Madonna Massey-Diez v. U of IA Community Medical etc

Filing

OPINION FILED - THE COURT: Diana E. Murphy, C. Arlen Beam and Raymond W. Gruender AUTHORING JUDGE:C. Arlen Beam (PUBLISHED) [4417683] [15-2924]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2924
___________________________
Madonna Massey-Diez
lllllllllllllllllllll Plaintiff - Appellant
v.
University of Iowa Community Medical Services, Inc.
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Southern District of Iowa - Davenport
____________
Submitted: March 17, 2016
Filed: June 27, 2016
____________
Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
____________
BEAM, Circuit Judge.
Madonna Massey-Diez, a physician assistant (PA) formerly employed by
University of Iowa Community Medical Services, Inc. (UICMS), appeals the district

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court's1 adverse grant of summary judgment on claimed violations of the Family and
Medical Leave Act of 1993 (FMLA). We affirm.
I.

BACKGROUND
A.

Massey-Diez's Failure to Adhere to UICMS's Charting Policies

Because this case comes to us on UICMS's motion for summary judgment, we
portray the facts in the light most favorable to Massey-Diez. Loftness Specialized
Farm Equip., Inc. v. Twiestmeyer, 818 F.3d 356, 360 (8th Cir. 2016). Massey-Diez
began working for UICMS at its North Liberty, Iowa, clinic as a PA in September
2009 under a year-to-year employment contract. In 2011 UICMS adopted "EPIC,"
a software program used to manage patient records, track patient phone calls, review
laboratory tests, and handle prescription refills. Promptly updating a patient's medical
information on EPIC after the patient's visit (also known as "charting") is important
for billing and for presenting providers with current information about the patient. In
order to encourage prompt charting, UICMS employs nonbinding "Standards of
Excellence," which require that dictation be done within 24 hours of a patient's visit
and that once that dictation is transcribed, the transcription be reviewed and signed
within the next 48 hours. The standards also require a patient's charting generally "be
completed within seven days" of a patient's visit and that transcribed dictation in
particular "be filed in the medical record within five working days of [a] visit."2

1

The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
2

The UICMS Executive Director and the district court described the Standards
of Excellence as requiring that providers complete charting within 48 hours of a
patient's visit. Massey-Diez does not dispute this characterization.
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Apart from the Standards of Excellence, UICMS also requires that providers
follow its "Completion of Documentation Policy," enforced through a disciplinary
procedure. The policy defines a provider as "noncompliant" if he is responsible for
thirty or more unsigned records that are, on average, fourteen or more days old. If a
provider is noncompliant, he is subject to "Level 1" discipline, wherein he is formally
notified of his noncompliance and given seven days to complete all delinquent
charting. Failure to do so within the seven-day period subjects the provider to "Level
2" discipline, which consists of notice and paid leave until all delinquent charting is
completed. Failure to complete all delinquent charting in fourteen days results in
"Level 3" discipline, in which the provider's employment is suspended pending
completion of all delinquent charting.
Massey-Diez by all accounts provided excellent patient care. She had
difficulty, however, with promptly updating patient records on EPIC. Providers were
scheduled in back-to-back blocks of time, each allotted to a scheduled patient.
Providers were expected to both attend to the patient and complete their charting
within that period or to complete the charting at another time. These blocks were not
long enough for Massey-Diez to do both, and apparently she was unsuccessful in
having the clinic adjust her schedule to address this issue. North Liberty clinic
manager Heidi Hansen advised supervisors about Massey-Diez's issue with updating
patient records in a timely fashion as early as July 2012. By that fall, Massey-Diez
had over 200 delinquent records. In a November 2012 e-mail exchange Hansen wrote
UICMS executive director Terry Protextor, assistant administrator Mike Hayden, and
Massey-Diez's supervising physician Dr. Powers to express her "concern[] about
Madonna and how far back her missing notes go." Dr. Powers replied to Protextor,
Hayden, and Hansen:
I was ready to address this head on today at Madonna's review,
and then it was cancelled because of her not feeling well.

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I am very concerned as her supervising physician. I am almost to
the point where I would not want her on my license any longer. Not only
should these notes have been done, but I should have been reviewing
10% of them.
I was going to propose a probationary period (? How long) where
she MUST complete these notes, while also continuing work at the
clinic. If this fails, then I would suggest work suspension.
The overlying factors are her home and family stress. Yet, those
problems are now vigorously spilling over into work. Not only with
incomplete work, but with many missed days or 1/2 days.
....
I really want to CC her on this email, but will not. Rather, Mike,
Heidi, and I should complete her review ASAP. Before then, we all need
to come to consensus on how SHE will handle this problem.
Massey-Diez subsequently received a "below expectations" rating on a performance
evaluation for prioritizing and completing work assignments on time. She received
notice of Level 1 discipline on November 30, 2012, and notice of Level 2 discipline
in early December. Sometime in December, she caught up on her charting. She fell
behind again the following February 2013. On March 21 she reached Level 2
discipline for the second time.
Also on March 21, 2013, Massey-Diez attended a meeting with Protextor,
Hayden, and Hansen. They discussed her tardy charting and agreed to try a new
"open" scheduling method that might give Massey-Diez the opportunity to complete
charting between patients. The meeting minutes describe some "Take-aways": "1)
by the end of next week notes have to be caught up so you are w/in 48 hours to
current"; and "2) For 90 days stay current (gave exception for outliers). Expectation
is the UICMS standard of 48 hours." Additionally, a "Counseling & Disciplinary

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Action Report" signed by Massey-Diez stated: "Expectation is that charting will be
current within one week and kept current for the next 90 days. If Madonna is not
compliant with this then contract may not be renewed." Massey-Diez testified that she
did not leave that meeting with the understanding that the renewal of her contract was
in jeopardy and that she believed that during the 90-day period her objective was to
stay in compliance with the Completion of Documentation Policy, rather than the 48hour standard. In an April 3 e-mail, however, Massey-Diez described her "knowing
there is no intent to renew my contract in September." In another, April 15, e-mail, she
described the subjects discussed at the March 21 meeting as including "48 hour
turnaround on notes, [and] intent to not renew my contract in September." MasseyDiez caught up on her charting, but she fell behind once more in May and June of
2013.
B.

Massey-Diez's FMLA Leave and UICMS's Decision Not to Renew
Her Employment Contract

On June 17, 2013, Massey-Diez broke her foot and took FMLA leave for a
serious medical condition. Her leave ran until June 30, at which point it became
intermittent, and it ended on July 8. As of the date she took leave, she had as many
as thirty-one incomplete charts that were five or more days old and so was in violation
of the 48-hour turnaround time agreed to in the March 21 meeting. At that time,
however, she was compliant under the Completion of Documentation Policy. While
she was on FMLA leave, Massey-Diez was contacted for information on when she
would return to work. She also was asked to attend to her EPIC inbox and the EPIC
inbox of another employee named Savita from home. This included responding to
patient phone calls, attending to prescription refills, sending messages, performing
triage, and reviewing laboratory tests. Massey-Diez testified that at no point while on
FMLA leave did she decline to perform the work requested of her nor did she express
any reservations about doing so. Further, Massey-Diez testified that no one at UICMS
stated or implied that her failure to comply with directives to work would result in an
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adverse employment action. She also testified: "When they were asking me to do
things from home, I basically did it because I felt like I had to"; and, "[I]t wasn't a
question of will you do this. It was basically I need you to do this." On June 26,
Massey-Diez came into the clinic for part of a day to see patients before her foot was
fully healed.
The record presents the following specific communications between MasseyDiez and UICMS: On June 17, Hansen text messaged Massey-Diez to ask, at the
suggestion of Dr. Powers, whether she would be able to see patients while she was on
crutches. Massey-Diez indicated she could not. On June 21, Hansen text messaged
Massey-Diez that she had heard from Dr. Powers that Massey-Diez may be back the
next week. Massey-Diez replied that she planned to try but that she did not want to
commit to doing so at that time. She also stated in her reply: "I have kept up with my
inbox since I've been out. Hopefully this has helped the docs somewhat." MasseyDiez indicated that she hoped her time spent on her inbox and possibly transitioning
back to part-time could offset her depletion of paid time off (PTO) while on FMLA
leave so that she would retain some PTO to use to visit her family later that summer.
Hansen suggested that Hayden may have some ideas for how Massey-Diez could
return to work given her injury. Massey-Diez e-mailed Hayden that day:
Heidi recommended I contact you as she said you had a couple of
ideas on me possibly returning to work on Monday, part time if tolerated.
I'm definitely open for suggestions.
I have continued to handle my inbox and help with Savita's in box
from home. Hopefully this has helped the docs in the clinic...
I will be on and off EPIC today.
Hayden responded, suggesting she could either see patients on a part-time basis or in
a modified exam room, "abstract" patient charts at her desk, or both. Massey-Diez did

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not reply to this e-mail, and she testified that she objected to the fact "that he was even
giving me the option to work while on FMLA. It's my understanding that that's not
allowed."
On June 25 Massey-Diez and Hansen text messaged each other about MasseyDiez's coming in to work the morning of the 26th. Also on the 25th, Hayden e-mailed
Hansen: "Heidi – looks like Madonna is behind. Can we let her know?" On the 26th
Hansen wrote in an e-mail to Massey-Diez:
You currently have nine notes that have not been done in EPIC
which are prior to 6/12/13 and that you have received two notices to
complete one note from 6/5/2013 of which you have received three
notices to complete, and 21 incomplete notes (two notices sent) also
prior to 6/12/13.
Please get these completed ASAP as we are finishing the fiscal
year.
The next day, June 27, Hansen text messaged Massey-Diez: "Hey. You've got
numerous notes out there incomplete or missing. Last count was over 30 14 days or
older. I've also received a list that the coder has requested 3 times. Can you please
log in and take care if [sic] these?" On July 1, Hansen text messaged Massey-Diez:
"Morning. We are going to be short staffed this week with Dr E filling in Wed and
two QC PA's on Friday. Could I get you to log in and help with refills etc?" MasseyDiez indicated that she had been doing this. On July 5, Hansen text messaged: "Hey
ya. We're [sic] you checking the inbox today?" Massey-Diez again replied that she
was.
Massey-Diez was also in contact with Dr. Powers during this time. It was Dr.
Powers who had diagnosed her broken foot, and while examining her he commented
that her injury was one that could not be faked. Massey-Diez took the comment as a

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hostile implication that she would fake an injury to get out of work. She also was told
by a nurse that Dr. Powers had made the same comment to other staff members at the
clinic. On June 20, 2013, Massey-Diez communicated to Dr. Powers that her hope
was to return to work the following Monday, June 24. (This, presumably, prompted
Hansen's June 21 text to Massey-Diez the next day.) On the morning of June 21, Dr.
Powers text messaged her that the clinic was going to be busy that day and so she
should stay up to date on her and Savita's inboxes. Dr. Powers testified that this text
message from him appeared to be a directive. He acknowledged that he should not
have been directing her to work but explained that he was not aware that she was
entitled to be completely free of work duties, thinking she was only entitled to reduced
responsibilities.3 On June 25 and July 2, Dr. Powers again directed Massey-Diez to
stay up on her and Savita's inboxes. Dr. Powers testified that the clinic was short
staffed at the time, and both he and Hansen testified to feeling frustrated about the
lack of providers impinging on the clinic's ability to deliver care to patients. Both Dr.
Powers and Hansen informed Massey-Diez that the clinic was short staffed.
On June 28, Hansen sent the following e-mail to Protextor, Hayden, and Dr.
Powers:
Madonna has 18 charts with no note that are at least 14 days old.
She has 17 charts with incomplete notes that are at least 14 days old.
I sent her an email the other day asking her to complete them, I
also sent her a text message mid-day yesterday saying she had numerous
outstanding charts. Just out of curiosity I looked at the charts of the

3

The record does not indicate whether, on June 21, Dr. Powers's text message
to Massey-Diez directing her to work occurred before or after Massey-Diez's text
message to Hansen stating that she was working on her and Savita's inboxes, but we
will resolve this ambiguity in Massey-Diez's favor and assume that she performed this
work at Dr. Powers's request rather than on her own initiative.
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people she saw when she worked on Wednesday[, June 26,] and none of
the six patient [sic] she saw have notes that are complete.
On or around July 2, Protextor, Hayden, and Dr. Powers discussed Massey-Diez's
charting issues over a conference call and together decided that UICMS would not
renew her contract, which was set to expire that coming September. At this meeting,
Dr. Powers expressed his reservations about the accuracy of Massey-Diez's notes and
his "feeling[] that [he] was losing confidence in her ability to maintain complete notes
and that [he] was not comfortable with continuing as her supervising physician for that
reason." Dr. Powers testified that there was not a specific discussion of any particular
standard: "I don't remember discussing 20 charts versus 30 charts, 10 days versus 14
days. I don't remember that discussion at all, but I remember a discussion about just,
once again, seeing a large number of incomplete charts." Testimony from Hayden and
Protextor corroborates the lack of mention of a particular standard at the meeting.
Hayden's testimony regarding the meeting is as follows:
A conference call about Madonna's lateness in her charts, and Dr. Powers
is concerned, as it–he's clearly stated from the–every time it's come up
as an issue from November or October in 2012, he is concerned about his
responsibility when she is noncompliant with her charting.
So I think at that point there was a discussion on, you know, we
talked to her about it before, she's taken time off, she's been–she has
been–just continued to be noncompliant with this policy and even–she
might get current, but then she just kind of is up and down like this
(indicating) and I don't think we're going to renew her contract because
of that. I think it was kind of a group discussion and what do we want
to do about it and I don't think we can renew it.
Massey-Diez returned to work July 8, and she was informed by letter the next
day that her contract would not be renewed. Massey-Diez met with Dr. Powers to
discuss the decision not to renew her contract, and Dr. Powers gave as the reason for

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the decision Massey-Diez's falling behind in charting for a third time, specifically
mentioning that she was more than two weeks behind in her notes as of June 26.
Massey-Diez pointed out that she was on FMLA leave, and Dr. Powers responded
with a chuckle that she should have worked on her charting while she was on leave.
Massey-Diez brought three claims against UICMS: that it interfered with her
exercise of rights provided her by the FMLA; that it discriminated against her for
exercising those rights;4 and that it failed to pay her wages for work done while on
FMLA leave. The district court granted UICMS's motion for summary judgment on
each of Massey-Diez's claims. It determined that Massey-Diez created no factual
dispute as to whether she was coerced to work while on FMLA leave, whether
UICMS failed to renew her contract because she took FMLA leave, and whether she
was paid for work she performed while on FMLA leave. Massey-Diez appeals the
dismissal of her interference and discrimination claims.
II.

DISCUSSION

We review the district court's grant of summary judgment de novo, affirming
if "the evidence, viewed in the light most favorable to the nonmoving party, presents
no genuine issue of material fact." Gazal v. Boehringer Ingelheim Pharm., Inc., 647
F.3d 833, 837 (8th Cir. 2011). "A dispute is genuine if the evidence is such that it
could cause a reasonable jury to return a verdict for either party; a fact is material if
its resolution affects the outcome of the case." Id. at 837-38. The FMLA entitles
eligible employees (which Massey-Diez was) to twelve workweeks of leave per year
for specified reasons, including "a serious health condition that makes the employee
unable to perform the functions of the position of such employee." 29 U.S.C.

4

Massey-Diez originally styled this as a "retaliation" claim under 29 U.S.C.
§ 2615(a)(2), but the district court determined it was more properly characterized as
a § 2615(a)(1) "discrimination" claim and Massey-Diez does not dispute this.
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§ 2612(a)(1)(D). It is "unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise," an employee's rights under the FMLA. Id.
§ 2615(a)(1). Massey-Diez claims UICMS both interfered with her exercise of her
right to take medical leave and discriminatorily refused to renew her contract for
exercising that right.5
A.

Interference

The theory of Massey-Diez's interference claim is that UICMS's directives to
work, which Massey-Diez believed she had no choice but to comply with, interfered
with her right under the FMLA to take leave. To prevail on an interference claim, an
employee has the burden of proving that she was entitled to a benefit under the
FMLA, that the employer "interfered with," i.e., denied the employee, that entitlement,
and that the reason for denial was connected to the employee's FMLA leave. Stallings
v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006). Even if successful on this
front, a claim for interference will fail unless the employee also shows that the
employer's interference prejudiced the employee as the result of a real, remediable
impairment of her rights under the FMLA. Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 89-90 (2002). The employer's intent is immaterial to an FMLA
interference claim. Stallings, 447 F.3d at 1050. One way an employer interferes with
an employee's entitlement to FMLA leave is by "discouraging an employee from using
5

There appears to be an unresolved difference of opinion in our circuit as to
whether the type of claim Massey-Diez asserts–that an adverse action by her employer
was based in part on her exercise of rights under the FMLA–is actionable under
§ 2615(a)(1) or (a)(2). Compare Lovland v. Emp'rs Mut. Cas. Co., 674 F.3d 806, 811
(8th Cir. 2012), with Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1006
(8th Cir. 2012). The plain language of § 2615(a)(2) supports the district court's
characterization of this claim as arising instead under § 2615(a)(1). Accord 29 C.F.R.
§ 825.220(c) ("The Act's prohibition against interference prohibits an employer from
discriminating or retaliating against an employee . . . for having exercised . . . FMLA
rights.").
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such leave." 29 C.F.R. § 825.220(b).6 But the FMLA does not prohibit "an
employee's voluntary and uncoerced acceptance (not as a condition of employment)
of a light duty assignment while recovering from a serious health condition." Id.
§ 825.220(d). Moreover, "[a]n employer may require an employee on FMLA leave
to report periodically on the employee's status and intent to return to work." Id.
§ 825.311(a). Massey-Diez contends that UICMS's "continual[] and repeated[]"
contact with her to inquire about when she would return and to "insist" she work at
home denied her entitlements under the FMLA. UICMS responds that there is no
dispute that Massey-Diez voluntarily accepted her duties while on leave and was not
coerced into doing so.
At the outset, we note that 29 C.F.R. § 825.311(a) inarguably permitted UICMS
to contact Massey-Diez to inquire about her "status and intent to return to work." As
to UICMS's directives to work on the EPIC inboxes, the issue for review is whether
UICMS coerced Massey-Diez into performing work duties while on FMLA leave or
whether she voluntarily agreed to do so. Whether and under what circumstances an
employer interferes with FMLA rights by contacting an employee on FMLA leave
with a request to work is not a question we have addressed previously. Federal courts
from other circuits, however, have taken the general approach of recognizing the right
of the employer to contact an employee on FMLA leave for certain purposes but also
recognizing that "asking or requiring an employee to perform work while on leave can
constitute interference." Smith-Schrenk v. Genon Energy Servs., LLC, No. H-132902, 2015 WL 150727, at *9 (S.D. Tex. Jan. 12, 2015). For purposes of summary
judgment, courts have drawn the line along a distinction between, on the one hand,
receiving nondisruptive communications such as short phone calls requesting the
6

The regulations cited in this opinion are a "part of the administrative structure
the Secretary [of Labor] devised pursuant to Congress' directive to issue regulations
'necessary to carry out' the [FMLA]. The Secretary's judgment that a particular
regulation fits within this statutory constraint must be given considerable weight."
Ragsdale, 535 U.S. at 86 (citation omitted) (quoting 29 U.S.C. § 2654).
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employee to pass on institutional knowledge or property as a professional courtesy,
and, on the other, requiring the employee to complete work-related tasks or produce
work product. Compare O'Donnell v. Passport Health Commc'ns, Inc., 561 F. App'x
212, 216-18 (3d Cir. 2014) (affirming summary judgment on interference claim
because e-mails requesting paperwork were "de minimis" and "did not require
O'Donnell to perform work to benefit the company and did not materially interfere
with her leave"), Sabourin v. Univ. of Utah, 676 F.3d 950, 961 (10th Cir. 2012) (same
for requests that employee return equipment and data), Callison v. City of Phila., 430
F.3d 117, 121 (3d Cir. 2005) (same where employer enforced abuse-of-sick-leave
policy by visiting employee's home), and Reilly v. Revlon, Inc., 620 F. Supp. 2d 524,
535-37 (S.D.N.Y. 2009) (granting summary judgment where employee merely fielded
brief telephone calls as a "professional courtesy" and did not "produce any work
product" or "complete any assignments during her leave"), with Smith-Schrenk, 2015
WL 150727, at *10 (denying summary judgment where employer "continued
assigning [employee] work" during FMLA leave), Franks v. Indian Rivers Mental
Health Ctr., No. 7:08-cv-1035-slb, 2012 WL 4736444, at *16-17 (N.D. Ala. Sept. 30,
2012) (same where fact issue remained whether employer "ask[ed] or require[d
Franks] to perform work-related tasks during her FMLA leave period"), and
McConnell v. Swifty Transp., Inc., No. 2:04-cv-0153, 2005 WL 1865386, at *7-8
(S.D. Ohio July 29, 2005) (same where employer called to ask employee to perform
work-related tasks and twice visited employee).
Anything to the contrary within this persuasive authority notwithstanding, the
record construed in Massey-Diez's favor demonstrates that although UICMS did direct
her to complete work-related tasks from home, undisputed, material facts exist that
entitle UICMS to judgment as a matter of law. It is uncontroverted that Massey-Diez
never expressed reservations to UICMS about performing work on the EPIC inboxes
while on leave. More than this, she was proactive in seeking ways in which to prevent
depletion of her PTO. She wrote Hayden stating she was "open for suggestions" on
ways in which she might be able to come into work. Additionally, she attempted to
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come into work one day to see patients. Although Dr. Powers suggested to Hayden
that Massey-Diez could use crutches to see patients, and although Hayden made this
suggestion to her, Massey-Diez stated she would not. The record does not contain any
further communications from anyone at UICMS suggesting, let alone requesting, she
come into the clinic. It appears, therefore, that her decision to come into work on June
26 was made on her own initiative and not at UICMS's request. We decline to adopt
the position that the act of contacting Massey-Diez to direct her to attend to inboxes
and suggest she see patients on crutches, without more, mechanically raises an issue
sufficient to survive a motion for summary judgment with no corresponding factual
dispute as to whether those communications were coercive or whether she engaged
in work involuntarily.
This is consistent with FMLA regulations that permit voluntary and uncoerced
acceptance of work by employees on medical leave, so long as acceptance is not a
condition of employment. Those regulations permit "an individual employee on
unpaid leave [to] return[] to work quickly by accepting a 'light duty' or different
assignment." The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 221819 (Jan. 6, 1995) (codified at 29 C.F.R. Part 825). Although Dr. Powers's and
Hansen's directives approach the line of interference set out in the above cases,
Massey-Diez has not presented evidence that UICMS's requests were a condition of
her employment nor that her compliance with them was anything but voluntary.7
Affording considerable weight to the Secretary of Labor's determination of what the
FMLA requires, we conclude that the evidence does not permit a reasonable jury to
find that UICMS interfered with Massey-Diez's right to FMLA leave. Cf. Bacon v.
Hennepin County Med. Ctr., 550 F.3d 711, 715 (8th Cir. 2008) (affirming summary

7

Massey-Diez's testimony that she subjectively felt she had no choice but to
comply with UICMS's requests, without any outward manifestation of that feeling
communicated to UICMS or stronger demands on its part than what appears in the
record, does not create a genuine dispute as to coercion and involuntariness.
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judgment in reliance on FMLA regulations). Therefore, UICMS was entitled to
summary judgment on Massey-Diez's interference claim.8
B.

Discrimination

Massey-Diez also claims that UICMS refused to renew her contract because she
took leave and thereby discriminated against her based on her exercise of her FMLA
rights. Her theory is that UICMS determined her charting was tardy by including in
its count days on which she was on FMLA leave. Massey-Diez is of course correct
that UICMS would not be permitted to do this, as employees on FMLA leave are
entitled to be free of work responsibilities. Because Massey-Diez was compliant
under the Completion of Documentation Policy when she took leave, an adverse
employment action justified by failure to adhere to that policy while she was on leave
would necessarily violate the FMLA.
Unlike a claim for interference under the FMLA, a discrimination claim rests
on a connection between an adverse employment action and an illegal motive on the
part of the employer. Pulczinski, 691 F.3d at 1006. In the absence of direct evidence
of such a connection we have imported the burden-shifting framework from Title VII
cases set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). E.g.,
Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013).
1.

Direct Evidence

Massey-Diez argues that direct evidence of discrimination exists because "[t]he
sequence of events surrounding [her] use of FMLA leave in this case establish[es] a
specific link between her taking leave and UICMS's ultimate decision not to renew her

8

Because we affirm summary judgment on this ground, we need not address
UICMS's argument as to prejudice.
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contract." "Direct evidence provides a strong causal link between the alleged
discriminatory bias and the adverse employment decision." McCullough v. Univ. of
Ark. for Med. Scis., 559 F.3d 855, 861 (8th Cir. 2009). Direct evidence may be
circumstantial if the inferred causal link is strong enough. Griffith v. City of Des
Moines, 387 F.3d 733, 736 (8th Cir. 2004). The bias, however, must be that of the
decision maker and must relate to the decisional process. Doucette v. Morrison Cty.,
Minn., 763 F.3d 978, 986 (8th Cir. 2014).
Massey-Diez argues the following constitutes direct evidence of discrimination:
(1) UICMS's inquiries and requests that Massey-Diez work; (2) Hansen's and Dr.
Powers's admitted frustration at understaffing; (3) Massey-Diez's coming in to work
on June 26; (3) Hansen's instruction to complete late charting "ASAP" and her followup text message sent the next day; (4) various references to the Completion of
Documentation Policy standard (thirty or more notes averaging fourteen or more days
behind); (5) the four-day gap between Hansen's June 28 e-mail to Protextor, Hayden,
and Dr. Powers, and their July 2 decision not to renew her contract; and (6) Dr.
Powers's comment that Massey-Diez should have completed charting while on leave.
Massey-Diez does not cite any case finding direct evidence of discrimination on
similar facts.
Cases finding direct evidence of discrimination usually involve statements or
actions more blatant than anything presented in this case. Cf. Duckworth v. St. Louis
Metro. Police Dep't, 491 F.3d 401, 406 (8th Cir. 2007) (finding e-mail stating "'I
believe there is a definite need for female officers on the nightwatch'" direct evidence
of gender-based discrimination); Browning v. President Riverboat Casino-Mo., Inc.,
139 F.3d 631, 635 (8th Cir. 1998) (finding use of racial slur by supervisor direct
evidence of race-based discrimination). Nothing so clear connects UICMS decision
makers and their decision-making process with an illegal motive. References to
Massey-Diez completing charting while on leave should be viewed in the context of
her voluntary agreement to attend to her EPIC duties, as should UICMS's other
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communications. There is no evidence that UICMS requested Massey-Diez to come
into work on June 26. There is not direct evidence imputing any alleged bias on Dr.
Powers's and Hansen's parts to Protextor and Hayden or the group's decision not to
renew Massey-Diez's contract. The record discloses that the meeting addressed a
general concern with Massey-Diez's repeated failures to keep timely records and the
effect that had on Dr. Powers's confidence in her. Although Hayden, in his testimony
about that meeting, does reference Massey-Diez having taken time off, we do not find
that this isolated statement amounts to a strong enough showing of discriminatory
intent to amount to direct evidence. Hansen's June 28 e-mail to other supervisors was
sent shortly after completion of the 90-day probationary period when review was
warranted, mitigating any implications from its timing, and that e-mail merely points
out that Massey-Diez was behind on charting without directly invoking the
Completion of Documentation Policy standard. While Hansen's June 27 text to
Massey-Diez did make mention of that standard, Hansen was not involved in the
decision to not renew Massey-Diez's contract. We agree with the district court that
the sequence of events alone does not give rise to a causal link between UICMS's
alleged discriminatory motive and its decision not to renew Massey-Diez's contract
strong enough to permit her to forgo the burden-shifting framework.
2.

Circumstantial Evidence

Massey-Diez also argues circumstantial evidence establishes discrimination.
We apply the McDonnell Douglas framework to discrimination claims where the
employee attempts to prove improper motive through circumstantial evidence:
First, the employee must establish a prima facie case of retaliatory
discrimination by showing that "she exercised rights afforded by the Act,
that she suffered an adverse employment action, and that there was a
causal connection between her exercise of rights and the adverse
employment action." Second, once the employee establishes a prima
facie case, the burden shifts to the employer to artic[ulate] a legitimate,
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nondiscriminatory reason for its actions. Finally, the burden shifts back
to the employee to demonstrate that the "employer's proffered reason is
pretextual." The employee must present evidence that "(1) creates a
question of fact regarding whether [the defendant's] reason was
pretextual and (2) creates a reasonable inference that [the defendant]
acted in retaliation."
Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006) (second and third
alterations in original) (citations omitted) (quoting Smith v. Allen Health Sys., Inc.,
302 F.3d 827, 832-33 (8th Cir. 2002)). The district court found that Massey-Diez
failed to present evidence creating a dispute as to pretext. Although UICMS contends
that Massey-Diez also failed to create a dispute as to causation between the alleged
bias and adverse action, we will assume without deciding that Massey-Diez has
presented a prima facie case of discrimination and turn to the issue of pretext.
UICMS has proffered Massey-Diez's tardy charting as a nondiscriminatory
justification for deciding not to renew her contract.9 Massey-Diez must present some
evidence that this proffered reason is a pretext "by establishing that the employer's
'justification for the [adverse action] was unworthy of credence.'" Id. at 867

9

UICMS contends that it is more accurate to view Dr. Powers's loss of
confidence in Massey-Diez as the reason for nonrenewal, rather than the failure to
meet any particular charting standard. This is a distinction without a difference. Dr.
Powers's loss of confidence arose as a result of the tardy charting and the charting was
considered tardy–according to UICMS's proffered legitimate justification–because she
failed to comply with the conditions of her probationary period. Dr. Powers's stated
lack of confidence in the accuracy of Massey-Diez's notes arose from their tardiness:
"I remember stating [at the July 2 meeting] that the longer notes are delinquent, and
especially notes that aren't even started, I have a lot of reservation about the accuracy
of the content of those notes." UICMS has not presented any reason unrelated to tardy
charting for Dr. Powers's loss of confidence.
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(alteration in original) (quoting Smith, 302 F.3d at 833-34). A sufficiently strong
prima facie case may itself establish pretext. Id. Massey-Diez can also show pretext
by demonstrating that the employer's proffered reason has no basis in
fact, that the employee received a favorable review shortly before he was
terminated, that similarly situated employees who did not engage in the
protected activity were treated more leniently, that the employer changed
its explanation for why it fired the employee, or that the employer
deviated from its policies.
Stallings, 447 F.3d at 1052. Further, an employee can prove pretext "by persuading
the court that a [prohibited] reason more likely motivated the employer" than did a
concededly sufficient proferred justification. Id. (quoting Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Massey-Diez argues first that "UICMS's stated reason that it did not renew
Massey-Diez's contract because she continued to have delays in charting before taking
FMLA leave is inconsistent with its own practice and policies" because the only
system for discipline was the Completion of Documentation Policy, with which
Massey-Diez was compliant as of the date she took leave. But this argument ignores
the undisputed conditions of her 90-day probationary period agreed to in the March
21 meeting. Second, Massey-Diez argues that aside from charting, she was regarded
as an excellent provider and her performance reviews reflect that fact. But of course
this argument does nothing to undercut the credibility of UICMS's justification–that
it was concerned about charting, an important aspect of running the clinic. She also
points to references made to the Completion of Documentation Policy by UICMS
supervisors, pointing out, correctly, that UICMS was not permitted to count days
Massey-Diez was on leave in calculating how late her charting was. But all evidence
in the record concerning the July 2 meeting shows that the Completion of
Documentation Policy was not discussed. Massey-Diez, of course, bears the burden

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to prove pretext. Third, Massey-Diez points out that UICMS employees were not
adequately trained on what rights the FMLA provides employees. But this alone is
not a basis for discrediting UICMS's proffered justification.
We agree with the district court that Massey-Diez has not created a dispute as
to pretext. The uncontroverted evidence shows that Massey-Diez and her supervisors
understood the March 21, 2013, meeting established a 90-day period during which
Massey-Diez was expected to complete all charting within 48 hours, and that she
failed to meet this requirement throughout that period. It also shows, without dispute,
that at the time she took FMLA leave she was not in compliance with that requirement
and that Massey-Diez understood her contract renewal to be in jeopardy if she did not
comply. We are not persuaded that the timing of UICMS's decision and MasseyDiez's taking leave creates a dispute about pretext. "Evidence that the employer had
been concerned about a problem before the employee engaged in the protected activity
undercuts the significance of the temporal proximity." Smith, 302 F.3d at 834. Dr.
Powers's and Hansen's concerns about Massey-Diez's charting and Dr. Powers's
concern about his license were communicated to Protextor and Hayden in June and
November 2012, months before she took her leave. Further, e-mails among the
UICMS supervisors referring to Massey-Diez's late charting occurred June 25 to 28,
in the days following June 19, when the 90-day probationary period expired,
mitigating any implication from the timing of the decision and her leave.
It is true that Hansen's June 27 text message to Massey-Diez appears to
reference the Completion of Documentation Policy standard and that her June 28 email to Protextor, Hayden, and Dr. Powers appears to have counted time that ran after
Massey-Diez took leave, but this does not provide any basis for contesting MasseyDiez's noncompliance during the 90-day period, which she does not dispute. Neither
does the mere mention of that standard by someone not involved in the decision, and
made outside of the meeting where the decision was made, without more, amount to

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a shift in UICMS's explanation. Hayden's uncorroborated testimony that there was
concern at the meeting about her having taken time off does not lessen the credibility
of UICMS's concern with prompt charting. Although Dr. Powers told Massey-Diez
that she should have completed her charting while on leave, no evidence imputes his
misunderstanding of the FMLA's protections to the decision made at the June 2
meeting or contradicts the assertion by all involved at that meeting that his concerns
were sparked by a general problem with late charting rather than tardiness specifically
occurring while Massey-Diez was on leave.
We also agree with the district court that the comparator offered by MasseyDiez was not situated similarly enough to her to show pretext through differential
treatment. Massey-Diez offered evidence of another UICMS employee from another
clinic who was also behind in charting and who was not disciplined as severely.
At the pretext stage, "the test for determining whether employees
are similarly situated to a plaintiff is a rigorous one." [The plaintiff]
must show that she and the employees outside of her protected group
were "similarly situated in all relevant respects." "[T]he individuals used
for comparison must have dealt with the same supervisor, have been
subject to the same standards, and engaged in the same conduct without
any mitigating or distinguishing circumstances."
Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012) (alterations in
original) (first two quotations quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853
(8th Cir. 2005); next quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)).
The comparator offered by Massey-Diez worked under a different supervising
physician and in a clinic located in a rural as opposed to urban setting. The
conditions, such as scheduling pressures and the ability to recruit new employees,
attending an urban versus a rural clinic and Dr. Powers's subjective sensitivity to the
threat tardy charting posed to his medical license are relevant aspects of Massey-

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Diez's circumstances that distinguish her from her comparator.10 Therefore we
conclude that disparate treatment of Massey-Diez and her proposed comparator does
not present a factual dispute as to pretext.
Finally, were Massey-Diez to demonstrate a prima facie case of discrimination,
we do not believe it would be of such strength as to compel a finding that any
proffered justification must be pretextual. Neither does the evidence create a dispute
as to whether it was more likely that nonrenewal of Massey-Diez's contract was
motivated by a prohibited reason than UICMS's proffered justification. There does
not appear to be any evidence that a discriminatory intent underlaid UICMS's decision
at the July 2 meeting. The reasons for Dr. Powers's concerns communicated at that
meeting–tardy charting in general, not tied to a particular standard, and the accuracy
of her notes–do not evidence a discriminatory intent.
For these reasons, we conclude that Massey-Diez has not presented
circumstantial evidence of discriminatory intent by UICMS. Therefore, we agree with
the district court that UICMS was entitled to judgment as a matter of law on MasseyDiez's discrimination claim as well.

10

The comparator's clinic is located in Sigourney, Iowa, which has a population
of about 2,000 and is not particularly close to a larger city. North Liberty, by contrast,
has a population of about 15,000 and is just outside Iowa City, which has a population
of about 70,000. Hayden testified as to the comparator's clinic: "[F]or one thing, I
believe it's Sigourney, Iowa, not–and so it's more difficult to recruit." He also testified
"that Dr. Powers has a different tolerance for [not complying with policies] than" the
comparator's supervising physician.
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III.

CONCLUSION

For the reasons stated herein, we affirm the district court's grant of UICMS's
motion for summary judgment.
______________________________

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