DeWitt v. Southwestern Bell Telephone Company et al
Filing
87
MEMORANDUM AND ORDER granting 75 Motion for Summary Judgment. See order for further details. Signed by U.S. District Senior Judge Sam A. Crow on 8/13/14. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JANNA DEWITT,
Plaintiff,
v.
Case No. 12-2605-SAC
SOUTHWESTERN BELL
TELEPHONE COMPANY,
Defendant.
MEMORANDUM AND ORDER
This employment practices case comes before the Court on
Defendant’s motion for summary judgment. Plaintiff brings the following
claims against Defendant: terminating her employment on the basis of her
disability in violation of the ADA; failing to reasonably accommodate her in
violation of the ADA; and terminating her in retaliation for her use of leave in
violation of the FMLA. Dk. 72, p. 7.
I. Summary Judgment Standard
On summary judgment, the initial burden is with the movant to point
out the portions of the record which show that the movant is entitled to
judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968
F.2d 1022, 1024 (10th Cir. 1992), cert. denied, 506 U.S. 1013 (1992). If
this burden is met, the non-movant must set forth specific facts which would
be admissible as evidence from which a rational fact finder could find in the
non-movant's favor. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998). The non-movant must show more than some “metaphysical
doubt” based on “evidence” and not “speculation, conjecture or surmise.”
Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir. 2004).
The essential inquiry is “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether the evidence is so
one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, 477 U.S. 242, 251-52 (1986).
In applying this standard, all inferences arising from the record must
be drawn in favor of the nonmovant. Stinnett v. Safeway, Inc., 337 F.3d
1213, 1216 (10th Cir. 2003). Credibility determinations and the weighing of
the evidence are jury functions, not those of a judge. Id. at 1216.
Nevertheless, “the nonmovant must establish, at a minimum, ‘an inference
of the existence of each element essential to [her] case.’ “ Croy v. COBE
Laboratories, Inc., 345 F.3d 1199, 1201 (10th Cir. 2003) (quoting Hulsey v.
Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)).
II. Facts
The Court sets forth the relevant and admissible facts, construed in
the light most favorable to the Plaintiff, below. Additional facts are set forth
in the Court’s analysis of the arguments. The Court notes that both parties
have improperly attempted to controvert uncontroverted facts by arguing
2
that various inferences that may arise from an uncontroverted fact are
misleading, immaterial, or incomplete.
Defendant hired Plaintiff on April 21, 1997 to work as a customer
service representative. An essential function of her job was answering calls
from customers. From time to time, Defendant’s supervisors reviewed calls
handled by customer service representatives. Plaintiff has Type I diabetes, is
insulin dependent, and has used an insulin pump since 2008. She monitors
her glucose level numerous times throughout the day.
Cramming Incident
During her employment, Plaintiff reviewed Defendant’s Code of
Business Conduct Policy, in addition to other documents. That Code stated
that Defendant will “earn and preserve [the customers’] trust by treating
them with honesty and integrity, and in a professional, courteous manner.
[Defendant] does not provide goods or services that customers did not
authorize.” Dk. 76, Exh. 5. It additionally stated, “[e]ach employee is
responsible for being familiar with the information in this Code, and for
following the Code, and the Company’s policies and guidelines. We
understand that violation may result in discipline, up to and including
termination of employment.” Id.
Plaintiff understood “cramming” to be when a customer service
representative deliberately adds services to a customer’s account without
telling the customer about it. Plaintiff understood that “cramming” would be
3
a violation of the Code of Business Conduct principles, warranting serious
consequences.
On January 21, 2010, Plaintiff failed to delete a service plan from a
customer's account after that customer declined the service. Plaintiff had
added the service to the customer’s account because that was the only way
for Plaintiff to determine the cost of the service. After Plaintiff told the
customer the cost, the customer declined the service but Plaintiff forgot to
remove the unwanted service from the account. Tom Heumann, Plaintiff’s
immediate supervisor, detected this error while reviewing Plaintiff’s calls and
Plaintiff was suspended the next day.
Plaintiff had a “Day In Court” meeting on January 29, 2010, regarding
this incident, so had an opportunity to state her side of the story to the
person who would make a final decision on what discipline to impose.
Plaintiff’s meeting was conducted by the General Manager of the Consumer
Call Centers, Kimberly Baskett-McEnany. Plaintiff did not dispute that she
had added a service to a customer’s account without the customer’s
approval which she should not have done, but claimed her act was
unintentional.
After the meeting, Baskett-McEnany and her management team
decided to offer Plaintiff a “Last Chance Agreement.” In that agreement,
Plaintiff agreed that Defendant had just cause to terminate her employment
4
and that any discipline she had already received was based on just cause.
She further agreed
… that I will maintain satisfactory performance in all components of my
job, including measurement, safety, attendance/punctuality, use of
company resources, company policies, and conduct. Through this
Agreement I acknowledge and understand that even one incident of
failing to maintain satisfactory performance in all components of my
job . . . may lead to further disciplinary action including dismissal.
Dk. 76, Exh. 9. Plaintiff signed the Last Chance Agreement on February 1,
2010, having been told by Defendant that if she did not sign it she would be
terminated.
FMLA Leave
Throughout her employment, Plaintiff took FMLA leave for medical
conditions, including those related to her diabetes. She took FMLA leave only
if she had no vacation leave available. Defendant never denied any of
Plaintiff’s requests for FMLA leave, but sometimes requested additional
information.
Before March 3, 2010, Defendant had always provided whatever
accommodations Plaintiff needed for her medical condition. Defendant
permitted Plaintiff to keep candy, juice, and other items at her desk to use in
case of a blood sugar event, and permitted her extra breaks to check her
blood sugar levels and to address any blood sugar issues.
5
Hang-Ups1
Hanging up on customers before a call is completed is a violation of
Defendant’s Code of Business Conduct and is considered a customer
“mistreat.” Plaintiff understood it was improper for a customer service
representative to hang up on a customer call before it was completed
because that could make the customer mad and make a negative impression
of Defendant, jeopardizing the company’s reputation. To hang up on a
customer, a customer service representative must first click the “Release”
button on a toolbar at the top of the screen, then click “yes” to the pop up
question that appears in the middle of the screen.
On March 3, 2010, Plaintiff hung upon at least two customers. She
alleges that she unknowingly disconnected the calls during an episode of
extremely low blood sugar, and did not disconnect them intentionally.
Plaintiff recalls that she “felt off” earlier in the afternoon, so drank pineapple
juice to try to stabilize her blood sugar. At one point her blood sugar
dropped and she began trembling. She ate dried fruit, and drank Dr. Pepper.
She has no recollection of having received calls from two or more customers,
then disconnecting them without speaking to them. After those hang ups,
Plaintiff recalls being locked out of her computer and contacting supervisor
Heumann to help reset it.
1
For purposes of convenience, the Court uses the term “hung up” to indicate a premature
disconnection, without indicating that the act was deliberate or intentional.
6
Heumann discovered the hang-ups later that day when reviewing
Plaintiff’s calls. Later that day, Plaintiff participated in a suspension meeting
with Heumann, Beth Kloxin (a “manager” of some kind), and Mary Tormey,
the Union Steward. During the meeting, participants reviewed two hang-up
calls for which they had “screenshots.” Those calls had occurred at 3:53
p.m. and 3:54 p.m. Plaintiff was suspended without pay, and realized that
she was probably going to be fired.
Immediately after that meeting, Plaintiff’s union steward asked to see
her insulin pump monitor and recorded Plaintiff’s blood glucose levels for
that day from the monitor: 46 at 3:15 p.m., 85 at 4:01 p.m., 44 at 4:32
p.m., and 34 at 4:37 p.m.2 Plaintiff’s normal blood sugar level is between 60
and 120.
Thereafter, Baskett-McEnany reviewed the suspension meeting
minutes and discussed with Rivera (a second-line supervisor) and Kloxin that
the screenshots video indicated that Plaintiff seemed to have capable control
over the system.
On March 10, 2010, Baskett-McEnany held a Day In Court meeting at
which Plaintiff was allowed to state her position regarding the dropped calls.,
2
Plaintiff states that a medical record shows her blood glucose level of 34 that day was at
5:07 p.m., not 4:37 p.m. (Dk. 83, Exh. G, p. 2.) But the record itself is illegible. Plaintiff
avers, without explanation, that the times stated on the medical record are one hour later
than the actual time, so believes her level of 34 occurred at 4:07 p.m. But Plaintiff neither
offers any basis of knowledge for that assertion, nor any explanation for why the stated
time is 30 minutes later than the time recorded above (4:37) from Plaintiff’s insulin pump
monitor. Accordingly, the Court sustains Defendant’s objection to this testimony regarding
this exhibit as inadmissible for lack of foundation.
7
Plaintiff stated that the hang ups were caused by her diabetes, that they
were not done intentionally, that she had no recollection of the three-to-five
minute period during which she had disconnected the calls, and that her
computer had locked up. Plaintiff does not allege that she presented either
the insulin pump monitor blood sugar readings or the medical record
showing her blood sugar readings for March 3rd.
After that meeting, Baskett-McEnany, in consultation with Rivera,
made the decision to terminate Plaintiff’s employment because she knew
Plaintiff was on a Last Chance Agreement and had mistreated customers.
She believed Plaintiff had purposefully hung-up on multiple customers and
that this misconduct was not caused by her disability. Defendant terminated
Plaintiff's employment effective March 15, 2010, notifying her that she was
terminated for releasing two calls, a customer mistreat and Code of Business
Conduct violation, and for her violation of the Last Chance Agreement.
III. Analysis
A. ADA Termination
To establish a prima facie case of employment discrimination under
the ADA, Plaintiff must present evidence that (1) she is disabled within the
meaning of the ADA; (2) she is qualified to perform the essential functions of
his job with or without accommodations; and (3) she was terminated under
circumstances which give rise to an inference that the termination was based
8
on her disability. Smothers v. Solvay Chemicals, Inc., 740 F.3d 530,
544 (10th Cir. 2014).
Even assuming, arguendo, that Plaintiff can prove the first two
elements of a prima facie claim, her ADA claim fails as a matter of law
because she cannot establish that her termination was based on her alleged
disability. To establish this latter element, an employee must show a nexus,
or “at least a logical connection” between his disability and the termination.
See Greene v. Safeway Stores, Inc., 98 F.3d 554, 558 (10th Cir. 1996).
“Establishment of the prima facie case in effect creates a presumption
that the employer unlawfully discriminated against the employee.”
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101
S.Ct. 1089, 67 L.Ed.2d 207 (1981). But if the employer articulates “a
legitimate nondiscriminatory reason for the action ... [, the employee]
must show [the employer's] proffered reasons are pretextual.”
Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998).
When evaluating evidence of pretext, “we examine the facts as they
appear to the person making the decision to terminate [Appellant].”
Selenke, 248 F.3d at 1261 (internal quotations and citations omitted).
Tesh v. U.S. Postal Service, 349 F.3d 1270, 1272 (10th Cir. 2003).
Plaintiff attempts to meet this burden by presenting circumstantial
evidence of discrimination, requiring application of the familiar McDonnell
Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Carter v.
Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th Cir. 2011). Thus,
the plaintiff must first submit evidence from which a reasonable jury could
conclude that a prima facie case of discrimination has been established. The
defendant must then offer sufficient evidence of a legitimate,
9
nondiscriminatory reason for its action. Carter, 662 F.3d at 1141. If the
defendant does so, the plaintiff must identify evidence from which a
reasonable jury could conclude that the proffered reason is actually a pretext
designed to mask discrimination. Id. Although the burdens of production
shift, the ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the
plaintiff. Id.
Defendant’s burden to articulate a legitimate, nondiscriminatory
reason for the plaintiff's termination is not onerous. See Anaeme v.
Diagnostek, Inc., 164 F.3d 1275, 1279 (10th Cir. 1999) (recognizing
employer's burden is “exceedingly light”), cert. denied, 528 U.S. 814 (1999).
Defendant has met this burden by providing evidence that Plaintiff
mistreated customers by disconnecting two or more customer calls on March
10th, when subject to a Last Chance Agreement in which both parties
agreed that “even one incident of failing to maintain satisfactory
performance in all components of [her] job . . . may lead to further
disciplinary action including dismissal.” Plaintiff essentially contends that her
acts were done while she was experiencing hypoglycemic unawareness
syndrome – a direct result of her diabetes - thus Defendant erred in finding
she acted intentionally. But the Court’s task is not to “ask whether the
employer's decision was ‘wise, fair or correct, but whether [it] honestly
believed [the legitimate, nondiscriminatory] reasons [it gave for its conduct]
10
and acted in good faith on those beliefs.’ ” Johnson v. Weld Cnty., Colo., 594
F.3d 1202, 1211 (10th Cir. 2010) (quoting Rivera v. City & Cnty. of Denver,
365 F.3d 912, 925 (10th Cir. 2004)).
Plaintiff must thus show evidence from which a reasonable jury could
conclude that the defendant's proffered non-discriminatory reason for its
action is a pretext for intentional discrimination based on her disability. See
Texas Dept. of Community. Affairs v. Burdine, 450 U.S. 248, 255 & n. 10,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Swackhammer v. Sprint/United
Management Co., 493 F.3d 1160, 1163 (10th Cir. 2007) (Plaintiffs must
come forward with “evidence … sufficient to permit an inference that the true
explanation ... was intentional discrimination.”); Miller v. Eby Realty Group
LLC, 396 F.3d 1105, 1111 (10th Cir. 2005) (“[T]he factfinder must be able
to conclude, based on a preponderance of the evidence, that discrimination
was a determinative factor in the employer's actions-simply disbelieving the
employer is insufficient.”)
Pretext may be shown in a variety of ways, “including but not limited
to differential treatment of similarly situated employees and procedural
irregularities.” Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 (10th Cir. 2008).
See Danville v. Regional Lab Corp., 292 F.3d 1246, 1250 (10th Cir. 2002).
Typically, a plaintiff attempts to demonstrate pretext in one or more of three
ways:
(1) with evidence that the defendant's stated reason for the adverse
employment action was false, (2) with evidence that the defendant
11
acted contrary to a written company policy prescribing the action to be
taken by the defendant under the circumstances, or (3) with evidence
that the defendant acted contrary to an unwritten policy or contrary to
company practice when making the adverse employment decision
affecting the plaintiff.”
Kendrick v. Penske Transportation Services, 220 F.3d 1220, 1230 (10th Cir.
2000) (internal citations omitted). Here, Plaintiff shows none of the above.
Instead, she relies on her own subjective beliefs, and negative statements
and acts by persons who did not participate in the decision to terminate her
employment.
First, Plaintiff states her belief that the job performance of employees
who used FMLA leave was watched more closely in order to find reasons to
get rid of them, and Plaintiff did not want to be “one of those FMLA people”
or be on the “naughty list” for taking FMLA leave, so used her vacation time
first. But these speculations are conclusory, and are unsupported by citation
to any record or any basis in fact, and have no connection to the belief of
the decision-makers.
Secondly, Plaintiff relies on an affidavit by Manager Suzanne Garcia,
who left Defendant’s employment in 2008. She avers: “customer service
representatives that used FMLA leave negatively impacted the sales quotas
of the sales manager”; “as a manager, [she] attended meetings and heard
discussions regarding employees who used FMLA leave”; “some employees
using FMLA leave were targeted as employees that [Defendant] wanted to
terminate and looked for other reasons to terminate that employee”; “Beth
12
Kloxin was one of the managers who discussed terminating employees using
FMLA leave”; “at a meeting in Dallas, Texas, a company executive indicated
that employees who used FMLA leave should go to work for ‘one of our
competitors’”; and [Plaintiff] was on the ‘target list’ as an employee who
used FMLA leave and should be fired if possible for other reasons.
But it was Baskett-McEnany, in consultation with Rivera, who made
the decision to terminate Plaintiff’s employment. To show pretext, the
plaintiff must a demonstrate a nexus between the allegedly discriminatory
statements and the defendant's decision to terminate her. Rea v. Martin
Marietta Corp., 29 F.3d 1450, 1457 (10th Cir. 1994). No evidence suggests
that Baskett-McEnany or Rivera was present at any of the meetings Garcia
attended, that either of them heard, made or agreed with any of the
statements noted in Garcia’s affidavit, or that either of them was aware of
any “target list.” Nor does Plaintiff raise any cat’s paw theory. See Macon v.
United Parcel Service, Inc., 743 F.3d 708 (10th Cir. 2014) (explaining when
an employer can be liable for a biased supervisor’s acts even if the final
discipline is imposed by a seemingly neutral higher authority). Accordingly,
the general anti-FMLA statements noted by Garcia fail to raise any inference
of a pretextual termination decision. Cf. Jones v. Unisys Corp., 54 F.3d 624,
632 (10th Cir. 1995) (“This stray [double-hearsay] remark by someone not
in a decision-making position does not establish intent to discriminate.”);
Conroy v. Vilsack ,707 F.3d 1163, 1184-1185 (10th Cir. 2013).
13
Lastly, Plaintiff points to animus by Manager Kloxin.3 Rivera testified
that
[w]hen Kloxin found out that DeWitt had disconnected the customer
calls, Kloxin was “doing a dance in the back [of the office] and told
[Rivera], ‘I finally got that bitch.’” When Rivera told her this behavior
was not appropriate, she responded, “You don’t understand. I’ve been
chasing after her long before, since you got here.” She proceeded to
explain to him that DeWitt has “continued attendance issues” and she
did a little dance.
Dk. 83, p. 16.
But Kloxin was not a decision-maker in Plaintiff’s termination, and the
record fails to show that Baskett-McEnany had any knowledge of Kloxin’s
actions or that she or Rivera shared Kloxin’s motive or sentiments. To the
contrary, Rivera told Kloxin her behavior was inappropriate, and Plaintiff
alleges that Rivera recommended that she not be terminated and did not
believe her hang-ups were intentional. Dk. 83, p. 17. Nothing in these facts
gives rise to an inference that defendant's stated reason of job misconduct is
a pretext for intentional discrimination on the basis of Plaintiff’s diabetes.
See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323-24 (10th Cir. 1997).
The record, viewed in the light most favorable to the Plaintiff, fails to
disclose a genuine issue of material fact regarding pretext. Summary
judgment is thus appropriate on this termination claim.
3
The record notes that Kloxin is a “manager,” but fails to reveal her job title or duties. She
does not, however, appear to be in the line of direct supervision for the Plaintiff and did not
participate in the decision to terminate the Plaintiff.
14
B. ADA Failure to Accommodate
To establish a prima facie case of failure to accommodate under the
ADA, a plaintiff must show that: (1) she is a qualified individual with a
disability; (2) the employer was aware of her disability; and (3) the
employer failed to reasonably accommodate the disability. Allen v.
SouthCrest Hosp., 455 Fed.Appx. 827, 830, 2011 WL 6394472, 3 n. 2 (10th
Cir. 2011).
For purposes of this discussion, the Court assumes, arguendo, that the
first two elements above are met, and focuses solely on whether Defendant
failed to reasonably accommodate Plaintiff’s diabetes. Under the ADA, an
employer discriminates against a qualified individual with a disability if the
employer does not
mak[e] reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is
an applicant or employee, unless such [employer] can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such [employer]. 42 U.S.C. §
12112(b)(5)(A).
Roberts v. Cessna Aircraft Co., 289 Fed.Appx. 321, 326, 2008 WL 3524009,
4 (10th Cir. 2008). See 42 U.S.C.A. § 12111 (defining the term “reasonable
accommodation”).
The only accommodation Plaintiff suggests is retroactive - to excuse or
overlook her misconduct or reduce her discipline, since her conduct was
related to her disability. This suggested accommodation is untimely and
unreasonable, so is not required by the ADA. As the Tenth Circuit found in
15
Davila v. Quest Corp., 113 Fed. Appx. 849, 854 (10th Cir. 2004), “excusing
workplace misconduct to provide a fresh start/second chance to an
employee whose disability could be offered as an after-the-fact excuse is not
a required accommodation under the ADA.”
In essence, plaintiff's position is that when defendant learned his
workplace violence was evidently rooted in a bipolar condition,
defendant was required to retroactively excuse any misconduct related
to that condition. But, as many cases have recognized in various
contexts, excusing workplace misconduct to provide a fresh
start/second chance to an employee whose disability could be offered
as an after-the-fact excuse is not a required accommodation under the
ADA. See, e.g., Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894
(8th Cir.1999); Burch v. Coca-Cola Co., 119 F.3d 305, 320 n. 14 (5th
Cir. 1997) (following Siefken v. Vill. of Arlington Heights, 65 F.3d 664,
666 (7th Cir. 1995)); Office of Senate Sergeant at Arms v. Office of
Senate Fair Employment Practices, 95 F.3d 1102, 1107-08 (Fed.Cir.
1996); Green v. George L. Smith II Ga. World Congress Ctr. Auth.,
987 F.Supp. 1481, 1484-85 (N.D.Ga. 1997). As the EEOC's
Enforcement Guidance succinctly states, “ ‘[s]ince reasonable
accommodation is always prospective, an employer is not required to
excuse past misconduct even if it is the result of the individual's
disability.’ ” Brookins v. Indianapolis Power & Light Co., 90 F.Supp.2d
993, 1007 (S.D.Ind.2000) (quoting U.S. Equal Opportunity
Employment Comm'n, Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with
Disabilities Act at 24).
In sum, neither the immediate ground for plaintiff's termination,
nor the antecedent disciplinary violation placing him in an employment
status vulnerable to termination, implicate ADA protections. We
conclude that plaintiff's ADA claim must fail as a matter of law.
Davila, 113 Fed.Appx. at 854. See EEOC, Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the ADA, No. 35,
2002 WL 31994335, 24-26 (“An employer never has to excuse a violation of
a uniformly applied conduct rule that is job-related and consistent with
business necessity.”); Id, No. 36 (“Since reasonable accommodation is
16
always prospective, an employer is not required to excuse past misconduct
even if it is the result of the individual's disability.”).
Although the Tenth Circuit has no published decision on this issue, this
court is persuaded by Davila and by other Circuit courts which have
consistently explained that a ‘second chance’ or overlooking misconduct that
otherwise warrants termination is not a “reasonable accommodation.” See
e.g., Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 465 (4th Cir.
2012) (“[T]he law does not require [defendant] to ignore misconduct that
has occurred because the student subsequently asserts it was the result of a
disability.”); Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 90 (1st Cir.
2012) (“When an employee requests an accommodation for the first time
only after it becomes clear that an adverse employment action is imminent,
such a request can be ‘too little, too late.’ ”); Macy v. Hopkins County Sch.
Bd. of Educ., 484 F.3d 357, 366 (6th Cir. 2007) (assuming that verbal
outbursts stated to be the reason for her termination were symptomatic
behaviors of her disability, yet finding” [T]his court has repeatedly stated
that an employer may legitimately fire an employee for conduct, even
conduct that occurs as a result of a disability, if that conduct disqualifies the
employee from his or her job.”) abrogated on other grounds by Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312, 315–16 (6th Cir. 2012) (en
banc); Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998)
(“[T]he ADA does not insulate emotional or violent outbursts blamed on an
17
impairment.... [Plaintiff] cannot hide behind the ADA and avoid
accountability for his actions.”); Palmer v. Circuit Court of Cook Cnty., Ill.,
117 F.3d 351, 352 (7th Cir. 1997) (“[I]f an employer fires an employee
because of the employee's unacceptable behavior, the fact that that
behavior was precipitated by a mental illness does not present an issue
under the Americans with Disabilities Act.”). The ADA does not require an
employer to excuse an employee's previous misconduct, even if it was
precipitated by her disability.
Nor was Defendant required to allow Plaintiff an opportunity to alter
her diabetes monitoring technique prior to terminating her. See Hill v.
Kansas City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir. 1999) (finding
this accommodation unreasonable; upholding termination of police officer
who was fired after he suffered a severe diabetic reaction that caused him to
lose control over his squad car); Siefken v. Village of Arlington Heights, 65
F.3d 664, 666 (7th Cir. 1995) (explaining that a workplace adjustment
exclusively within the employee's control is not an accommodation within the
meaning of the ADA). Accordingly, summary judgment in favor of Defendant
is warranted on this failure to accommodate claim.
C. FMLA Retaliatory Termination
Plaintiff’s final claim is that Defendant terminated her employment in
retaliation for her prior use of FMLA leave.
FMLA claims under a theory of retaliation are subject to the
burden-shifting analysis of McDonnell Douglas. Metzler, 464 F.3d at
18
1170 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). A prima facie case of
retaliation requires a showing that (1) the employee engaged in a
protected activity, (2) the employer took an action that a reasonable
employee would have found materially adverse, and (3) there is a
causal connection between the protected activity and the adverse
action. Id. at 1171. Once a plaintiff establishes the prima facie case,
the burden shifts to the employer to demonstrate a legitimate,
nonretaliatory reason for termination. Id. at 1172. Finally, in order to
avoid summary judgment, the employee must show that there is a
genuine dispute of material fact as to whether the employer's reasons
for termination are pretextual. Id.
Brown v. ScriptPro, 700 F.3d 1222, 1229 (10th Cir. 2012).
Here, as above, the Court assumes, arguendo, that Plaintiff meets the
first two elements, so focuses on the requisite causal connection. The parties
agree that Plaintiff took FMLA leave in 2009 and “early 2010.” Oddly, the
parties fails to establish the dates of such leave.
A retaliatory motive may be inferred when an adverse action closely
follows protected activity. Chavez v. City of Arvada, 88 F.3d 861, 866 (10th
Cir. 1996). However, unless the termination is very closely connected in time
to the protected activity, the plaintiff must rely on additional evidence
beyond temporal proximity to establish causation. Conner v. Schnuck
Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (emphasis added).
Compare Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 596
(10th Cir. 1994) (one and one-half month period between protected activity
and adverse action may, by itself, establish causation) with Richmond v.
ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-month period,
standing alone, is insufficient to establish causation). The parties appear to
19
assume that because Plaintiff’s terminable offenses occurred in January and
March of 2010, the requisite causal connection would ordinarily be
established by mere temporal proximity. The Court lacks sufficient facts to
decide this issue so accepts this concession.
Defendant points to the intervening event of the disconnected calls to
dispel any inference of a causal nexus. The Tenth Circuit has held that “…
evidence of intervening events, tend[s] to undermine any inference of
retaliatory motive and weaken the causal link.” Maestas v. Segura, 416 F.3d
1182, 1189 (10th Cir. 2005). See Cypert v. Independent School Dist. No. I050 of Osage County, 661 F.3d 477, 484 (10th Cir. 2011); Couch v. Board
of Trustees of Memorial Hosp. of Carbon County, 587 F.3d 1223, 1237 (10th
Cir. 2009).
.. we have recognized that evidence of temporal proximity has minimal
probative value in a retaliation case where intervening events between
the employee's protected conduct and the challenged employment
action provide a legitimate basis for the employer's action. See Argo v.
Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1203 (10th Cir.
2006); cf. Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005)
(observing, in the context of First Amendment retaliation, that
“evidence of intervening events tend[s] to undermine any interference
of retaliatory motive and weaken the causal link” (citation omitted)).
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1001-1002 (10th Cir.
2011) (finding unreported absences after plaintiff’s complaint about
discrimination constituted intervening events that undermined her temporalproximity argument).
20
A temporal nexus may actually cut against a finding of pretext where
an employer acts in response to specific and continuing disciplinary
problems.
The timing argument is undermined, however, by the fact that Mr.
Argo arrived late for work on January 29, and once again failed to
work on “old leads” as directed. Mr. Argo was fired the next morning,
January 30. These intervening events defeat any inference of
retaliation because the company's concerns about tardiness and
“attitude” obviously predate Mr. Argo's internal complaint. Ms. Oliva's
January 2 “Performance” memorandum issued a “last warning” for
“tardiness, time utilization, [and] not following directives,” and
specifically threatened termination for future infractions. Id. at 138.
Thus, the timing of the termination actually cuts against a finding of
pretext by strongly suggesting that Blue Cross Blue Shield acted in
response to specific and continuing disciplinary problems.
Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193,
1203 (10th Cir. 2006) (finding that no reasonable jury could conclude that
Argo’s termination was retaliatory).
Even assuming a causal connection sufficient to establish a prima facie
case, the Court finds, for the same reasons discussed above in analyzing
Plaintiff’s ADA discrimination claim, that Defendant has shown a legitimate,
nonretaliatory reason for Plaintiff’s termination, and Plaintiff has not raised a
triable issue of pretext for purposes of this FMLA retaliation claim.
IT IS THEREFORE ORDERED that Defendant’s motion for summary
judgment (Dk. 75) is granted.
21
Dated this 13th day of August, 2014, at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
22
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