after she has taken FMLA leave if it can show that it refused to
reinstate her for a reason unrelated to FMLA leave. Id. at 1236. Thus, in order for
an employer to be held liable for FMLA interference, the request for leave must
have been the proximate cause of the termination. Schaaf v. Smithkline Beecham
Corp., 602 F.3d 1236, 1242 (11th Cir. 2010). We have concluded that a plaintiff
who failed to present evidence from which a reasonable jury could find that an
employer’s proffered reasons were pretextual with respect to an ADA claim had
“[f]or the same reasons” failed to present evidence of a causal connection in her
FMLA interference claim. Wascura, 257 F.3d at 1248.
Here, as analyzed in detail above, the only reasonable inference the evidence
allows is that Dollar General terminated Thomas because it uncovered evidence
that she either falsified company records or worked associates “off the clock.”
Though the burden of proving an affirmative defense rested with the company, the
district court applied the proper standard for an FMLA interference analysis when
it stated that “if an employer can show that it would have discharged the employee
had she not been on FMLA leave, then the employer can deny the employee’s right
to reinstatement.” Krutzig, 602 F.3d at 1235. It did not err merely because it
relied on its analysis of the ADA pretext issue in its discussion of the interference
claim, because its analysis explained how the evidence compels a finding that
Thomas was terminated for falsifying CBL records. Because there is no genuine
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issue of material fact as to whether Thomas was terminated for a reason unrelated
to her FMLA leave, Dollar General was entitled to summary judgment on the
FMLA interference claim.
III.
To state a claim for FMLA retaliation, Thomas had to show must show that
Dollar General intentionally discriminated against her because she engaged in
statutorily protected activity. Schaaf, 602 F.3d at 1243. Absent direct evidence of
the employer’s intent, courts evaluate FMLA retaliation claims under the
McDonnell Douglas burden-shifting framework. Id. To establish a prima facie
case of FMLA retaliation, the plaintiff must show that: (1) she engaged in
statutorily protected conduct; (2) she suffered a materially adverse action; and (3)
the adverse action was causally related to the protected conduct. Id. The plaintiff
may satisfy the causal connection element by showing that the protected activity
and adverse action were “not wholly unrelated.” Krutzig, 602 F.3d at 1234.
Generally, an employee can establish that these events were not wholly unrelated
by showing that the decisionmaker was aware of the protected conduct at the time
of the adverse action. Id. Where there is no evidence that a decisionmaker was
unaware of the protected conduct, temporal proximity between the protected
conduct and the adverse action is generally sufficient circumstantial evidence to
create a genuine issue of material fact of a causal connection. Hurlbert v. St.
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Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). However,
the FMLA is not implicated if an employee’s absence permits her employer to
discover past professional transgressions that then lead to an adverse employment
action against the employee. Schaaf, 602 F.3d at 1242.
The evidence of causation before the court was insufficient to allow a
reasonable factfinder to infer that Dollar General terminated Thomas in retaliation
for taking FMLA leave. Though Thomas’s termination closely followed her leave,
this temporal proximity does not create a genuine issue of fact on the question of
causation, because her leave permitted the company to discover her professional
misconduct when Gomillion visited her store in the wake of a robbery. Schaaf,
602 F.3d at 1242. Moreover, Thomas cannot establish that the proffered
legitimate, non-discriminatory reason for terminating her was a pretext for
retaliation, for the reasons discussed above in relation to her ADA claim. Dollar
General was due summary judgment on the FMLA retaliation claim.
AFFIRMED.

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