Eau Claire v. Home Depot USA Inc

Filing 53

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Defendants Motion for Summary Judgment (Dkt. 45 ) is GRANTED and Judgment shall be entered in favor of Defendants on all claims. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KEN EAU CLAIRE,
Plaintiff,

Case No. 1:15-CV-00084-EJL-CWD
MEMORANDUM DECISION AND
ORDER

v.
HOME DEPOT U.S.A., INC., THD
AT –HOME SERVICES, INC., and
DOES 1-10,
Defendants.

Pending before the Court in the above entitled matter is Home Depot U.S.A., Inc.
and THD At-Home Services, Inc.’s (THD) (collectively Defendants) Motion for
Summary Judgment. Dkt. 45. The matter is fully briefed and ripe for the Court’s
consideration.1
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest
of avoiding further delay, and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument, this matter shall be decided on
the record before this Court without oral argument.
1

Plaintiff argues the Motion for Summary Judgment should be denied based on Defendants failure to file a separate
statement of material facts as required by Dist. Idaho Loc. Civ. R. 7.1. This argument is not persuasive to the Court.
The purpose of allowing a separate statement of facts is to allow a party a full twenty (20) pages for its legal
arguments. Here, Defendants combined both their statement of facts and legal argument within the twenty (20) page
limit. This is not the sort of violation of the Local Rules to justify denying the motion. Rather, the motion shall be
decided on its merits.
MEMORANDUM DECISION AND ORDER - 1

FACTUAL BACKGROUND
Plaintiff Ken Eau Claire was employed as the Selling Sales Manager (SSM) for
the Boise area’s five Home Depot stores. Plaintiff maintains his employer was Defendant
Home Depot U.S.A., but has not provided any evidence that establishes this fact. Rather,
THD acknowledged in its Answer to the Complaint that Eau Claire’s employer was THD,
not Home Depot U.S.A. The Amended Complaint names both Home Depot U.S.A. and
THD as defendants. Dkt. 40.
On March 26, 2012, Eau Claire was hired by THD to sell siding, roofing,
windows, etc. to Home Depot customers. A Home Depot customer requests information
about such contract services and then a SSM or Sales Consultant working under a SSM
makes an appointment to meet with the customer to prepare and estimate and try to close
the sale on such services. Eau Claire reported to the Branch Sales Manager, Michael
Snyder. As SSM, there were times when Eau Claire had Sales Consultants work under
him in which case he would be entitled to a portion of the sales generated by the Sales
Consultants that worked under him.
It is undisputed that selling home repair/replacement contract services is a highly
competitive market in the Boise area.
Eau Claire admits he suffered from vertigo since 2010. In September of 2014, Eau
Claire experienced a fall while standing in a parking lot. On October 7, 2014, Eau Clare
called Human Resources at a 1-800 number to inform them he had seen a doctor for his
vertigo symptoms and the doctor recommended he avoid driving, climbing ladders and
MEMORANDUM DECISION AND ORDER - 2

other activities required in his job. Eau Claire indicated he had a referral appointment to
another doctor for October 22nd, but that he had not made the appointment yet. The
Human Resources person on the phone provided Eau Claire with other 1-800 numbers
and indicated that paperwork would be sent to him to complete. Eau Claire maintains that
when he called he was not asking for time off work and it was Human Resources that
determined he should be off work for one month.2 The one month of leave was pursuant
to the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.
Prior to taking FMLA leave, Eau Claire had been disciplined three times for poor
close rates on sales. A close rate is the percentage of customer service appointments that
result in actual sales. THD had provided coaching for Eau Claire in June and July of 2014
to improve his close rates. On September 5, 2014, Eau Claire received a Final Counseling
Notice for his low sales.
At the time Eau Claire was told he was being placed on FMLA leave for a month,
he was the only THD sales representative in the Boise area. He did not have any Sales
Consultants working under him at the time nor did he have anyone to cover his scheduled
customer appointments for the next thirty days. Eau Claire called THD’s Call Center and
spoke with Antonio Lewis. Eau Claire informed Lewis he was going on a leave of
absence and asked Mr. Lewis to cancel all of his appointments for the next 30 days and

2

Plaintiff maintains he was not asking for time off work, but based on the nature of his sales
work he needed to drive to appointments and climb ladders to provide estimates so it is
reasonable that his employer would determine time off was appropriate for the employee’s safety
as well as the community’s safety.
MEMORANDUM DECISION AND ORDER - 3

reschedule them for after his return. Because Eau Claire was a SSM he had the requisite
authority to instruct Mr. Lewis to make the requested changes to the appointment
calendar.3
Eau Claire maintains he took this action of canceling all his appointments because
there was no one to cover for him and THD had not sent sales consultants to help cover
his area in the past. Eau Claire does not deny he did not notify his supervisor before
canceling all the appointments nor did he discuss a plan for coverage with his supervisor.
Eau Claire states there was no written policy on what an employee should do when he is
put on FMLA leave, so his actions were not violations of any THD policy.
Eau Claire acknowledged in his deposition that canceling appointments and even
rescheduling appointments at least 30 days out, was not good customer service and could
result in lost sales opportunities.
Upon receiving email notification of Eau Claire’s leave from the Human
Resources department at approximately 1:00 p.m. on October 7, 2014, Branch Sales
Manager Snyder, began working on finding coverage for Plaintiff’s customer
appointments. Snyder called up Eau Claire’s calendar of appointments on his computer.
He took a screen shot of the appointments and took steps to set up coverage for the

3

Eau Claire does not remember exactly what he told Mr. Lewis. But Plaintiff’s failure to
remember does not create a genuine issue of material fact since Mr. Lewis’ testimony is
undisputed that he was instructed to cancel all appointments and if possible reschedule them for
30 days later when Plaintiff was scheduled to return to work.

MEMORANDUM DECISION AND ORDER - 4

appointments by Sales Consultant David Wright who worked in the Portland market
under SSM Al Hackett.
When Snyder logged back on to discuss the calendar with another employee on
October 8th, the appointments were gone from the computer system (apparently this
occurred after Eau Claire’s call to the Call Center). Snyder scrambled to try to recreate
Eau Claire’s calendar of appointments based on his screen shot of the earlier calendar and
scheduled another SSM or Sales Consultant to attempt to reschedule appointments with
customers. Sales Consultant David Wright, from another market area, was able to recover
some of the appointments, but most of the appointments were lost. Snyder considered
Eau Claire cancellation of all his appointments for the next thirty (30) days a major work
violation of THD’s customer service policy. Snyder believed the cancelled
appointments had resulted in lost sales as well as some damage to Home Depot’s
reputation for excellent customer service.
It is undisputed that pursuant to the Employee Handbook, customer service is the
number one priority for all employees. Dkt. 48-18. Eau Claire maintains a customer
service violation can be either a major or minor violation depending on the conduct.
“Major violations are those behaviors that are so serious in nature that they typically
warrant immediate termination upon the first offense; however, a final warning may be
appropriate depending on the circumstances and behavior at issue.” Id. Minor violations
are those behaviors that although not permitted, are generally addressed through the
progressive disciplinary process which is a four step process of coaching, counseling,
MEMORANDUM DECISION AND ORDER - 5

final warning and termination. Id. The Employee Handbook also states “[m]anagers have
the discretion to determine what other behaviors are violations, and what discipline is
appropriate.” Id.
Snyder determined that based on the violation of Home Depot’s policy on
customer service, Eau Claire should be immediately terminated for
cancelling/rescheduling all his appointments. Snyder was advised by Human Resources
Manager Sharon Lewis that Plaintiff could not be terminated while he was on FMLA
leave because she needed to complete an investigation regarding Snyder’s allegation of a
violation of the customer service policy and this could not be completed until Eau Claire
returned to work and could be interviewed. When Plaintiff returned to work, Ms. Lewis
investigated Snyder’s concerns by reviewing documents related to the customer
appointments and interviewing employees that included Snyder, Eau Claire and Antonio
Lewis.
Eau Claire called to return to work on November 7, 2014. He was returned to
active status on November 8, 2014, but he was informed THD needed a release from his
doctor to return to work. A release from Eau Claire’s doctor dated November 10, 2014
was faxed to THD November 17, 2014. Eau Claire began working again on or about
November 18, 2014.
Eau Claire returned to his same position as SSM and his compensation was the
same as before he went on leave. Eau Claire maintains his computer access was not the
same when he returned. He claims he had Sales Consultant access, but did not have SSM
MEMORANDUM DECISION AND ORDER - 6

access to the calendar. THD acknowledges based on the Eau Claire’s unilateral canceling
of his customer’s appointments when he went on leave, his computer access was limited
to a Sales Consultant access which still allowed Eau Claire to enter and manage his
customer appointments onto the system. Since Eau Claire did not have any Sales
Consultants working under him when he left or when he returned, THD maintains his
limited computer access did not impact his ability to fulfill his job duties. Eau Claire
maintains his computer access restricted him from acting as a SSM but does not explain
why since he also admits he had no Sales Consultants under him.
At the time Eau Claire returned to work, SSM Hackett out of Portland was still
assigned as the manager and there was still a Sales Consultant from another market
working under Hackett to cover appointments. Snyder also maintains Plaintiff’s access
was restricted to Sales Consultant access because SSM Hackett had sales manager access
as he was still supervising the sales consultant brought on to cover appointments while
Plaintiff was on leave.
Eau Claire does not deny he unilaterally asked the IT department to return his
manager access and to put Hackett’s Sales Consultant under him so that he could receive
compensation for the Sales Consultant’s sales. This action was brought to Snyder’s
attention when Hackett complained of the change in supervision for his Sales Consultant.
It appears from the record, that Eau Claire may have requested IT to change the access
more than once without consulting his supervisor. Snyder copied Eau Claire in an email
dated November 18, 2014, that directed IT to restore Eau Claire’s manager access on the
MEMORANDUM DECISION AND ORDER - 7

computer. Snyder also claims there were IT issues out of his control that delayed
restoring manager access to Plaintiff.
Eau Claire disputes some of the information compiled on a spreadsheet regarding
the canceled appointments. Ms. Lewis indicated she did not consider the disputed
“outcomes” of the appointments in making her recommendation for termination of Eau
Claire. On December 15, 2014, Eau Claire was terminated.
On March 1, 2015, Eau Claire filed his Complaint alleging a violation of the
FMLA. Eau Claire maintains that he was not returned to his pre-leave position and was
terminated for taking leave. Plaintiff seeks compensatory and declaratory damages under
the FMLA. Defendants move for summary judgment arguing Eau Claire was not denied
FMLA leave, was re-instated to his pre-leave position when he returned and he was
ultimately terminated for workplace violations – not for taking FMLA leave.

STANDARD OF REVIEW
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “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). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
MEMORANDUM DECISION AND ORDER - 8

unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the
outcome of the case. See id. at 248.
The moving party is entitled to summary judgment if that party shows that each
issue of material fact is not or cannot be disputed. To show the material facts are not in
dispute, a party may cite to particular parts of materials in the record, or show that the
materials cited do not establish the presence of a genuine dispute, or that the adverse
party is unable to produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider “the
cited materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

MEMORANDUM DECISION AND ORDER - 9

The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted).
Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving
party “if the motion and supporting materials–including the facts considered undisputed–
show that the movant is entitled to it.” The existence of a scintilla of evidence in support
of the non-moving party’s position is insufficient. Rather, “there must be evidence on
which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty
Lobby, 477 U.S. at 252.

ANALYSIS
1. The FMLA In General
The FMLA guarantees that an employee taking medical leave will not result in a
loss of job security or in other adverse employment actions. “[T]he FMLA creates two
interrelated, substantive employee rights: first, the employee has a right to use a certain
amount of leave for protected reasons, and second, the employee has a right to return to
his or her job or an equivalent job after using protected leave.” Bachelder v. Am. W.
Airlines, Inc., 259 F.3d 112, 1122 (9th Cir. 2001); 29 U.S.C. § 2615(a). The case law has
developed two theories of recovery under § 2615: the retaliation or discrimination claim

MEMORANDUM DECISION AND ORDER - 10

and the entitlement or interference claim. Xin Liu v. Amway Corp., 347 F.3d 1125, 1133
& n. 7 (9th Cir. 2003).
The retaliation or discrimination claim is where an employer denies requested
FMLA leave or terminates an employee for requesting FMLA leave. 29 U.S.C.
§ 2615(a)(2). The Ninth Circuit has determined the burden shifting analysis model from
McDonnell Douglas v. Green, 411U.S. 792 (1973) applies to a discrimination or
retaliation claim. While Plaintiff alleges in his Complaint THD “retaliated” against him,
he has technically not brought a retaliation or discrimination claim under the FMLA. This
is because THD granted FMLA leave to Eau Claire and he was not terminated due to
asking for leave. He was indirectly asking for leave by calling the 1-800 Human
Resources number and sharing his doctor recommendations that clearly impacted his
ability to complete his job duties. It was at that point he was informed he would be placed
on FMLA leave for one month based on his medical condition and doctor’s
recommendation regarding Eau Claire’s work limitations. “The anti-retaliation or antidiscrimination provisions do not cover visiting negative consequences on an employee
simply because [he] has used FMLA leave.” Bachelder at 1124.
Instead, Eau Claire’s claim is an entitlement or interference claim pursuant to
§ 2615(a)(1). It is “unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise” the substantive rights guaranteed by the FMLA.
29 U.S.C. § 2615(a)(1). The right of reinstatement is the linchpin of the entitlement
theory. Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011). This is because the
MEMORANDUM DECISION AND ORDER - 11

FMLA provides leave with the understanding and expectation that the employee will
return to work when the leave ends. Id. (citations omitted). The Ninth Circuit, unlike
some of the other circuits, has determined that the burden shifting framework of
McDonnell Douglas does not apply to entitlement or interference claims under the
FMLA. Id. Therefore, any argument that the employer’s reasons for adverse employment
action based on “pretext” are not part of the analysis of the claim for purposes of
summary judgment.
The relevant regulations explain that an interference claim prohibits an employer’s
consideration of and employee’s use of FMLA leave in making adverse employment
decisions. Bachelder at 1122; 29 CFR § 825.220(c). Otherwise, employees would not
take leave in fear of being fired or otherwise disciplined.
“To state an prima facie interference claim, an employee must show “(1) he was
eligible for the FMLA’s protections, (2) his employer was covered by the FMLA, (3) he
was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to
take leave, and (5) his employer denied him FMLA benefits to which is was entitled.”
Bachelder at 1124.
In this case, the first four elements are not disputed. The legal questions relate to
the fifth element: did THD deny Eau Claire his reinstatement benefit and/or did THD use
the FMLA leave as a negative factor in his termination. Stated another way, the employee
has to prove by a preponderance of the evidence that the employer did not reinstate the
employee to his or her job or an equivalent job and/or that the taking of the FMLA
MEMORANDUM DECISION AND ORDER - 12

protected-leave constituted a negative factor in the decision to terminate the employee.
“[An employee] can prove this claim, as one might any ordinary statutory claim, by using
direct or circumstantial evidence, or both.” Id. (citing Bachelder, 259 F.3d at 1125).
“[T]he employer’s intent is not a relevant part of the entitlement inquiry. Id. (citing Xin
Liu, 347 F.3d 1135; Bachelder, 259 F.3d at 1120).
The statutory right to reinstatement is not without limits. Id. “Nothing in this
section shall be construed to entitle any restored employee to ... any right, benefit, or
position to which the employee would have been entitled had the employee not taken the
leave.” 29 U.S.C. § 2614(a)(3)(B). “Although the FMLA generally confers the right to
reinstatement, an employer may still terminate an employee during her leave if the
employer would have made the same decision had the employee not taken leave.”
Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1097 (9th Cir. 2007). “[A]n employer
is not required to cease pursuing a disciplinary course of action against an employee that
began before that employee took FMLA leave, simply because that employee took
leave.” Swan v. Bank of Am., 360 Fed. Appx. 903, 906 (9th Cir. 2009).

2. Who was the Employer of Plaintiff?
Defendants maintain that Home Depot U.S.A. was not Plaintiff’s employer and
that it is a separate legal entity responsible for hiring employees for Home Depot stores.
Defendants argue Plaintiff was an employee of THD which is a different legal entity
responsible for hiring employees related to the selling the contract services and
MEMORANDUM DECISION AND ORDER - 13

supervising installation of the contract services. Plaintiff directs the Court to the job
application and other documents that reference Home Depot U.S.A.
The Court finds while certain employment documents do cite Home Depot U.S.A.,
Defendants have established two different legal entities exist. Plaintiff has failed to
establish joint employer liability for Home Depot U.S.A. See Moreauv. Air France, 356
F.3d 342, 950 (9th Cir. 2003). Accordingly, for purposes of this litigation, the Court
finds as a matter of law THD was Eau Claire’s employer and the claims against Home
Depot U.S.A. must be dismissed.

3. Was Eau Claire Reinstated to His Same Position or an Equivalent Job?
Eau Claire claims he was not reinstated to the same SSM position as he was
delayed from returning to work after the 30 days of FMLA leave was completed, his
computer access was restricted, he was not included in manager meetings, and he was not
allow compensation for the Sales Consultant that still was covering appointments when
he returned to work. THD claims he was returned to the same position at the same pay
and while his computer access was temporarily restricted, such restriction did not keep
him from doing his sales job of customer appointments and closing sales. THD argues the
delay in returning to work was not THD’s but Plaintiff’s since he was advised he needed
to provide a letter from his doctor authorizing his return to work and such documentation
was not received until November 17, 2014. Finally, THD argues Eau Claire was not
entitled to compensation for the covering Sales Consultant as that Sales Consultant
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reported to SSM Hackett. Eau Claire does not dispute before he went on leave he did not
have any Sales Consultants working under him that generated compensation payable to
him.
First, under the applicable regulations, an employer may require medical
certification that the employee is “fit for duty: before allowing the employee to return to
work. See 29 CFR § 825.310(a). Therefore, the fact that Eau Claire claims he was
temporarily delayed returning to work does not rise to the level of an interference with
his right to reinstatement since it is undisputed after receiving the medical release
Plaintiff starting working again.
Second, the Court finds there are no genuine issues of material fact to support Eau
Claire’s claim he was not reinstated to the same position and the same compensation he
had before he took FMLA leave. While computer access issues existed, his job was the
equivalent of his job when he left. He was responsible for scheduling customer
appointments and selling contract services provided by THD in the Boise area. Nothing
kept him from using the computer access he initially had upon his return to complete
these job duties. Eau Claire did not have a Sales Consultant under him when he left and
he did not have one under him to manage when he returned so the lack of SSM computer
access for a short period of time has not been shown to result in Eau Claire being
anything but an SSM when he returned to work. The Court finds Eau Claire’s unilateral
adjustment of his computer access through the IT department also corroborates and
establishes he had SSM authority when he returned to work. Plaintiff’s complaints about
MEMORANDUM DECISION AND ORDER - 15

computer access and missing a manager meeting do not change the fact the job he
returned to was at a minimum an equivalent job to his job before he went on FMLA
leave.
For these reasons, the Court finds there is not a genuine issue of material fact
related to this claim and as a matter of law the Plaintiff’s claim he was denied
reinstatement to his pre-leave job is without merit. The undisputed facts of this case
establish that Plaintiff was reinstated to his same position with the same compensation
and/or he returned to an equivalent job. Therefore, this claim must be dismissed.

4. Was Eau Claire’s Taking FMLA Leave a Factor in His Termination?
Plaintiff argues that he has established genuine issues of material fact regarding
whether or not his FMLA leave was a factor in his termination. The Court respectfully
disagrees. There is nothing in the record submitted that supports a finding that Snyder or
Ms. Lewis made the decision to terminate Plaintiff because he took FMLA leave. Neither
of these persons were involved in the decision to grant FMLA leave as Plaintiff admitted
this decision was made by the Human Resources person who answered the 1800 call.
There are no statements or other evidence that Snyder made the decision to terminate Eau
Claire based on the fact Eau Claire had qualified for FMLA leave.
The record is clear and undisputed that Snyder sought to terminate Eau Claire
based on Plaintiff’s unilateral decision to cancel all his customer appointments and to
reschedule them for 30 days out. Snyder considered this a major violation of the customer
MEMORANDUM DECISION AND ORDER - 16

service policy of THD. Moreover, Eau Claire does not dispute that he unilaterally asked
the Call Center to cancel the appointments and that his actions may have negatively
impacted the customer service provided to the scheduled customers and probably led to
lost sales. Eau Claire argues instead that such a customer service violation need not be a
major violation. Rather, Plaintiff maintains his actions could be a minor violation under
the Employee Handbook and he disputes some of the information compiled regarding the
cancelled appointments is disputed.
The alleged customer service violation was investigated by Ms. Lewis and she did
not complete her investigation until she had the opportunity to review the spreadsheet of
appointments and interview Plaintiff and other employees. She determined that a work
violation had occurred and that termination of Plaintiff’s employment was justified based
on the nature of the customer service violation. This decision to terminate Plaintiff was
not made until approximately a month after Plaintiff was cleared to work again. Nothing
in the testimony or exhibits indicate that the FMLA leave taken by Eau Claire was in any
way a factor or consideration in Ms. Lewis’ recommendation to terminate Eau Claire.
Eau Claire seeks to make his interpretation of the Employee Handbook a genuine
issue of material fact to avoid summary judgement being granted. However, the express
language of the Employee Handbook establishes that customer service is the top priority
for all employees and that it is ultimately left to the manager’s discretion to determine if a
work violation is a major or minor violation. Here Snyder consulted with the Human
Resources department and only after an investigation into the undisputed customer
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violation was investigated was the final decision made to terminate Plaintiff. Snyder was
consistent from the time he discovered the unilateral cancellation of appointments that his
decision to terminate Plaintiff was based on the cancellation of customer appointments.
This is true even though Eau Claire had received a Final Notice for other work
performance issues in September of 2014.
Plaintiff argues there was not a policy on how to arrange coverage when going on
leave so the manner in which he decided to cancel appointments cannot have been a work
violation. This argument is not persuasive and does not create a genuine issue of material
fact as the Employee Handbook allows a manager discretion to determine if conduct rises
to a major or minor work place violation.
Plaintiff next argues that Snyder’s reasons for terminating him were pretext for
Eau Claire taking FMLA leave. As discussed earlier, the burden shifting analysis which
includes pretext does not apply to an interference claim. Plaintiff has to prove by direct or
circumstantial evidence his taking of FMLA leave was a factor in his termination.
Further, employer intent is not relevant. Bachelder, 259 F.3d at 1120. Speculation on the
part of Plaintiff is insufficient circumstantial evidence when the record is void of
testimony or exhibits that indicate the FMLA leave was a factor in the termination
decision by Snyder and Ms. Lewis.
As discussed earlier, the FMLA does not prevent an employer from terminating an
employee if the employer would have made the same decision had the employee not
taken leave. Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1097 (9th Cir. 2007).
MEMORANDUM DECISION AND ORDER - 18

Here, the undisputed facts establish the employee was terminated for conduct unrelated to
his medical leave. He was terminated due to poor customer service based on his
independent decision to have the Call Center cancel or reschedule all his appointments.
The poor customer service in an admitted competitive market is the business reason for
the termination. There has been no evidence presented to support Eau Claire’s claim his
medical leave was a factor in his termination. It was his actions as he started his leave,
which he considered proper, but which his manager did not, that caused his termination
for a major work violation.

5. Conclusion
The Court finds there are no genuine issues of material fact that prevent the
motion for summary judgment from being granted on the interference claim. While
Plaintiff disputes the some of the specific facts, he does not dispute the material fact that
his act of cancelling customer appointments was a violation of the customer service
policies of his employer. There is simply no evidence to support he did not have the same
or an equivalent job when he returned or that his employer factored in his taking of
FMLA leave in its decision to terminate his employment. For these reasons, the Court
finds Defendants’ Motion for Summary Judgment should be granted on all counts in the
Complaint.

MEMORANDUM DECISION AND ORDER - 19

ORDER
IT IS ORDERED:
1. Defendants’ Motion for Summary Judgment (Dkt. 45) is GRANTED and
Judgment shall be entered in favor of Defendants on all claims.

DATED: February 3, 2017

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER - 20