Robert Winterhalter v. Dykhuis Farms, Inc.

Filing

OPINION filed : the district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Danny J. Boggs and R. Guy Cole , Jr., (authoring) Circuit Judges; Solomon Oliver , Jr., Chief District Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0796n.06
No. 11-1743

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT J. WINTERHALTER,
Plaintiff-Appellant,
v.
DYKHUIS FARMS, INC.,

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Jul 23, 2012
LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
OPINION

Defendant-Appellee.

BEFORE:

BOGGS and COLE, Circuit Judges; OLIVER, Chief District Judge.*

COLE, Circuit Judge. Plaintiff-Appellant Robert J. Winterhalter sued Defendant-Appellee
Dykhuis Farms, Inc. for retaliation against, and interference with, Winterhalter’s exercise of rights
under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Dykhuis Farms
terminated Winterhalter’s employment on the day that Winterhalter was scheduled to return from
FMLA leave, allegedly due to economic hardship and Winterhalter’s status as the highest-paid and
lowest-performing of the workers in his unit. The district court granted summary judgment in favor
of Dykhuis Farms. For the reasons that follow, we AFFIRM.

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The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern
District of Ohio, sitting by designation.

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I. BACKGROUND
Dykhuis Farms is a family-owned pig farm with multiple facilities located throughout
Michigan and Indiana. Winterhalter began working there in February 2007 as manager of the
breeding herd, which entailed supervising sow-breeding operations at four different farms. He
reported to Erin Ehinger and was paid an annual salary of $55,000. In March 2009, Dykhuis Farms
converted its Shamrock Farm facility from raising male pigs for market to raising young female pigs
for breeding, and transferred Winterhalter to manage that herd only. Winterhalter’s salary remained
the same after the transfer. At Shamrock Farm, Winterhalter reported to Brandon Hill and
supervised two employees: Dan Dalman, the previous manager of Shamrock Farm who received an
annual salary of $45,000; and Tim Hocthanner, a farmhand who received an hourly wage that
amounted to less than $30,000 in earnings in 2009. In April 2009, Hill began documenting situations
in which he was dissatisfied with Winterhalter’s performance. On May 1, 2009, Winterhalter fell,
injuring his rotator cuff and hip, but continued to work throughout the summer and into the fall.
During this time, Dykhuis Farms’s economic position became increasingly precarious. In
the summer of 2009, Dykhuis Farms’s bank informed Dykhuis Farms that it must take “immediate
and drastic measures to improve its financial performance, including immediately reducing the size
of its operations and overhead.” In response, Dykhuis Farms laid off thirteen full-time employees
over a seven-month period and reduced the sizes of its breeding herds. As part of this scheme, it
gradually reduced the size of the herd at Shamrock Farm by twenty-seven percent between late
September 2009 and early January 2010.

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As Winterhalter’s injury failed to improve over the summer, he decided to undergo surgery
to repair the damage to his rotator cuff. Winterhalter gave Dykhuis Farms notice and went on FMLA
leave beginning October 12, 2009, shortly after Dykhuis Farms had begun the process of reducing
the herd at Shamrock Farm. While Winterhalter was on leave, the management at Dykhuis Farms
began discussing “laying [Winterhalter] off due to lack of work at Shamrock and the rest of the
farm.” Upon determining that “Dan and Tim were doing great” in Winterhalter’s absence, Dykhuis
Farms decided to go through with the lay-off.
On the day Winterhalter was scheduled to return from FMLA leave, he was asked to come
to the farm to retrieve a return-to-work authorization form. When Winterhalter arrived, he received
a termination letter informing him that Dykhuis Farms “has eliminated your position as Manager of
the Shamrock Unit.” The letter explained that “the primary reason for this job termination is for
financial reasons,” but also referenced his “job performance” and verbal warnings that he had
received “over the past two and a half years.” Two weeks after Dykhuis Farms terminated
Winterhalter, it posted internally for a position managing the raising of pigs for market, which paid
$12.00 per hour. It did not notify Winterhalter of this new position.
Winterhalter filed a complaint in the United States District Court for the Western District of
Michigan on April 23, 2010, alleging that Dykhuis Farms terminated him because he took medical
leave, in violation of the FMLA’s retaliation and interference provisions. Dykhuis Farms responded
that it terminated Winterhalter for economic reasons and because he was the lowest-performing and
highest-paid of the employees in his unit. The district court granted Dykhuis Farms’s motion for
summary judgment on both the retaliation and the interference claims. This appeal followed.
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II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment de novo. Donald v. Sybra, Inc.,
667 F.3d 757, 760 (6th Cir. 2012). Summary judgment is proper when, based on the totality of the
record, “the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court may not “weigh the
evidence or determine the truth of any matter in dispute,” but must “draw all inferences from the
record in the light most favorable to the nonmoving party.” Stratienko v. Cordis Corp., 429 F.3d
592, 597 (6th Cir. 2005). “[T]he court should give credence to the evidence favoring the nonmovant
as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at
least to the extent that that evidence comes from disinterested witnesses.’” Id. (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)) (alteration in original). Because
employer-defendants “will often be able to respond only through the testimony of their employees,”
courts may consider the uncontradicted affidavits or testimony of a defendant-employer’s employees.
Id. at 598.
B. FMLA Claims
The FMLA provides two avenues to vindicate the rights of an employee who alleges that he
has been wrongfully terminated as a consequence of taking FMLA leave: the “entitlement” or
“interference” theory and the “retaliation” or “discrimination” theory. Arban v. West Publ’g Corp.,
345 F.3d 390, 400-01 (6th Cir. 2003). The “retaliation” or “discrimination” theory prohibits an
employer from “discharg[ing] or in any other manner discriminat[ing] against any individual for
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opposing any practice made unlawful by this subchapter.”

29 U.S.C. § 2615(a)(2).

The

“entitlement” or “interference” theory derives from the FMLA’s creation of substantive rights. It
prohibits employers from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of” FMLA
rights, Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 87 (2002) (quoting 29 U.S.C.
§ 2615(a)(1)), and entitles any eligible employee who takes FMLA leave “to be restored by the
employer to the position of employment held by the employee when the leave commenced” or “to
be restored to an equivalent position with equivalent employment benefits, pay, and other terms and
conditions of employment,” 29 U.S.C. § 2614(a)(1).
These provisions do not create a greater right to reinstatement or protection against
termination than the employee would receive if he had not taken FMLA leave. Arban, 345 F.3d at
401. Therefore, an employer may dismiss an employee who has taken FMLA leave, but only “if the
employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the
challenged conduct.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006).
1. FMLA Retaliation/Discrimination
Although Winterhalter alludes to a “mixed motives” theory of FMLA retaliation, he brings
his case under a theory of indirect discrimination, invoking “the tripartite burden-shifting
framework” announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Bryson v.
Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). Under this rubric, Winterhalter must present
sufficient evidence to establish his prima facie case, after which the burden shifts to Dykhuis Farms
to show a legitimate, non-discriminatory reason for terminating Winterhalter. Id. If Dykhuis Farms
is successful, the burden shifts back to Winterhalter to demonstrate that Dykhuis Farms’s stated
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reason is pretextual. Id. The parties do not dispute that Winterhalter has satisfied the elements of
his prima facie case. Therefore, our inquiry will focus exclusively on whether a genuine dispute of
material fact exists regarding whether Dykhuis Farms and Winterhalter met their respective burdens
under the second and third McDonnell Douglas prongs.
a. Dykhuis Farms’s Proffered Reasons for Terminating Winterhalter
Dykhuis Farms advances two legitimate reasons unrelated to the exercise of FMLA rights
for terminating Winterhalter: first, that severe economic hardship forced it to eliminate numerous
positions throughout its organization, including one at Shamrock Farm; and second, that
Winterhalter was the highest-paid and lowest-performing worker at Shamrock Farm, prompting
Dykhuis Farms to select him for termination.
Dykhuis Farms has produced sufficient evidence to support its assertions regarding economic
hardship. The November 2009 Employee Newsletter (“the Newsletter”) corroborates Dykhuis
Farms’s claim that it was taking “immediate and drastic measures to improve its financial
performance.” The Newsletter states that Dykhuis Farms is “starting [a] sow reduction plan as part
of a long range strategy” and ends with the ominous note: “We are not bankrupt. That is an ugly
rumor that needs to be stopped.”
Dykhuis Farms has also produced sufficient evidence to support its assertions regarding
Winterhalter’s pay and performance. Dykhuis Farms showed Winterhalter’s poor performance
through the deposition testimony of both of his previous supervisors, notes that each supervisor took
documenting Winterhalter’s performance deficiencies, and a 2008 performance evaluation, which
described Winterhalter as performing below standards in three of the six areas reviewed.
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Winterhalter does not dispute that he received a substantially higher salary than the other two
workers at Shamrock Farm.
b. Winterhalter’s Showing of Pretext
Winterhalter may establish pretext by showing “either (1) that the proffered reasons had no
basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they
were insufficient to motivate discharge.” Tisdale v. Fed. Express Corp., 415 F.3d 516, 529 (6th Cir.
2005). Winterhalter tries to show that Dykhuis Farms’s proffered reasons have no basis in fact by
challenging Dykhuis Farms’s assertion of economic hardship. Winterhalter challenges Dykhuis
Farms’s portrayal of its economic circumstances by focusing on a narrower time frame: Instead of
examining the seven-month period in which Dykhuis Farms claimed to undergo the restructuring that
caused it to lay off thirteen workers, Winterhalter focuses on the two months immediately preceding
and immediately following his termination. During that four-month period, Dykhuis Farms
terminated only four employees, including Winterhalter, but hired six. He urges the Court to infer
from the number of new hires during that four-month period that Dykhuis Farms made a similar
number of new hires throughout its purported workforce reduction. But Winterhalter makes no
showing of any additional hires by Dykhuis Farms during the remaining months in which Dykhuis
Farms terminated workers, and further, he must concede that five of the six newly hired employees
assumed only part-time or seasonal positions, while the thirteen terminated employees left full-time
positions.
Beyond these hirings and firings, Winterhalter challenges the economic-hardship assertion
via the Newsletter’s moments of optimism—its celebration of “rising hog prices” and announcement
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that “it looks like we will turn profitable early next year.” Taken as true, however, none of this
evidence creates a genuine dispute about the facts material to Dykhuis Farms’s assertion of economic
hardship: Winterhalter does not respond to the directive from the bank for Dykhuis Farms to take
“drastic measures to improve its financial performance,” nor does he put forth any financial
documents suggesting that Dykhuis Farms had turned profitable earlier than reported. Further, the
Newsletter’s moments of optimism stand in stark contrast to its general description of cost-cutting
measures. Thus, Winterhalter’s arguments do not create a genuine dispute as to whether Dykhuis
Farms’s assertion of economic hardship has a firm basis in fact.
Nor can Winterhalter show that pay disparities and his poor performance did not actually
motivate his termination. He argues that emails among Dykhuis Farms’s management discussing
whether Winterhalter’s colleagues were “getting stuff done” without him create a genuine dispute
as to whether the management impermissibly considered Winterhalter’s leave when making their
termination decision. But merely taking Winterhalter’s leave as a factor in the termination decision
does not defeat summary judgment in an indirect-discrimination claim—Winterhalter would have
to have brought his claim under a mixed-motive theory to avail himself of this argument. Therefore,
the mere possibility that Winterhalter’s FMLA leave constituted a factor in Dykhuis Farms’s
decision to terminate him does not create a genuine dispute of material fact regarding whether his
high pay and poor performance actually motivated the termination.
Finally, Winterhalter cannot show that pay disparities and performance deficiencies were
insufficient to motivate his termination. He attempts to persuade the court that, while his own
performance may have been lacking, his colleagues struggled even more. He supports this assertion
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with his second-hand knowledge that Dalman had been demoted due to poor performance, and with
evidence that he had more experience with raising young female pigs than the other two workers at
Shamrock Farm.

Taken as true, this evidence does not raise a genuine dispute regarding

Winterhalter’s relative performance at the time he was fired. While Dalman’s performance may
have been poor in the past, Winterhalter puts forth no evidence that Dalman’s performance
deficiencies continued. Further, given Dykhuis Farms’s uncontested assertion that Hill took on
Winterhalter’s supervising responsibilities, Dalman’s and Hocthanner’s comparative levels of
experience did not make them ill-suited to the jobs that they held. Thus, Winterhalter does not put
forth affirmative evidence that he performed better than, or even as well as, his colleagues in the
positions that each held. Coupled with the extra expense of retaining Winterhalter as opposed to
either of the other two, we see no genuine dispute as to the sufficiency of these facts to support
Winterhalter’s discharge.
2. FMLA Entitlement/Interference
Winterhalter asserts that, by terminating him at the end of his FMLA leave, Dykhuis Farms
interfered with his FMLA entitlement “(A) to be restored by the employer to the position of
employment held by the employee when the leave commenced; or (B) to be restored to an equivalent
position with equivalent employment benefits, pay, and other terms and conditions of employment,”
29 U.S.C. § 2614(a)(1). As a threshold matter, Winterhalter bears the burden of establishing by a
preponderance of the evidence that he was entitled to restoration. See Arban, 345 F.3d at 401.
Winterhalter has not created a genuine dispute of material fact as to whether he was entitled
to restoration. As explained above, we find no genuine dispute of fact regarding whether Dykhuis
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Farms was going through a period of serious economic hardship at the time it terminated
Winterhalter. Nor do we find a genuine dispute regarding whether Winterhalter was the highest-paid
or the lowest-performing of the three workers at Shamrock Farm. The district court correctly ruled
that Winterhalter cannot show that he was entitled to restoration to his position or any similar one
and thus Dykhuis Farms is entitled to summary judgment on Winterhalter’s FMLA interference
claim.
III. CONCLUSION
For the reasons stated above, we AFFIRM.

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