Sullivan-Robinson v. Arkansas Board of Parole et al

Filing 52

MEMORANDUM AND ORDER granting 31 Motion for Summary Judgment. Judgment will be entered for the defendants. Signed by Judge Susan Webber Wright on 10/29/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

LAQUISHIA SULLIVAN-ROBINSON,

*
*
Plaintiff,
*
*
vs.
*
*
ARKANSAS PAROLE BOARD; LEROY
*
BROWNLEE, In His Individual Capacity
*
Only; ABRAHAM CARPENTER; RICHARD *
MAYS, JR.; JIMMY WALLACE; JOE
*
PEACOCK; JOHN FELTS; CAROLYN
*
ROBINSON, In Their Individual and
*
Official Capacities; and RICHARD BROWN, *
JR., In His Official Capacity Only;
*
*
Defendants.
*

No. 4:11CV00140 SWW

Memorandum Opinion and Order
Before the Court is defendants’ motion for summary judgment to which plaintiff
responded. Defendants filed a reply to the response. For the reasons stated below, the Court
finds the motion for summary judgment should be granted.
Background1
Plaintiff LaQuishia Sullivan-Robinson, a black female, began working for defendant
Arkansas Parole Board (“the Board”) in April 2006 as a Secretary I. On her one-year service
date, she was promoted automatically to a Secretary II position and received an increase in pay.
During her employment with the Board, she received pay increases at least annually. Before
working for the Board, plaintiff held various jobs after her graduation from high school in 1996.

1

These background facts are taken mainly from defendants’ statement of undisputed facts which
plaintiff did not controvert. See docket entries 26 & 32.

In the Fall of 2007, plaintiff applied for leave under the Family and Medical Leave Act
(“FMLA”) due to pregnancy complications. According to plaintiff, she filed a complaint with
the United States Department of Labor (“DOL”) sometime before early November 2007 because
the Board did not want to apply her FMLA leave retroactively. The Board took no disciplinary
action against plaintiff for missing work due to her medical condition but did try to suspend
plaintiff for failure to pay her portion of her health insurance premiums. According to plaintiff,
the DOL found that the Board should have made her FMLA request retroactive and paid her for
the days she was suspended. Defendants assert that only the chairman of the Board, separate
defendant Leroy Brownlee, knew about plaintiff’s 2007 FMLA request or appeal to the DOL.2

Plaintiff alleges that after she returned to work, she applied for at least two promotions.
Sec. Am.Compl. (doc. 24) at ¶ 12. According to defendants, in November 2007, an
Administrative Assistant I position was awarded to Robin Radford. There is no indication in the
record that plaintiff applied for that position. Plaintiff states she was already performing the
Administrative Assistant I work before she went on FMLA leave, and that when she returned
from her leave, Radford was sitting at plaintiff’s desk and performing her job duties.3 Plaintiff
states that in 2008 she competed for a second Administrative Assistant I position, which was
awarded to Melissa Haney in June of that year. The positions awarded to Radford and Haney

2

Defendants note that during the pendency of this lawsuit, Chairman Brownlee retired and was
replaced by John Felts, who was a member of the Board and a defendant in this lawsuit. Pursuant to
Fed.R.Civ.P. 25(d), Richard Brown, Jr., who was appointed to fill the vacancy caused by Brownlee’s
retirement, is substituted for Brownlee in his official capacity only. See Defs.’ Mot. Summ. J. (doc. 31) at
n.1.
3

Pl’s. Statement of Facts (doc. 40) at 3.

2

carried a minimum qualification of a bachelor’s degree or a high school diploma plus one year of
college coursework plus four years’ specialized or related experience. The job description
provided that: “[o]her job related education and/or experience may be substituted for all or part
of these basic requirements upon approval of the Qualifications Review Committee.” Ms.
Radford had a bachelor degree in Criminal Justice with a minor in Psychology, and Haney had a
bachelor degree in Psychology with a minor in Criminal Justice. Plaintiff reported having a high
school diploma.
In June of 2009, plaintiff’s position title changed to Administrative Specialist 2 as a part
of a statewide job reclassification. In the statewide classification, the Administrative Assistant I
position was changed to Administrative Specialist 3. Plaintiff competed for an Administrative
Specialist 3 position, which was awarded to Michelle Kordsmeier on August 24, 2009. The
minimum education requirements for the position were formal education equivalent to a high
school diploma plus one year specialized training plus three years experience in specialized or
related field. Ms. Kordesmeier had bachelor degrees in both Psychology and Professional
Studies in Criminal Justice. She also had related work experience. In June of 2010, another
Administrative Specialist 3 position opened when Kordsmeier left. However, no one was
interviewed for that position and it was never filled because it was eliminated so that two other
positions at the Board could be upgraded. Lateresa Smith, who already was an Administrative
Specialist 3, assumed most of the duties of Kordsmeier’s poisiton.
On September 2, 2010, plaintiff filed a grievance alleging that she had been sexually
harassed by Board Commissioner and separate defendant James Wallace. Plaintiff’s allegations
that Wallace made inappropriate comments to her were investigated by Commissioner and

3

separate defendant Richard Mays, Jr., who was the Board’s grievance officer and an attorney.
In September 2010, an Administrative Specialist 3 position opened and two of the
candidates for the position were plaintiff and her co-worker, Delores Jones. Ms. Jones was a
two-plus year employee of the Board, working as an Administrative Specialist 2. Before coming
to the Board, Jones had worked for 24 years as a certified unit secretary at St. Vincent Infirmary
in Little Rock, where she was responsible for a variety of clerical, scheduling, policy
interpretations, and family/staff support duties. The candidates for the position were interviewed
by a four-member panel made up of separate defendant Commissioners Carolyn Robinson and
Joe Peacock; Administrative Analyst Melissa Haney, who previously worked in the position; and
Administrative Specialist 3 Tamara Salaam, who would supervise the person selected.
According to plaintiff, Salaam told her that her choice was either Jones or plaintiff. The
choice of the other three interviewers was Jones. Ms. Haney said she thought the person for the
position needed to be a self-starter and, in her opinion, plaintiff was not a self-starter. She also
said she was concerned about plaintiff’s attitude toward people which Haney thought was not as
professional as it needed to be for the position. Ms. Haney explained that the successful
candidate would have to communicate with many people, including inmates and their families,
victims and their families, attorneys, and the Governor’s office. Ms. Haney also said Jones gave
a very good interview and acted as if she was interested in the position itself not just seeing it as
an opportunity to move up. Ms. Haney did say plaintiff’s interview went very well.
Commissioner Peacok said he thought Jones gave the best and most professional interview by
far, asking good questions, answering questions well, knowing what the position was about, and
expressing enthusiasm for the job. Commissioner Robinson said she selected Jones because she

4

came to the interview very well prepared, asked questions, and showed genuine interest in
learning the job and doing it well. According to her resume, while working at the hospital for
more than twenty years, Jones was responsible for “being a communicator which serves as a
liaison between the patients, their families, and the hospital staff.”4 Commissioners Robinson
and Peacock presented to the full Board the panel’s recommendation that Jones be awarded the
position and the Board accepted the recommendation.
On October 14, 2010, plaintiff learned that the position had been awarded to Jones.
Commissioner Peacock said that after the promotion was announced, he visited with Amber
Baldwin, another unsuccessful applicant for the position. He said he and Baldwin talked quite a
bit at work about her family. He told Baldwin that he knew that when an employee has children
it is often hard to have good attendance and that the position was a busy and demanding one and
needed someone with good attendance. He says he had no knowledge about plaintiff’s family
situation or whether she had children.
Plaintiff filed a grievance over not getting the position, and Commissioner and separate
defendant Abraham Carpenter investigated the grievance. He notified plaintiff of his findings in
a memo dated January 13, 2011. He found that the hiring of Jones “was based on the
qualifications and the interview provided by each applicant.”4 Plaintiff did not pursue the
grievance any further.
As to plaintiff’s sexual harassment grievance, Mays notified plaintiff on October 28,
2010, that Wallace had attended sexual harassment training. He thanked plaintiff for bringing

4

Defs.’ Mot. Summ. J. (doc. 31), Ex. 1 (Gillerson Decl. at ¶ 9 and Ex. G to Decl.).

4

Id., Ex.4 (Abraham Decl., Ex. A).

5

the matter to the Board’s attention and encouraged her to let the Board know immediately if she
experienced similar behavior so that prompt action could be taken. Plaintiff appealed Mays’s
resolution of her sexual harassment claim to Brownlee. On November 12, 2010, Brownlee
notified plaintiff that he agreed with the resolution of her claim. He also told her that he had no
authority to grant her the relief she sought - removal of Wallace from the Board - because
Wallace was appointed by the Governor and confirmed by the State Senate. Plaintiff appealed
Brownlee’s decision to the State Employee Grievance Appeals Panel, which denied her
grievance because the relief she sought was beyond the control of agency management.
On November 1, 2010, plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging sexual harassment. The EEOC issued
a right-to-sue letter on November 9, 2010. On February 14, 2011, plaintiff filed a charge of
discrimination with the EEOC alleging she had not received the October 2010 promotion
awarded to Jones in retaliation for having filed an internal grievance and charge of sexual
harassment with the EEOC.
On July 1, 2011, following Brownlee’s retirement, John Felts became Chairman of the
Board, having served as a Commissioner for fourteen years. When he became chairman, Felts
developed a new organization chart. He said he believed that in the past there had been a
problem with employees not following the chain of command, and one of his goals was to make
sure that each employee knew who his or her supervisor was. Chairman Felts met with plaintiff
and her coworkers from the Revocation Section on July 11, 2011, and introduced Jim Williams
as their supervisor. Chairman Felts instructed them to report directly to Williams.
On July 20, 2011, plaintiff filled out a Request for Family and Medical Leave and

6

presented it to Williams. Mr. Williams told plaintiff he would get back with her later in the day.
Plaintiff had a Certification of Health Care Provider in her purse, which had been completed by
her physician two days earlier. Plaintiff personally stamped each page of the certification
“Confidential.” Mr. Williams met with plaintiff later that day and told her she would have to
provide a medical certification form with her request before it could be processed. He also gave
plaintiff a memo explaining this. Plaintiff refused to provide Williams with the certification.
She testified:
[Williams] handed me this letter like a memo letter saying that he’s seen my
acknowledgment form. He’s aware that I’m applying for FMLA, but he needs my
doctor’s certification. And then, at that point, I set the letter down on the desk,
and I was like, ‘You don’t need the doctor’s certification.’ I was like, ‘The
acknowledgment form is just signing off acknowledging that I applied for FMLA.
The approving party is the Director of the Board and HR. So, therefore, I just
need to get you the acknowledgment form to sign off on me like you would sign a
timesheet, and then, give it back to me, and then, I attach the doctor’s certification
and take it over to HR.’
When Williams told plaintiff during the meeting that she must provide the certification or
her FMLA request could not be processed, plaintiff told him “that he didn’t need the . . .
certification to fill the request form,’ and ‘okay that’s fine I’ll just contact the Labor Board.”
During the meeting, which also was attended by Board Hearing Examiner Carol Bohannan,
plaintiff said, “Okay. Is that it,’ ‘[i]s there anything else?” Ms. Bohannan testified she
considered plaintiff insubordinate; her voice was raised and she was pointing her finger. Mr.
Williams described plaintiff’s behavior as rude, discourteous, and insubordinate.
Another meeting was held still later in the day with plaintiff, Felts, Williams, and
Bohannan. The meeting was recorded. During the meeting, Williams recommended that
plaintiff be suspended for two days for insubordination pursuant to the Board’s Employee

7

Manual. Mr. Williams presented a letter to plaintiff outlining the disciplinary action and asked
her to sign it. Plaintiff responded that she “ain’t signing anything. . . . [a]nything else?” Mr.
Williams then pronounced plaintiff not “supervisable” due to her insubordinate attitude and
recommended immediate termination. Chairman Felts, however, directed that they follow
through with the two-day suspension and notified plaintiff they would have a briefing when she
returned.
Plaintiff then asked Williams if he had her paperwork for her medical situation and
Williams responded that she had not provided documentation to him. Plaintiff told Williams his
request was against the law and repeatedly told him she did not have to give it to him. She told
Felts she would give him the certification but would not give it to Williams. Chairman Felts
explained to plaintiff that she needed to deal with her supervisor in the right tone and not tell him
in a disrespectful manner that she did not have to do anything. Plaintiff responded that if she did
not get respect she was not giving any. After plaintiff told either Williams or Felts seven times
during the approximately three-minute meeting that she did not have to give Williams the
certification, Felts ended the meeting.
Plaintiff previously had been disciplined for insubordination. In July 2008, she received
a three-day suspension for insubordination for her lack of cooperation with co-workers and
failing to perform work duties as instructed. As a result of the insubordination, the Board sent
plaintiff to training with the intention of “enhancing her skill and causing acute awareness of her
responsibilities as an employee,” and to “cause her to realize that we all must answer to someone
and when an instruction is given it is to be followed to the best fo her ability.”5

5

Id., Ex.1 (Gillerson Decl. at ¶ 12 and Ex. N to Decl.).

8

Plaintiff was scheduled to return to work on July 25 but she called and notified Williams
she would be out for “personal” reasons. Plaintiff returned to work on July 26 and filed a
grievance challenging her suspension. Plaintiff met with Williams and Felts on July 27, at which
time Felts , having reviewed her personnel file, notified plaintiff in person and in writing that she
would be placed on probation for six months, during which time “[a]ny violations of agency
rules, policies and procedures [could] result in [her] immediate termination.”6
On July 27, Williams e-mailed plaintiff “in an attempt to clarify [her] request for FMLA
that [she] signed on July 20.”7 In the email, Williams instructed plaintiff that she had fifteen
days to submit her certification of illness to him so that he could evaluate her entitlement to the
requested FMLA leave. On August 2, plaintiff emailed Williams and Felts, notifying them that
she did not feel comfortable turning her personal medical information in to anyone other than
personnel.
Plaintiff was absent from work on August 1, 2, and 3. In a letter dated August 3, Felts
notified plaintiff that she had exhausted all of her annual, sick, holiday and birthday leave and
was in a leave without pay status as of 2:30 p.m. that day. He also wrote:
You have requested leave under the . . . (FMLA) and your eligibility for such
leave has been established, but you have failed to provide the documentation
necessary to determine your entitlement to leave. You were previously notified in
writing that you would have fifteen days to submit the physician’s certification to
your direct supervisor. The deadline for the submission of the documentation is
the close of business on August 12, 2011.8
When plaintiff returned to work on August 4, she attempted to give all of her FMLA

6

Id., Ex. 16 (Robinson Dep. at 81 and Dep. Ex. 22); Doc. 49 (Ex. A to Supp. Decl. of Felts).

7

Id., (Dep. Ex. 21).

8

Id. (Dep. Ex. 23).

9

documentation, including her medical certification, to Fiscal Support Supervisor Norma
Gillerson, whose various job duties included handling personnel documentation. Ms. Gillerson
refused the documentation, providing plaintiff with a note that read: “Mr. John Felts came into
my office and asked me if LaQuishia Robinson gave me any documentation. I told hm no. He
told me if LaQuishia gave me any documentation to not to accept it and tell her to give it to her
supervisor.”9
On August 4, Felts terminated plaintiff’s employment. He explained in a letter that he
had learned plaintiff attempted to turn in a medical certification to Gillerson after he instructed
plaintiff to turn it into Williams, her immediate supervisor. The letter said:” Your disobedience
of my directive constitutes defiance of my authority and insubordinate conduct. Due to the fact
that you are currently on probation for insubordinate conduct, your employment with the
Arkansas Parole Board is terminated immediately.”10 Chairman Felts testified he contacted all
the Board members except Wallace and told them he recommended terminating plaintiff.11
On August 8, 2011, plaintiff filed a charge of discrimination with the EEOC alleging she
was suspended and subsequently terminated due to her race and in retaliation for filing two
previous charges of discrimination. On August 6, 2011, the EEOC issued a right-to-sue letter.
Plaintiff also complained to the DOL regarding her termination. It notified plaintiff in a letter
dated August 26, 2011, that “[n]o further action will be taken on your behalf by the Department

9

Id., (Dep. Ex. 24).

10

Defs.’ Statement of Undisputed Facts (doc. 33), at ¶ 53.

11

Defs.’ Reply to Pl’s. Resp. to Defs.’ Mot. Summ. J. (doc.47), Ex. 7 (Felts Dep.).

10

[of Labor].”12
On February 15, 2011, plaintiff filed the lawsuit now before the Court alleging claims of
sexual harassment and retaliation and violation of the Family and Medical Leave Act against the
Board and the commissioners. She filed an amended complaint on April 15, 2011. On July 28,
2011, the Court dismissed plaintiff’s claim of sexual harassment against separate defendant
Wallace. Plaintiff filed a second amended complaint on December 2, 2011, adding claims of
race discrimination and retaliation in connection with her suspension and termination in July and
August 2011. On July 13, 2012, defendants filed a motion for summary judgment.
Standard of Review
Summary judgment is appropriate when “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 judgment as a matter
of law.” Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must
demonstrate “an absence of evidence to support the non-moving party’s case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for
summary judgment, the non-moving party must “do more than simply show there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The non-moving party may not rest on mere allegations or denials of
her pleading but must “come forward with ‘specific facts showing that there is a genuine issue
for trial.’” Id. at 587 (quoting Fed.R.Civ.P. 56(e)).
“[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed

12

Defs.’ Mot. Summ. J. (doc. 31), Ex. 16 (Robinson Dep. at 82 and Dep. Ex. 27).

11

fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable
jury could return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49
F.3d 399, 401 (8th Cir. 1995). The inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587
(citations omitted). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are irrelevant or unnecessary will
not be counted.” Id.

Discussion
Plaintiff alleges claims of sexual harassment and retaliation under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §2000(e) et seq. and 42 U.S.C. §1983; retaliation and
interference in violation of the Family and Medical Leave Act; and violation of the Arkansas
Civil Rights Act (“ACRA”). Defendants move for summary judgment on the grounds that
plaintiff cannot establish race discrimination or retaliation under Title VII, § 1983, or the ACRA;
that plaintiff’s FMLA claim against the Board is barred by the doctrine of sovereign immunity;
that the statute of limitations bars her FMLA retaliation claim regarding the 2007 and 2008
promotions;13 and that her FMLA retaliation/interference claims against Felts are unsupported by
the evidence. Finally, defendants claim they are entitled to qualified immunity.

13

Plaintiff states in her response that the only failure to promote claims she is pursuing concern
the 2009 and 2010 Administrative Specialist 3 vacancies. See Pl’s. Br. in Opp. to Mot. Summ. J. (doc.
42) at 17 n.2.

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1. Suspension/Termination
Plaintiff claims Felts suspended and then terminated her because of her race. She also
claims her suspension and termination were in retaliation for filing charges of discrimination
with the EEOC, filing the federal lawsuit, and requesting medical leave. She brings these claims
pursuant to 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, the FMLA, and the
ACRA.14

In the absence of direct evidence, a plaintiff asserting a claim of discrimination under

Title VII has the initial burden of establishing a prima facie case. A plaintiff establishes a prima
facie case of race discrimination by showing that: (1) she is a member of a protected class; (2)
she was meeting the employer’s legitimate job expectations; (3) she suffered an adverse
employment action; and (4) she has facts that give rise to an inference of discrimination. Takele
v. Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009). A plaintiff may establish the fourth prong by
producing facts that similarly situated employees outside the protected class were treated
differently. Id. See also Gibson v. Am. Greetings Corp., 670 F.3d 844, 853-4 (8th Cir. 2012).
If the plaintiff establishes the elements of a prima facie case, then the employer has the
burden of producing a legitimate, non-discriminatory reason for the challenged employment
action. McDonnell Douglas Corp., 411 U.S. 792, 802 (1973). Once the employer satisfies its
burden of production, any rebuttable presumption of discrimination disappears, and the plaintiff
must prove that the proffered reasons are a pretext for discrimination. Id. The burden of proof
remains at all times with the plaintiff to establish that she was the victim of unlawful

14

The Eighth Circuit analyzes Title VII, § 1983, and ACRA claims under the same framework.
Humphries v. Pulaski County Special Sch. Dist., 580 F.3d 688, 692 n.3 (8th Cir. 2009).; Clegg v.
Arkansas Dept of Correction, 496 F.3d 922, 926 (8th Cir. 2007). FMLA retaliation claims are evaluated
under the McDonnell Douglas burden shifting framework as well. Wierman v. Casey’s General Stores,
638 F.3d 984, 999 (8th Cir. 2011).

13

discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Defendants argue plaintiff
cannot establish that she was meeting her employer’s legitimate job expectations, and that there
is no evidence that similarly situated employees outside her protected class were treated
differently.
Plaintiff says that Amber Baldwin, a white employee, who faced criminal charges for hot
checks, was treated more leniently than plaintiff. According to the evidence, Brownlee
suspended Baldwin in 2011 because of the charges but then allowed her to return when she paid
her fines, with the financial help of Wallace and Peacock. After Felts became chairman in July
2011, hot check warrants were issued against Baldwin, and when she did not take steps to
dispose of the charges, Felts terminated her in June 2012. Plaintiff argues Baldwin’s conduct
was far more egregious than hers and yet Felts’s initial action was to allow Baldwin to remain
employed.
The Court finds plaintiff fails to establish that she was meeting the legitimate job
expectations of her employer as the evidence is clear that her disrespectful and insubordinate
behavior violated Board policy. The Court also finds plaintiff fails to show that she was treated
differently than a white employee who engaged in the same conduct. Plaintiff herself
acknowledges that the conduct was not the same: she describes Baldwin’s offense as an ethical
violation while hers was insubordination. In Chappell v. Bilco Co., 675 F.3d 1110, 1119 (8th
Cir. 2012), the Eighth Circuit held that a plaintiff proves the fourth element of her prima facie
case by showing comparators are similarly situated in all respects. “To be similarly situated, the
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

14

circumstances.” Wierman v. Casey’s General Stores, 638 F.3d 984, 994 (8th Cir. 2011)(internal
citation and quotation omitted).
Even if the evidence establishes a prima facie case, plaintiff’s race discrimination claim
fails as a matter of law due to the lack of evidence of pretext. Defendants assert that plaintiff
was suspended and then terminated for insubordination. Plaintiff must discredit that assertion
and show that circumstances permit the reasonable inference that race was the real reason.
Plaintiff argues defendants’ reason is not credible because Felts deviated from Board policy by
requiring her, without prior notice, to submit her medical certification to her immediate
supervisor. Plaintiff also argues that the Board’s comparatively lenient treatment of Baldwin
raises an inference that the decision to terminate plaintiff was motivated by race.
The Court finds plaintiff fails to produce evidence that shows there is a genuine issue of
fact as to the legitimacy of the reason given by her employer for her termination.
Insubordination and violation of company policy are legitimate reasons for termination. Putnam
v. Unity Health System, 348 F.3d 732, 736 (8th Cir. 2003). The evidence shows that plaintiff’s
suspension was based upon her disrespectful and insubordinate attitude. Separate defendant
Felts terminated her after she attempted to turn in her medical certification to Gillerson after
Felts specifically told her to give it to Williams. Plaintiff argues that the employee manual does
not require an employee to submit her medical certification in support of an FMLA request to
her immediate supervisor. She complains that Felts changed the process. Regardless, the record
is clear that plaintiff was disrespectful and insubordinate in refusing to follow the directives of
Felt to give a copy of her documentation to Williams. In addition, plaintiff’s assertions of less
favorable treatment fail to establish a genuine issue of material fact as to pretext. The Court

15

finds plaintiff’s claim of race discrimination should be dismissed.
Plaintiff asserts her suspension and termination were in retaliation for filing two previous
charges of discrimination with the EEOC and for filing her present lawsuit. She also claims she
was suspended in retaliation for asserting her FMLA rights. In order to prove her claim, plaintiff
first must establish a prima facie case by showing that (1) she engaged in protected conduct, (2)
she was subjected to an adverse employment action, and (3) there is a causal connection between
the protected conduct and the adverse action. Tyler v. Univ. of Arkansas Bd. of Trustees, 628
F.3d 980, 985-86 (8th Cir. 2010). Even assuming plaintiff can establish a prima facie case,
defendants argue plaintiff offers no evidence that their stated reason for suspending and then
terminating plaintiff was pretextual.
The Court finds plaintiff fails to present evidence to show that her EEOC charges,
lawsuit, and FMLA request were a determining factor in Felts’s decision. For the same reasons
the Court finds Felts’s decision to suspend and terminate plaintiff’s employee was not a pretext
for race discrimination, the Court finds plaintiff fails to establish a genuine issue of fact that his
decision was retaliatory.
2. Denial of Promotion in October 2010
Plaintiff alleges she learned on October 14, 2010, that she was not selected for the
Administrative Specialist 3 position. Plaintiff claims defendants declined to award the position
to her in retaliation for filing the sexual harassment grievance in September 2010. She claims
she was more qualified than Jones because she had actual on-the-job experience. Defendants
argue plaintiff cannot establish an issue of fact as to whether there was a causal connection
between the filing of the grievance and not getting the promotion. They also assert there is no

16

evidence from which a reasonable jury could find that the Board’s legitimate, non-discriminatory
reason for awarding the position to Jones was a pretext for unlawful retaliation.
In proving a causal connection at the prima facie case phase of a retaliation claim,
the plaintiff must show that the protected conduct was a determinative - not
merely a motivating - factor in the employer’s adverse employment decision. If
the plaintiff succeeds, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the action. If the defendant does so, the plaintiff can
still prevail on a final step of the McDonnell Douglas analysis by proving, by a
preponderance of the evidence, that the reasons proffered by the employer are
merely pretext for discrimination.
Tyler, 628 F.3d at 985-6 (internal quotations and citations omitted).
Plaintiff filed a grievance on September 2, 2010, alleging Wallace sexually harassed her.
Two Board Commissioners, Carolyn Robinson and Joe Peacock, were on the four-person panel
that interviewed plaintiff and Jones for the Administrative Specialist 3 position on October 6,
2010. The full Board voted to award the position to Jones on October 15, 2010. Plaintiff argues
that Peacock is a friend of Wallace and Wallace was upset about plaintiff’s accusations against
him. She asserts that Peacock entered the interview process with a bias against her and that
Peacock admitted that plaintiff never had much of a chance with him. Plaintiff argues that
Peacock is the only member of the committee who said that she interviewed poorly and his bias
against her tainted the decision-making process. She said Tamara Salaam, another committee
member told her she recommended both plaintiff and Jones for the position. Melissa Haney
stated plaintiff’s interview went very well. Plaintiff asserts she was objectively more qualified for
the position because she had on-the-job experience, and the subjective reasons Robinson gave for
recommending Jones were too general to establish that Jones was the more qualified candidate.
Defendants argue that plaintiff’s allegation that Peacock tainted the interview panel

17

against her and did not recommend her for the position because he was upset with her for
accusing his friend of sexual harassment are sheer speculation. They assert that any bias Peacock
may have had against plaintiff was because of what he perceived as her poor work ethic. He
testified that when he would go by plaintiff’s desk, two or three times a day, she was never there,
and he never saw her do any work except her fix her fingernails and talk on the telephone. Ms.
Haney testified that she did not think plaintiff would be a good candidate for the position because
plaintiff is not a “self-starter” and her attitude toward people “is sometimes not as professional as
it should be.” Defendants argue the evidence establishes that all panel members supported Jones
being awarded the position.
Plaintiff’s argument that she was more qualified because she had on-the-job experience is
unpersuasive. In Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 793 (8th Cir. 2011),
the Eighth Circuit explained that the fact that a plaintiff “may have been capable of filling the
role of [the position], or that [s]he has specific strengths as a candidate, does not show pretext.”
Further, although plaintiff had worked at the Board for over four years and Jones for only two
years, it is undisputed that Jones had over twenty years of experience with another employer that
defendants considered very important. In addition, Haney, who had been working in the position,
felt that Jones was a self-starter and plaintiff was not. “To support a finding of pretext, [the
applicant] must show that the [employer] hired a less qualified applicant.” Torgerson v. City of
Rochester, 643 F.3d 1031, 1049 (8th Cir. 2011)(quotations omitted and emphasis in original). See
also Pierce v. Marsh, 859 F.2d 601, 604 (8th Cir.1988) (“The mere existence of comparable
qualifications between two applicants ... alone does not raise an inference of racial
discrimination.”).

18

The Court finds plaintiff fails to make a prima facie case because she does not establish a
causal connection between her complaint of sexual harassment and not being selected for the
position. Further, no reasonable jury could find that Jones was not at least as qualified for the
position as plaintiff. The Court further finds plaintiff fails to present evidence to show a genuine
issue of fact that defendants’ reason for choosing Jones over plaintiff was motivated by
retaliation.
3. Denial of Promotion in 2009 in Violation of the FMLA
Plaintiff alleges defendants denied her a promotion in 2009 in retaliation for filing a
complaint with the DOL over a FMLA request made in 2007.15 A FMLA claim of retaliation is
evaluated under the McDonnell Douglas framework. Wierman, 638 F.3d at 999. To establish a
prima facie case, plaintiff must show that she engaged in protected conduct, she suffered a
materially adverse employment action, and the materially adverse action was causally linked to
the protected conduct. Id. Plaintiff attempts to establish a causal connection between her FMLA
complaint and the Board’s decision to select Kordsmeier for the 2009 Administrative Specialist 3
vacancy. She argues that Robinson, who is on the Board’s hiring/personnel committee and
chaired it in 2009, had to have been aware of plaintiff’s FMLA complaint when she gave
Kordesmeier a much higher score than plaintiff. Defendant Robinson testified, as did all the other
commissioners except Brownlee, that she was unaware plaintiff had made a complaint regarding

15

In her response to defendants’ motion for summary judgment, plaintiff claims that defendant
Robinson failed to promote her on the basis of race. As defendants point out, plaintiff made no race
discrimination claim in her Second Amended Complaint regarding the 2009 Administrative Specialist
vacancy and did not mention race in her deposition when asked about why she felt she did not get the
promotion. To the extent plaintiff is making a claim of race discrimination in connection with the position
awarded to Kordesmeier in 2009, the Court finds plaintiff presents no evidence that defendants’ reasons
were a pretext for race discrimination.

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FMLA leave. Chairman Felts testified that Chairman Brownlee dealt with a lot of issues by
himself. Plaintiff submits no credible evidence that Robinson was aware of the 2007 FMLA
complaint.
Defendants state they selected Kordsmeier because she possessed two bachelor’s degrees,
including one in the field of Criminal Justice. She also had customer service and clerical work
experience. Plaintiff complains that the position does not require a college degree or college
course work. The Court find plaintiff has come forth with no credible evidence to support her
claim that her FMLA complaint in 2007 was a determining factor in defendants’ decision not
promote her in August 2009. See Barber, supra; Torgerson, supra.
4. FMLA Interference Claim
In addition to her claim that defendants retaliated against her for seeking FMLA leave,
plaintiff also alleges defendants “interfered with the exercise of her right to leave under the
FMLA.” Sec. Am. Comp., ¶ 41. She says she “performed every act required under the law to
assert her right to medical leave . . . [that] the FMLA does not require [her] to give her immediate
supervisor a Certification of Illness . . [and that] [s]he presented the required documentation to
Gillerson, but was rebuffed.” Id. Plaintiff argues that since she began working at the Board, she
followed the Board’s practice for seeking FMLA leave, which was to present a completed leave
form to her supervisor for his or her signature and then to take that form plus the completed
medical certification to Gillerson. She complains that when Williams and Felts insisted that
plaintiff provide Williams with her completed medical certification form as well as her request for
leave form for review, they were departing from previous Board practice. Plaintiff asserts she
had a good faith belief that Felts’s new policy was unlawful.

20

The FMLA makes it unlawful for an employer to “interfere with, restrain, or deny the
exercise of or the attempt to exercise” rights provided by the statute. 29 U.S.C. § 2615(a)(1).
An employee proceeding under an “interference” or “entitlement” claim16 has the initial burden of
proof to show that she was entitled to the benefit denied. Bellato v. Comcast Corp., 676 F.3d 768,
772 (8th Cir. 2012). Citing O’Reilly v. Rutgers, 2006 WL 141895 (D.N.J. Jan. 19, 2006) (upheld
223 Fed.Appx. 131, 2007 WL 1231708 (3rd Cir. 2007)), defendants argue the FMLA does not
give plaintiff the right to decide to whom to provide her medical certification. Because she
refused to provide the required documentation as directed, plaintiff was not entitled to FMLA
benefits.
In O’Reilly, the employee was willing to provide her medical certification to licensed
medical professionals at Rutgers University but not to her department supervisor or manager.
She was fearful that her confidential medical information might be wrongfully disclosed. Id. at
*6. When she did not submit her certification as directed, she was fired. The issue before the
court was “whether an employee claiming FMLA leave can dictate which individuals within her
company may review the medical certification for supporting her claim of leave.” Id. at *1. The
court said:
Section 2613(a) of the FMLA authorizes employers to require that requests for
leave be supported by a certification but does not specify who within the
employing organization is authorized to request and review such a certification. In
fact, the term ‘employer,’ as defined by the FMLA, ‘means any person engaged in
commerce ... includ[ing] any person who acts, directly or indirectly, in the interest
of an employer to any of the employees of such employer.’ 29 U.S.C.A. § 2611
16

In Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012), the court
describes an “entitlement” claim as one where an employee asserts the denial of a benefit to which she is
entitled under the statute. The court described the other two types of claims as retaliation and
discrimination. See also Bone v. G4S Youth Servs., LLC, 686 F.3d 948 (8th Cir. 2012) (FMLA authorizes
two types of claims: interference and retaliation).

21

(emphasis added). This definition may certainly encompass departmental managers
and supervisors who function in an administrative capacity, as well as individuals
in an office of employee relations or human resources. See, e.g., Cash v. Smith,
231 F.3d 1301, 1303-04 (11th Cir.2000) (print shop supervisor in the graphics
department of power company was responsible for processing FMLA paperwork
in order to determine whether employee qualified for FMLA leave); Dodge v.
Trustees of the National Gallery of Art, 326 F.Supp.2d 1, 6 (D.D.C.2004) (gallery
policy provided that employee's immediate supervisor was the primary and initial
contact for employees requesting FMLA leave).
Id. at *4.
Plaintiff asserts her case is distinguishable because O’Reilly was terminated because her
leave had run out, not because she refused to provide her medical certification to her employer.
Further, plaintiff argues O’Reilly was terminated after the time for submitting her medical
certification had lapsed but plaintiff was fired eight days before a similar deadline, and the two
cases involved different levels of supervision, i.e. plaintiff offered to give her certification to
Felts, Williams’s direct supervisor whereas O’Reilly was unwilling to provide her certification to
her department head, who was not her immediate supervisor. Plaintiff also argues that whether
Felts could require her to give her certification personally to Williams is not relevant; the issue is
whether defendants interfered with her FMLA rights by terminating her before the deadline for
presenting her certification to Williams..17
The evidence reflects that on July 27, 2011, Williams notified plaintiff that she had fifteen
days to provide her medical certification to him.18 By letter dated August 3, 2011, Felts told
plaintiff she had until August 12, 2012, to submit the certification to Williams.19 On August 4,

17

Pl’s. Br. in Supp. of Resp. to Mot. Summ. J. (doc. 42) at 20.

18

Defs.’ Mot. Summ. J. (doc. 32), Ex. 16 (Robinson Dep. at 81 and Dep., Ex. 21).

19

Id., Robinson Dep. Ex. 23.

22

2011, plaintiff attempted to give the certification to Gillerson in direct defiance of Felts’s
directive to give it to Williams. Plaintiff was terminated for defying Felts’ directive to submit the
certification to Williams.
“Interference with FMLA rights includes ‘manipulation by a covered employer to avoid
responsibilities under FMLA. Although an employee ‘can prove interference with a FMLA right
regardless of the employer’s intent,’ the FMLA ‘is not a strict-liability statute.’” Chappell, 675
F.3d at 1114 (internal citations omitted). “[A]n employer who ‘interferes with an employee’s
FMLA rights will not be liable if the employer can prove it would have made the same decision
had the employee not exercised the employee’s FMLA rights.’” Estrada v. Cypress
Semiconductor (Minnesota) Inc., 616 F.3d 866, 870 (8th Cir. 2010). However, “[a]n employee
who requests FMLA leave has no greater protection against termination for reasons unrelated to
the FMLA than she did before taking the leave.” Id. at 871. “If the employer can prove that it
would have terminated the employee had the employee not exercised FMLA rights, the employer
will not be liable.” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir.2012).
The Court finds plaintiff fails to establish a genuine issue of material fact that Felts
unlawfully interfered with her rights under the FMLA. The Court finds the O’Reilly decision
persuasive regarding the legality of Felts’s policy that all FMLA documentation initially be
presented to the employee’s direct supervisor. The Court finds plaintiff fails to submit evidence
that she was entitled to FMLA benefits. There is no factual dispute that in spite of repeatedly
being told to submit the medical certification to Williams, plaintiff attempted to give it to
Gillerson, and that plaintiff was terminated for insubordination.
Conclusion

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IT IS THEREFORE ORDERED that defendants’ motion for summary judgment [docket
entry 31] be and is hereby granted. Judgment will be entered for defendants.
DATED this 29TH day of October, 2012.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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