Roys v. Upper Iowa University

Filing 30

ORDER: Denying 27 Motion to Strike: Denying as Moot 29 Motion in Limine: Granting 17 Motion for Summary Judgment: Judgment should be entered in favor of Defendant Upper Iowa University. Signed by Magistrate Judge Kelly Mahoney on 08/17/17. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
CAROLYN ROYS,
Plaintiff,

No. 16-CV-2046-KEM

vs.

ORDER

UPPER IOWA UNIVERSITY,
Defendant.
__________________________
A few months after becoming sick and taking time off under the Family Medical
Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, Plaintiff Carolyn Roys was fired by her
employer, Defendant Upper Iowa University (the University). She initiated this lawsuit,
bringing FMLA claims of entitlement (Count I) and discrimination (Count II).1 The
University now moves for summary judgment on both of Roys’ claims. Doc. 17. Roys
concedes that the University is entitled to summary judgment on her entitlement claim
but resists the motion with respect to her discrimination claim. Doc. 24. I grant the
motion (Doc. 17). I also deny Roys’ related motion to strike (Doc. 27) and deny the
University’s motion in limine (Doc. 29).

1

The parties refer to these claims as interference and retaliation claims, which is the language
many Eighth Circuit cases used before the court clarified the three types of FMLA claims that
arise under 29 U.S.C. § 2615(a). See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d
996, 1005-06 (8th Cir. 2012). I use the post-Pulczinski language.

I.

BACKGROUND

The following facts are recited in the light most favorable to Roys, the nonmoving
party. Roys began working for the University in October 2010. Def. SOF ¶ 1; Pl. Resp.
SOF ¶ 1.2 In October 2014, she was promoted to Director of Academic Success, which
was the position she held upon her termination. Def. SOF ¶ 3; Pl. Resp. SOF ¶ 1. When
Roys was promoted, her previous position was not replaced, and she kept some of the
duties she had held previously—including sending out emails and letters for the Academic
Review Committee (ARC) program and serving as the liaison between the University and
the Federal Bureau of Investigation (FBI) when the FBI was conducting background
checks of students.3 Def. App. 45. As the Director of Academic Success, Roys also
advised students and monitored at-risk students as part of the “Support Our Students”
(SOS) program. Def. App. 45, 47-48. At first, Roys was a one-person department,
although the previous Director of Academic Success had supervised two employees (one

2

“Def. SOF” refers to Defendant University’s Statement of Facts located at Doc. 17-2. “Pl.
Resp. SOF” refers to Plaintiff Roys’ Response to Defendant University’s Statement of Facts
located at Doc. 24-1. “Pl. SOF” refers to Plaintiff Roys’ Statement of Facts located at Doc. 242. “Def. Resp. SOF” refers to Defendant University’s Response to Plaintiff Roys’ Statement of
Facts located at Doc. 25-1. “Def. App.” refers to Defendant University’s Appendix located at
Doc. 17-3, “Def. Supp. App.” refers to Defendant University’s Supplemental Appendix located
at Doc. 25-2, and “Pl. App.” refers to Plaintiff Roys’ Appendix located at Doc. 24-4.

3

Roys testified at her deposition, in response to the question “What duties did you continue to
have from your [previous] position?,” that she “continued to be the liaison for, like, FBI
inquiries about . . . background checks for students, if they were applying for jobs, things like
that.” Def. App. 45. In her affidavit submitted as an exhibit to her resistance for summary
judgment, however, she stated that Louise Scott, her boss, “indicated that she would take over
the duties of responding to FBI inquiries” upon Roys’ promotion, and Roys suggested those
duties were “part of [Scott’s] position.” Pl. App. 85 ¶ 41. Roys cannot create a genuine dispute
of material fact for purposes of summary judgment based solely on an affidavit that directly
contradicts her earlier, unambiguous deposition testimony. See Camfield Tires, Inc. v. Michelin
Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983).

2

of which was Roys) who could assist with some of the functions of the position. Pl. App.
34, 76 ¶ 7. Eventually, a retention specialist position was created to give Roys some
help with the SOS and ARC programs. Pl. App. 78 ¶ 13. That position was filled by
Deena Serra, who worked with Roys for six months before leaving the University in May
(prior to Roys taking FMLA leave). Pl. App. 64, 78 ¶¶ 13-14.4
Another employee, Jean Merkle, served as co-chair of the SOS program along
with Roys. Pl. App. 80 ¶ 22. The SOS program involved an automated system that
faculty members or others could use to send an alert when they were concerned about a
student. Def. App. 47. Merkle and Roys would receive the alert and notify the SOS
committee of the problem. Id. The SOS committee would consider the issue, and then
one of the committee members would be responsible for reaching out to the student. Pl.
App. 76-77 ¶ 8; Def. App. 38, 47.
On May 8, 2015, Roys had surgery on a perirectal abscess that left her temporarily
unable to work. Def. SOF ¶¶ 4-5; Pl. Resp. SOF ¶¶ 1-2. On May 21, 2015, she signed
a form requesting “[f]ull [d]ay” FMLA leave from May 8, 2015, to an unknown date in
the future. Def. App. 97-98. Her FMLA leave was approved on June 4, 2015. Id.
Denise Ney, the benefits manager for the University, gave Roys a form outlining her
FMLA rights, indicating that Roys would be required to use all available paid leave
concurrently with leave taken under the FMLA and that she was entitled “to 12 weeks of
unpaid leave in a 12-month period calculated as . . . a ‘rolling’ 12-month period measured
backward from the date of any FMLA leave usage.”5 Def. App. 21-22.

4

The parties clarified at oral argument that Serra left before Roys took FMLA leave.

5

Under this method for calculating the 12-month period for purposes of FMLA leave (authorized
by the regulations), “each time an employee takes FMLA leave[,] the remaining leave entitlement
would be any balance of the 12 weeks which has not been used during the immediately preceding
12 months.” 29 C.F.R. § 825.200(c). Under the “rolling” method, an employee will never be

3

On July 20, 2015, Louise Scott, Roys’ boss, sent an email to Roys, reminding
her that she would run out of covered time off under the FMLA at the end of the month
and instructing her “to have a serious conversation with [her] current [medical] provider
as to when [she] can return to work.” Pl. App. 54. Shortly thereafter, on July 27, 2015,
Roys returned to work. Def. SOF ¶ 7; Pl. Resp. SOF ¶ 1. Ney sent Roys a letter dated
August 24, 2015, stating that she “ha[d] exhausted 448 hours of FMLA leave out of a
maximum of 480 hours” and that she had “32 hours of FMLA hours to use from now
until May 7, 2016.” Def. App. 28.
While Roys was on FMLA leave, the vacant retention specialist position
previously held by Serra was transferred to another department, and it was “not replaced”
in Roys’ department. Pl. App. 64, 78 ¶¶ 13-14. The retention specialist position had
not been filled as of October 13, 2015. Pl. App. 64. It is not clear whether it was filled
at the time of Roys’ termination—at oral argument, Roys’ counsel stated that he believed
it had been filled but pointed to no evidence of that fact, and the University’s counsel was
unsure. It was planned that the retention specialist, once hired, would still assist Roys
with the SOS program, despite working in another department: an email from Roys
describes the transfer as a “shift in reporting,” and Ney’s notes from a meeting with Roys
on October 6, 2015, reflect that Roys understood the retention specialist would help with
the SOS program once hired. Pl. App. 64; Def. App. 38. The retention specialist would
no longer assist Roys with her duties related to the ARC program, however. Pl. App.
65.
An employee in a different department had handled Roys’ responsibilities related
to the ARC program while she was on FMLA leave, and that employee continued to do

entitled to 24 weeks of FMLA leave in a row because employers calculate the FMLA leave
period anew “each time that leave is requested.” Id.

4

so even once Roys returned. Pl. App. 41. When that employee transferred to another
department, however, the ARC program became Roys’ responsibility once again. Id.
After she returned from FMLA leave, Roys continued to miss work intermittently
for reasons unrelated to her abscess, and Scott and Ney began keeping track of when
Roys was not at the office. Pl. App. 82 ¶ 27. On July 30, 2015, Roys had a doctor’s
appointment in the morning and arrived to work late. Def. App. 57-58. From August 5
through 8, Roys went on vacation, and later, on August 24, an employee with the payroll
office emailed Roys to ask if she had been out for vacation, noting that Roys had no
vacation time and that her paycheck would need to be adjusted to reflect unpaid leave.
Pl. App. 53. Roys also missed work on August 14, 2015. Def. SOF ¶ 10; Pl. Resp.
SOF ¶ 1.
On August 31, 2015, University employees were informed by email of a campuswide reorganization. Pl. App. 86 ¶ 45. According to Roys, she did not receive the
email, and she was not included on the organizational chart.

Id.

As part of the

reorganization, which officially took effect on October 1, 2015, Janet Shepherd became
Roys’ new supervisor. Pl. App. 79 ¶ 17.
During the first half of September, Roys missed three full days and five partial
days of work. Def. SOF ¶ 10; Pl. Resp. SOF ¶ 1. On September 22, 2015, Ney sent
Roys a letter, asking whether her absences were due to the same serious medical condition
as before or a new condition, noting that the University needed to determine whether the
absences were entitled to FMLA protection. Def. App. 29. Ney further advised “that
as of August 31, 2015, [Roys] ha[d] 32 hours of FMLA time, 8 hours of accrued sick
time, and 13.34 hours of accrued vacation time remaining” (Roys accrued 8 hours of sick
leave and 13.34 hours of vacation time every month). Id.; Pl. SOF; Def. Resp. SOF
¶ 5; Pl. App. 7-8. Because Roys had only one day of paid vacation to cover the three

5

September absences, her paycheck was reduced to reflect two days of unpaid leave. Pl.
App. 56.
Also in September, the SOS web form stopped working (faculty used the web form
to inform the SOS committee that a student was having problems.). Def. App. 70-71.
Merkle and Roys worked with the information technology (IT) department to resolve the
problem and manually checked SOS submissions in the meantime. Id. Later, on October
4, 2015, a professor emailed Shepherd “a write-up of [his] concerns about” Roys’
department, one of which had to do with the problems with the SOS form. Def. App.
89. He also noted that Roys had failed to call him back after he left a voicemail seeking
a student’s contact information. Id.; Def. App. 71.
An email dated September 28, 2015, between Ney and Shepherd, reflects that they
were planning to place Roys on a Performance Improvement Plan. Def. Supp. App. 120.
On Thursday, October 1, 2015, Roys asked to meet with Shepherd about a few areas of
concern. Pl. App. 34. Shepherd responded that she would set up a time sometime in the
next week, since she was out of the office the next day. Id. On the morning of Monday,
October 5, 2015, Roys emailed Shepherd to inform her that her abscess had returned and
that she would be working from home because her daughter was sick. Pl. App. 34. The
next day, on October 6, Shepherd and Roys met, along with Ney from Human Resources.
Def. SOF ¶ 29; Pl. Resp. SOF ¶ 24.

Shepherd told Roys that she had not been

performing her job duties related to the ARC and SOS programs satisfactorily and that
she had thirty days to improve, as outlined in a Performance Improvement Plan. Def.
App. 31-32. Specifically, the Performance Improvement Plan stated that Roys needed to
notify faculty and the IT department immediately if the SOS web form was not working
and imposed a twenty-four hour deadline for Roys to notify faculty and the student’s
advisor that an SOS submission had been received. Def. App. 31, 38. The Performance
Improvement Plan also imposed a forty-eight hour deadline for Roys to send ARC letters
6

and emails to students and their advisors and stated that Roys was responsible for enlisting
help from another department if needed. Def. App. 31. If Roys would be unable to meet
these deadlines, she was to let Shepherd know. Id. Ney’s notes of the meeting reflect
that Shepherd also said Roys should email her if she requested help with ARC processing
and received no response within twenty-four hours. Def. App. 38. Roys’ co-chair of
the SOS program, Merkle, was not placed on a Performance Improvement Plan nor
subject to any reprimand regarding that program’s failings. Pl. App. 80-81 ¶ 22.
On Wednesday, October 7, 2015, ARC letters were ready for Roys to send out,
and she missed at least some work that day for a doctor’s appointment. Def. App. 9293. Roys emailed the students on Thursday, October 8, 2015, but she forgot to email
the students’ advisors. Pl. App. 36. An advisor emailed Roys on Friday, October 9, to
ask about the students’ ARC status, copying Shepherd on the email. Def. App. 93.
Shepherd emailed Roys regarding the students on Monday, October 12, and emailed
again on Tuesday, October 13, when Roys did not respond. Def. App. 92. Roys missed
work on Monday, October 12, because she was in the emergency room. Pl. App. 36.
She also missed some work for doctor’s appointments on October 13 and October 23.
Def. App. 92, 116.
Ney sent Roys FMLA paperwork on October 6, 2015, after hearing that her
abscess had returned. Pl. App. 33-34; Def. SOF ¶¶ 16-17; Pl. Resp. SOF ¶ 1. Roys
did not request FMLA leave within the deadline, even though Ney extended the deadline
once. Pl. App. 37; Def. SOF ¶ 17; Pl. Resp. SOF ¶ 1. Roys emailed Ney on October
29, 2015, informing her that many of her absences related to other ailments that would
not qualify for FMLA leave. Pl. App. 69. Roys’ counsel conceded at oral argument that
none of Roys’ absences upon her return to work in July 2015 were protected by the
FMLA.

On November 4, 2015, Roys was terminated, purportedly for poor

performance—including missing a meeting that had been scheduled for some time, failing
7

to respond to the FBI regarding a student background check within an appropriate
timeframe, and failing to send SOS and ARC emails in a timely manner. Def. SOF ¶¶
3, 36; Pl. Resp. SOF ¶ 1; Def. App. 83-86 ¶¶ 7-8, 17.
The University’s employee handbook states that “[d]epending upon the facts,
disciplinary action may include oral or written warnings, suspension with or without pay,
or immediate termination of employment” and that supervisors “in conjunction with the
Director of Human Resources may repeat, modify or omit a level of discipline.” Pl.
App. 9. Per the employee handbook, written warnings may be given “[w]hen an oral
warning fails to achieve the desired improvement in performance or behavior [or] if the
supervisor believes the nature of the offense makes its use appropriate.” Pl. App. 10.
An employee may be terminated as “the result of one serious act of misconduct or
insubordination, or as the result of an accumulation of minor offenses, or failure to
satisfactorily perform job duties.” Id. The employee handbook states that “discharges
must have the prior approval of the Director of Human Resources and the University
President or his/her designee.” Id.
On May 11, 2016, Roys filed the initial complaint in this lawsuit, and on July 11,
2016, she filed an amended complaint. Docs. 2, 12. The University did not move to
dismiss the complaint, and the parties conducted and completed discovery.

The

University now moves for summary judgment on both Roys’ claims. Doc. 17. Roys
concedes that the University is entitled to summary judgment on her FMLA entitlement
claim (Count I), but she resists the University’s motion with respect to her FMLA
discrimination claim (Count II). Doc. 24.
In the University’s reply brief in support of its motion, it included an affidavit
from Dr. William Duffy, the University president, stating that he had approved Roys’
termination in November 2015. Def. Supp. App. 122. Roys moved to strike the affidavit
under Federal Rule of Civil Procedure 37(c) based on the University’s failure to disclose
8

Dr. Duffy in discovery. Doc. 27. At oral argument, Roys conceded that the motion
should not be granted, arguing instead that a genuine issue of material fact exists
regarding whether Dr. Duffy approved her termination. I thus will deny the motion to
strike (Doc. 27).
II.

DISCUSSION

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant [a motion
for] summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” For the plaintiff
to avoid summary judgment, sufficient evidence must exist “on which the jury could
reasonably find for the plaintiff.” Olmsted v. Saint Paul Pub. Sch., 830 F.3d 824, 828
(8th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
The court “view[s] the record in the light most favorable to the nonmoving party and
draw[s] all reasonable inferences in that party’s favor.” Soo Line R.R. Co. v. Werner
Enters., 825 F.3d 413, 418 (8th Cir. 2016) (quoting Bishop v. Glazier, 723 F.3d 957,
960-61 (8th Cir. 2013)).
The FMLA grants eligible employees the right to take twelve weeks of leave
during a twelve-month period “[b]ecause of a serious health condition that makes the
employee unable to perform the functions” of her position. 29 U.S.C. § 2612(a)(1)(D).
Upon return from FMLA leave, the employee is entitled to be restored to her previous
position or “to an equivalent position with equivalent employment benefits, pay, and
other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). An employee is
not entitled, however, to “any right, benefit, or position of employment other than [those]
to which the employee would have been entitled had the employee not taken the leave.”
Id. § 2614(a)(3)(B).

9

Under 29 U.S.C. § 2615(a)(1), employers are prohibited from “interfer[ing] with,
restrain[ing], or deny[ing] the exercise of” FMLA rights. FMLA discrimination claims
arise under this subsection when an employer takes an adverse employment action against
an employee, “motivated by [the employee’s] exercise of FMLA rights.” Pulczinski v.
Trinity Structural Towers, Inc., 691 F.3d 996, 1006-07 (8th Cir. 2012); see also Brown
v. Diversified Distribution Sys., LLC, 801 F.3d 901, 908 (8th Cir. 2015). Here, the
parties agree that Roys exercised her FMLA rights when she took leave in May through
July 2015 and that she suffered a materially adverse employment action when the
University terminated her employment.6 They dispute only whether Roys can prove that
the University acted with discriminatory intent.
A. Direct Evidence of Discriminatory Intent
The plaintiff may establish the employer’s discriminatory intent through direct
evidence. Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013). “[D]irect
evidence is evidence ‘showing a specific link between the alleged discriminatory animus
and the challenged decision, sufficient to support a finding by a reasonable fact finder
that an illegitimate criterion actually motivated’ the adverse employment action.” Griffith
v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (quoting Thomas v. First Nat’l
Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)); see also Massey-Diez v. Univ. of Iowa
Cmty. Med. Servs., Inc., 826 F.3d 1149, 1160 (8th Cir. 2016). “Direct evidence may
be circumstantial if the inferred causal link is strong enough.” Massey-Diez, 826 F.3d

6

Although Roys alleged in her amended complaint that the adverse employment actions taken
against her for taking FMLA leave include transferring the vacant retention specialist position to
another department and placing her on the Performance Improvement Plan (Doc. 12 ¶ 27), Roys’
counsel clarified at oral argument that the discrimination claim is based only on Roys’
termination and waived any reliance on other adverse employment actions to support the
discrimination claim.

10

at 1160. “The bias . . . must be that of the decision maker and must relate to the
decisional process.” Id. “Cases finding direct evidence of discrimination usually involve
. . . more blatant” statements and actions, such as use of a racial slur by a supervisor to
prove racial discrimination or a statement that more female officers were needed to prove
gender discrimination. Id. at 1161.
Here, Roys argues that the following constitutes direct evidence of the University’s
discriminatory intent: (1) Scott emailed Roys while she was on FMLA leave to ask when
she would be returning to work; (2) the University did not follow the disciplinary
procedure outlined in the employee handbook before terminating Roys; and (3) Roys’ cochair of the SOS program was not put on a Performance Improvement Plan or disciplined
in any way regarding that program’s failings. Roys’ cited evidence of discriminatory
intent (discussed in more detail below) is far from rising to the level of direct evidence.
See, e.g., id. at 1160-61.
B. Indirect Evidence of Discriminatory Intent
In the absence of direct evidence of discrimination, the plaintiff may establish the
employer’s discriminatory intent by “indirect evidence using the . . . burden-shifting
framework” (also applicable to Title VII cases) set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). City of Jacksonville, 711 F.3d at 891.
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 article [sic] a legitimate, nondiscriminatory
reason for its actions. Finally, the burden shifts back to the employee to
demonstrate that the “employer’s proffered reason is pretextual.”

11

Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006) (quoting Smith v. Allen
Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002)).
For purposes of Roys’ prima facie case, the parties dispute only whether Roys can
establish causation, which requires proof “that an employer’s ‘retaliatory motive played
a part in the adverse employment action.’” Id. (quoting Kipp v. Mo. Highway & Transp.
Comm’n., 280 F.3d 893, 897 (8th Cir. 2002)). Whether Roys can establish causation is
a close call. I will assume, however, that the evidence is sufficient to establish a prima
facie case. See, e.g., Burciaga v. Ravago Ams. LLC, 791 F.3d 930, 935 (8th Cir. 2015)
(assuming without deciding that the plaintiff established a prima facie FMLA case and
instead ruling on the basis of pretext); Phillips v. Mathews, 547 F.3d 905, 912 n.4 (8th
Cir. 2008) (same).
All that the next step requires is that the University produce evidence of a
legitimate, nondiscriminatory reason for terminating Roys. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). This step is not an onerous one.
Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 925 (8th Cir. 2014). The University
points to evidence that it terminated Roys for poor job performance, including failing to
send emails for the SOS and ARC programs in a timely manner, missing a meeting, and
taking too long to respond to an FBI inquiry about a student. Def. App. 83-86 ¶¶ 7-8,
17. The University has met its burden. See, e.g., Massey-Diez, 826 F.3d at 1162
(holding sufficient proffered reason of plaintiff’s failure to complete all charting within
forty-eight hours as required).
The final step under McDonnell Douglas shifts the burden back to Roys to
“create[] a question of fact regarding whether [the defendant’s] reason was pretextual.”
Id. at 1161. “[Roys’] burden to show pretext ‘merges with the ultimate burden of
persuading the court that [she was] the victim of intentional discrimination.’” Torgerson

12

v. City of Rochester, 643 F.3d 1031, 1046 (8th Cir. 2011) (quoting Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981)); see also Reeves, 530 U.S. at 143.
An employee may prove pretext in two ways:
“First, a plaintiff may succeed ‘indirectly by showing that the employer’s
proffered explanation is unworthy of credence.’” Under this method, the
employee must rebut the employer’s “underlying factual claims” by
establishing that the employer’s explanation has no basis in fact.
Second, the plaintiff may prove pretext “[]directly by persuading the court
that a [prohibited] reason more likely motivated the employer.[]” Under
this method, the employee rebuts “the employer’s ultimate factual claim
regarding the absence of retaliatory intent.” The employee must
demonstrate “that sufficient evidence of intentional retaliation exists for a
jury to believe the plaintiff’s allegations and find that the proffered
explanation was not the true motivating explanation.” Thus, the employee
“may concede that the proffered reason for the termination[] would have
been a sufficient basis for the adverse action while arguing that the
employer’s proffered reason was not the true reason for the action.”
Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006) (second alteration in
original) (citations omitted) (quoting Wallace v. DTG Operations, Inc., 442 F.3d 1112,
1120 (8th Cir. 2006)). Oft-used evidence of pretext includes “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.” Id. “An employee’s attempt to prove pretext . . . requires
more substantial evidence [than it takes to make a prima facie case], . . . because . . .
evidence of pretext and discrimination is viewed in light of the employer’s justification.”
Smith, 302 F.3d at 834 (alteration in original) (quoting Sprenger v. Fed. Home Loan
Bank of Des Moines, 253 F.3d 1106, 1111 (8th Cir. 2001)).
Roys does not dispute that she failed to perform her duties for the ARC and SOS
programs in a timely manner, nor that she missed a meeting and was slow in responding
13

to an FBI background check, yet still argues that the University’s claim that her
performance was deficient is not “supported in fact.” She argues that her duties related
to the ARC and SOS programs were not essential functions of her job and that she was
not deficient in other aspects of her work. She also points to a favorable performance
review in January 2015 and positive letters of recommendation from three colleagues.
Roys acknowledged at her deposition that processing ARC and SOS letters were two of
her main priorities. Def. App. 72. The Performance Improvement Plan, put in place on
October 6, 2015, also highlighted the importance of Roys timely sending out ARC letters
and notified Roys that she would be subject to termination if she did not improve. Def.
App. 39-40. The ARC program was an important part of Roys’ job, and she did not
fulfill her duties related to that program in a timely manner after she returned from FMLA
leave at the end of July 2015. That Roys performed other aspects of her job successfully
(and received a favorable performance review in January 2015) does not undercut the
credibility of the University’s explanation for terminating Roys. See Massey-Diez, 826
F.3d at 1162.
Roys also argues that several facts, taken together, establish that the University
was likely motivated to fire her because she took FMLA leave. She argues that the
temporal proximity between her FMLA leave and her termination supports a finding of
pretext. “Generally, more than a temporal proximity between protected activity and
termination is required” to prove pretext. Malloy v. U.S. Postal Serv., 756 F.3d 1088,
1091 (8th Cir. 2014). To prove causation based on temporal proximity (which is a lower
threshold than pretext), “a one-month or two-month lag” between the protected activity
and termination “is too long absent other evidence,”Ebersole, 758 F.3d at 924-25; but
“[a] pattern of adverse actions that occur just after protected activity can supply the extra
quantum of evidence” needed, Smith, 302 F.3d at 832. Roys requested FMLA leave in
May 2015, returned from FMLA leave on July 27, 2015, and was terminated more than
14

three months later, on November 4, 2015. Def. App. 97-98; Def. SOF ¶¶ 7, 36; Pl.
Resp. SOF ¶ 1. Roys argues that other actions taken by the University help shorten the
gap for purposes of temporal proximity: the vacant retention-specialist position was
transferred to a different department sometime while Roys was on FMLA leave; Roys
was left out of the reorganization chart emailed on August 31, 2015; and she was placed
on the Performance Improvement Plan on October 6, 2015. Pl. App. 64, 86 ¶ 45; Def.
App. 31-32. Aside from the transfer, all these events occurred more than a month after
Roys returned from FMLA leave. The timing of the transfer of the vacant retentionspecialist position is unclear, and it may have occurred more than a month after Roys
requested FMLA leave. See Sisk v. Picture People, Inc., 669 F.3d 896, 900-01 (8th Cir.
2012) (when evaluating temporal proximity for causation purposes, the “court looks to
the date an employer knew of an employee’s use (or planned use) of FMLA leave, not
the date it ended”; but see Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d
1261, 1272-73 (11th Cir. 2017) (holding that the relevant date is the last day of an
employee’s FMLA leave); Judge v. Landscape Forms, Inc., 592 F. App’x 403, 410 (6th
Cir. 2014) (same).
The University contemplated that once the retention-specialist position was filled,
that employee would still assist Roys with the SOS program. Pl. App. 64; Def. App.
38. Although the retention specialist would no longer work on the ARC program, an
employee from the Provost’s office handled the ARC letters when Roys first returned
from FMLA leave. Pl. App. 41, 65. When that employee transferred to a different
department, however, the ARC letters became Roys’ responsibility once again. Pl. App.
41. This evidence rebuts Roys’ contention that the University was purposefully setting
her up for failure by transferring the vacant retention specialist position to another
department, as at the time of Roys’ return from FMLA leave, she would have had as
much help as before she took leave (with the employee from the Provost’s office handling
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ARC letters, and it planned that the retention specialist, once hired, would assist with the
SOS program).
Roys also argues that an email from Scott, her boss, is evidence of the
University’s discriminatory intent. Scott emailed Roys on July 20, 2015, writing:
I feel for you as you deal with all your medical issues. As I am sure you
are aware, your FMLA is running out at the end of the month. You need
to have a serious conversation with your current provider as to when you
can return to work. It seems you have so much on your plate, I hope you
have someone you can talk with about all that is going on. I know there
are resources through HR. You might want to ask about them.
Pl. App. 54. The regulations “permit[] [an employer] to contact [an employee] to inquire
about her ‘status and intent to return to work.’” Massey-Diez, 826 F.3d at 1158 (quoting
29 C.F.R. § 825.311(a)). Although Scott’s email can be read as suggesting that Roys
would be terminated if she were not able to return to work upon the expiration of her
FMLA-protected leave, it does not support that Scott intended to discriminate against
Roys upon her return to work for taking FMLA leave.
Roys also argues that her termination did not follow the procedures in the
employee handbook. The employee handbook sets out four levels of discipline: oral
warning, written warning, suspension, and termination. Pl. App. 9-10. It makes clear
that no step is mandatory, stating that “[d]epending upon the facts, disciplinary action
may include oral or written warnings, suspension with or without pay, or immediate
termination of employment” and that “supervisors in conjunction with the Director of
Human Resources may repeat, modify, or omit a level of discipline.” Id. Thus, the
procedures set forth in the employee handbook did not require that Roys receive an oral
warning nor be suspended before termination (although she did receive written warning
by way of the Performance Improvement Plan). See Smith, 302 F.3d at 835 (holding
that employer did not deviate from policy in employee handbook when handbook
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explicitly stated that employer “reserve[d] the right to immediately discharge associates
without progressing through the first three disciplinary steps”).
The employee handbook also states that “discharges must have the prior approval
of the Director of Human Resources and the University President or his/her designee.”
Pl. App. 10. Roys argues that her termination violated this provision of the employee
handbook. Shepherd’s affidavit claims that she made the final decision to terminate Roys,
but an affidavit from Dr. Duffy, the University President, states that both he and the
Director of Human Resources approved Roys’ termination. Def. App. 86 ¶ 19; Def.
Supp. App. 122 ¶¶ 2-3. The only evidence Roys cites to support her position that Dr.
Duffy did not approve her termination is that the University did not identify Dr. Duffy
in response to an interrogatory requesting the names “of all individuals involved in any
manner” in her termination. Doc. 27-3, at 3. I doubt that this evidence is sufficient to
rebut Dr. Duffy’s affidavit and create a genuine issue of material fact regarding his
approval. Even if Dr. Duffy failed to approve Roys’ termination, however, this would
be very weak evidence of pretext, as no evidence demonstrates that the handbook was
routinely followed with Dr. Duffy approving terminations. See Smith, 302 F.3d at 835
(noting that the plaintiff “pointed to no other employees who were treated differently
[than plaintiff] under the progressive discipline policy” set forth in the employee
handbook).
Roys further argues that pretext can be established because Merkle, the co-chair
of the SOS program, was not placed on a Performance Improvement Plan nor
reprimanded for that program’s failings.
In proving pretext by showing that similarly situated employees were
treated more leniently, the plaintiff’s “comparators” must be “similarly
situated in all relevant respects.” The comparators “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
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circumstances.” The comparators need not have committed the exact same
offense but must have engaged in conduct “of comparable seriousness.”
Ebersole, 758 F.3d at 926 (citations omitted) (quoting Burton v. Ark. Sec’y of State, 737
F.3d 1219, 1229-31 (8th Cir. 2013)). The only evidence that Merkle was a similarly
situated employee is that she co-chaired the SOS program with Roys. Roys was placed
on a Performance Improvement Plan and ultimately terminated for a number of
deficiencies in her job performance, only some of which related to the SOS program.
Def. App. 31, 83-84. There is no evidence that Merkle had deficiencies in other areas
of her work aside from the SOS program. In addition, no evidence establishes that
Merkle had the same supervisor as Roys. It is also unclear whether Merkle was dilatory
in performing her SOS duties or that she had the same level of responsibility over the
SOS program as Roys.

Even assuming that she did, sufficient distinguishing

circumstances exist such that Merkle is not a valid comparator for purposes of
establishing pretext.
Roys makes much of the fact that the ARC duties were not included in her official
job description until October 13, 2015, and then removed two days after her termination.
Roys neglects to mention that in her written response to the Performance Improvement
Plan (which she drafted on October 13, 2015, but did not send until October 29, 2015),
she complained, “my job description was . . . not updated to reflect my job duties . . .
even though I did request this to be done shortly after I began in this position.” Pl. App.
36, 43. It seems likely that Roys’ job description was updated at her request. Even
assuming it was not, there is no dispute that the ARC program was one of Roys’ main
responsibilities. Def. App. 72. At best, this is weak evidence of pretext.
Finally, Roys argues that she absented work upon her return from FMLA leave
with the same frequency as before she took leave and that the University began tracking
her absences upon her return.

An employer placing an employee “under constant
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surveillance at work” may help prove pretext, along with other evidence. Kim v. Nash
Finch Co., 123 F.3d 1046, 1052, 1061 (8th Cir. 1997) (addressing Title VII retaliation
claim). In Kim, such other evidence included:
[the employee’s] Saturday and fill-in shipping foreman duties were
immediately eliminated, he began to receive markedly lower performance
evaluations, he was orally cautioned about a poor attitude toward
management, he was . . . excluded from meetings at work, he was
disciplined following a September 1992 incident . . . , and in late 1993 he
was required to participate in special remedial training.
Id. at 1061. The additional evidence here, discussed previously, does not rise to the
level of the additional evidence in Kim. Moreover, here, Roys used all her sick leave
and vacation time while on FMLA leave, yet continued to miss work upon her return,
and the University needed to know how much unpaid leave Roys was taking so that her
paycheck could be adjusted accordingly. Pl. App. 53; Def. App. 29, 57-58; Def. SOF
¶ 10; Pl. Resp. SOF ¶ 1. That Roys’ return from FMLA leave coincides with her need
to take unpaid leave undercuts the significance of the timing of the University beginning
to track Roys. See Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 1001 (8th Cir. 2011)
(“[T]emporal proximity[] is undermined where the allegedly retaliatory motive coincides
temporally with the non-retaliatory motive.”).
Roys’ argument that she missed work as frequently as before also misses the mark.
Roys’ absences after she returned from leave impacted her performance, and no evidence
establishes that her performance was so affected by absences before she took FMLA
leave. For example, Roys was placed on the Performance Improvement Plan on October
6, 2015, which set forth a 48-hour deadline to send out ARC letters and emails. Def.
App. 31. If Roys did not think she would be able to meet these deadlines, she was to
notify Shepherd. Id. On Wednesday, October 7, ARC letters were ready for Roys to
send out, and she missed at least some work that day for a doctor’s appointment. Def.
App. 92-93, 117. On Friday, October 9, a student advisor emailed both Roys and
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Shepherd asking about the status of the ARC letters and noting that students had been
inquiring. Def. App. 93. On Monday, October 12, Shepherd emailed Roys to ask
whether she had sent the ARC letters. Def. App. 92. Roys missed work that day because
she was in the emergency room and did not respond to Shepherd’s email. Pl. App. 3536; Def. App. 92. Shepherd again emailed Roys on Tuesday, October 13. Def. App.
92. Roys finally responded, stating that she had sent the ARC letters to students on
Thursday, October 8; but that she had neglected to send letters to the students’ advisor
as required. Pl. App. 36. She apologized that “medical issues are taking up some of my
time” and noted that she had another doctor’s appointment that afternoon. Id. In that
instance, Roys missed work, failed to send out all the necessary letters for the ARC
program in a timely manner, and failed to keep Shepherd informed (as the Performance
Improvement Plan required her to do).
The facts here, considered in combination, are far from rising to the level of
evidence necessary to rebut the University’s stated reason for terminating Roys and
establish that the University was likely motivated by a discriminatory motive. See, e.g.,
Massey-Diez, 826 F.3d at 1162-64. Roys cannot establish pretext, so the University is
entitled to summary judgment on Roys’ discrimination claim.
III.

CONCLUSION

Roys’ motion to strike (Doc. 27) is denied, and the University’s motion for
summary judgment (Doc. 17) is granted. Judgment should be entered in favor of the
University. The University’s motion in limine (Doc. 29) is denied as moot.
IT IS SO ORDERED this 17th day of August, 2017.

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