Lamar v. Proctor & Gamble
Filing
49
OPINION AND ORDER granting 42 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIDGETT LAMAR,
Plaintiff,
Civil Action No.
13-CV-13380
vs.
Honorable Patrick J. Duggan
PROCTER & GAMBLE
DISTRIBUTING LLC,
Defendant.
_______________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This is an employment discrimination case brought under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., Michigan’s ElliottLarsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101 et seq., and the
Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Plaintiff Bridgett
Lamar claims that she was placed on a performance improvement plan (PIP) and
subsequently terminated from her employment with Defendant Procter & Gamble
Distributing LLC (P&G) because of her race (African American), pregnancy, use
of FMLA leave, and complaints of discrimination. P&G claims that the PIP and
termination resulted solely from Plaintiff’s poor work performance.
Now before the Court is P&G’s motion for summary judgment. The matter
is fully briefed and the Court heard oral argument on January 22, 2015. For the
reasons that follow, the Court will grant the motion.
II. BACKGROUND
Plaintiff began working for P&G in March 2010 as a veterinary account
manager (VAM) in P&G’s pet care division. Banker Decl. ¶¶ 2, 4; Pl. Dep. at 72.
As a VAM, Plaintiff’s job was to sell products manufactured by P&G to veterinary
practices within her designated region, the central region, which encompassed
most of Michigan’s lower peninsula. Pl. Dep. at 40-41, 51-52, 54-55. For the first
two years of her employment, Plaintiff’s direct supervisor was Eleanor (Marci)
Banker, a veterinary account executive (VAE); Plaintiff’s so-called “one-up”
manager was Steve Giovanni, who was in charge of the central region. Banker
Decl. ¶¶ 4, 9; Giovanni Dep. at 77-79. Giovanni, in turn, reported to associate
director Tommy Walsh, who was responsible for the operation of P&G’s pet care
division nationally. Walsh Decl. ¶ 2; Giovanni Dep. at 137; Taney Dep. at 10-11.
As a VAM, Plaintiff was required to visit veterinary clinics in her region to
promote and sell P&G products. Lamar Dep. Ex. 3-4, 8. “VAM Scorecards” were
used by P&G to evaluate the sales performance of each VAM relative to other
VAMs around the country. Giovanni Decl. ¶ 4. VAMs also received annual
performance evaluations after the close of each fiscal year, which ran from July 1
2
to June 30, through “work and development plans.” Banker Decl. ¶ 12. Work and
development plans were completed by each VAM and his or her VAE, and then
reviewed and approved by Giovanni. Banker Dep. at 81; Giovanni Dep. at 81-82.
Finally, each fiscal year P&G rates the performance of VAMs on a scale of one to
three, with a one rating reflecting a performance within the top 20% relative to the
employee’s peer group, a rating of three reflecting a performance within the
bottom 6% relative to the employee’s peer group, and a rating of two reflecting
performances in between. Erwin Decl. ¶¶ 8-9.
Plaintiff’s performance evaluation for fiscal year 2010-2011, her first full
fiscal year with P&G, contained positive comments.
However, despite these
positive remarks and her receipt of a “meeting expectations” rating, Banker noted
on the evaluation that Plaintiff “delivered 3 out of 8 of her deliverables [i.e.,
performance goals] in [fiscal year 2010-2011].” Pl. Dep. Ex. 11. In addition,
Plaintiff received a performance rating of two for fiscal year 2010-2011, indicating
that her performance relative to her peers was better than the bottom 6% but worse
than the top 20%. Erwin Decl. ¶ 12. Under P&G’s VAM Scorecard rating system,
Plaintiff ranked 34 out of 38 VAMs nationwide, with a rating of one being the best.
Giovanni Decl. ¶ 6. According to Giovanni, “the Michigan region [Plaintiff] was
responsible for went from being one of the top 15 performing regions – her
predecessor’s VAM ranking as of June 2009 – to one of the five worst performing
3
regions in the country.” Id. ¶ 7. VAM Scorecard rankings as of June 2009 indicate
that Plaintiff’s predecessor, Michelle Swigart, who managed the same territory as
Plaintiff, ranked 15 out of 36 VAMs nationwide. Id. at Ex. C; Banker Decl. ¶ 6.
Thus, P&G’s objective performance metrics indicate that under Plaintiff’s watch,
performance for Plaintiff’s region dropped from about average to below average.
Banker Decl. ¶ 6; Giovanni Decl. ¶ 7, Ex. C.
After the 2010-2011 fiscal year ended on June 30, 2011, the relationship
between Plaintiff and Banker began to deteriorate. At around this time, Banker
grew concerned that Plaintiff was not appropriately inputting her sales activity in
“Salesforce.com,” P&G’s internal sales tracking system, and was not confident
about Plaintiff’s “ability to relate all the product knowledge . . . to our customers.”
Banker Dep. at 315. Regarding the requirement that VAMs input their sales
activities in Salesforce.com, Plaintiff testified that “at the beginning” of her
employment, she was told to log only “things that were important” into
Salesforce.com, and was not told to log all of her sales activities in Salesforce.com
until March 2012. Pl. Dep. at 64-66. However, Banker sent an email on June 23,
2011, right before the end of the 2010-2011 fiscal year, to the VAMs under her
supervision, including Plaintiff, reminding them that “[t]his is your last chance to
get all your calls . . . recorded in Salesforce.” Pl. Dep. at Ex. 8. Additionally,
Banker sent another email on July 1, 2011, right after the close of the 2010-2011
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fiscal year, telling VAMs to “LOG EVERYTHING IN SALESFORCE” and
warning: “This is not an area that will allow for any flexibility this year.” Id. at
Ex. 9. Notwithstanding Plaintiff’s testimony, the July 1 email demonstrates that
VAMs were required to log all sales activity in Salesforce.com beginning July 1,
2011.
As mentioned, Banker perceived problems in the manner Plaintiff was
logging her sales hours in Salesforce.com beginning July 1, 2011, which was when
the requirement to log all sales activity became mandatory. Banker Dep. at 315;
Pl. Dep. at Ex. 9. Banker testified that “there were many days [where] there was
nothing logged” and “some months where there were more phone calls made than
in-person calls made,” which concerned Banker because “this was a field-selling
role that required you to have a relationship with the customers, which meant that
you needed to leave your home to . . . build on that relationship.” Banker Dep. at
318. On August 23, 2011, Banker sent an email to Plaintiff informing her that she
“can’t understand how you [Plaintiff] are logging things [in Salesforce.com],”
explaining to Plaintiff that she had logged more phone calls than in-person calls,
and reminding Plaintiff that “[y]ou should have more in person calls than phone
calls.” Pl. Dep. Ex. 10. Although Plaintiff responded to Banker’s email stating
that “[a]ll calls in [Salesforce.com] are reflective of my work,” id., she admitted in
her deposition that she did not comply with Banker’s July 1, 2011 directive to
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“LOG EVERYTHING IN SALESFORCE.” Pl. Dep. at 128. When asked why,
Plaintiff responded: “I just didn’t.” Id.1
On January 5, 2012, Plaintiff and Banker spoke by phone. According to
Plaintiff, Banker was “disrespectful, rude, and demeaning,” and told Plaintiff that
her “counterparts were doing circles around [her],” that she “should be grateful for
having a job,” that she “didn’t deserve the money that [she was] making,” and that
she “didn’t love [her] job.” Pl. Dep. at 160-61. Banker testified that she “had
concerns about [Plaintiff’s] performance . . . versus her peers that were hired
within the same timeframe” and admits that she told Plaintiff that her peers –
namely, male VAMs Mike Scovronski and Tyler Winters – “could run circles
around her.” Banker Dep. 250. However, Banker denies that she told Plaintiff that
she thought Plaintiff was underpaid or that she did not like her job. Id.
Plaintiff sent an email to Banker on February 6, 2012 reflecting on their
phone conversation a month earlier. In the email, Plaintiff wrote that statements
made by Banker during the conversation “were disrespectful and in my opinion not
conductive to a healthy working relationship,” and proposed that they “move
1
In an affidavit submitted in connection with these summary judgment
proceedings, Plaintiff attested that Banker told her not to log all of her sales calls in
Salesforce.com from October 2011 to February 2012, in light of the fact that
Plaintiff’s “internet access was not always reliable.” Pl. Aff. ¶ 3. However, when
asked in her deposition why she did not log her hours in Salesforce.com during this
time period, Plaintiff failed to mention that Banker told her not to. Pl. Dep. 128.
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forward and develop a stronger and healthier relationship and work towards the
same goal each day.” Banker Decl. Ex. A.
Also on February 7, 2012, Plaintiff sent an email to Lucy Klette in human
resources requesting that the two discuss “a private matter.” Pl. Ex. 13B. Plaintiff
forwarded to Klette a copy of Plaintiff’s February 6 email to Banker, and told
Klette that the email was written “as a result of what I deem as verbal abuse and
harassment for some time while I have been in this position.” Id. Klette responded
to Plaintiff’s email on February 13, 2012, writing that she would “be happy to
connect with you whenever I can to help resolve this conflict,” but also noting that
Allison Erwin was the primary human resources contact for Plaintiff’s division.
Id. Plaintiff and Klette spoke the next day; Plaintiff told Klette “about the issues
that were going on” between her and Banker and about “the inappropriate
conversation that took place” on January 5, 2012, which Plaintiff “felt . . . was
discriminatory and harassing.”
Pl. Dep. at 160.
At some point after this
conversation, Klette turned the matter over to Allison Erwin, who was the human
resources manager responsible for VAMs. Klette Dep. at 70.
On February 23, 2012, Banker discussed Plaintiff’s performance issues with
Giovanni, Erwin, Klette, Walsh, and Karen LaBarre, P&G’s regional manager. Pl.
Ex. 13C. On February 27, 2012, Erwin emailed Plaintiff stating that she (Erwin)
and Klette had spoken about Plaintiff’s issues with Banker, and proposing a
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conference call between Plaintiff, Banker, and Erwin. Pl. Ex. 13D. Plaintiff
responded to Erwin’s email on March 1, 2012, writing that she is uncomfortable
with a conference call with Banker, as she feared that Banker would retaliate. Id.
The teleconference between Plaintiff, Erwin, and Banker took place on
March 2, 2012.
Erwin took detailed notes on what occurred during the
conversation. Erwin began by stating that both Banker and Plaintiff had concerns
that they wanted to discuss, which is why Erwin scheduled the conference call, and
asked Banker to lead the conversation. All agreed that Plaintiff’s concerns about
Banker would be “table[d]” “until either the end of the meeting or for another
time.” Banker stated that she was aware that Plaintiff had spoken to Klette and
Erwin with confidential concerns, and encouraged Plaintiff to talk with human
resources “anytime she may need something and that she has every right to do that,
and that this phone call was about a specific issue unrelated to [Plaintiff’s] call to
HR.” Prior to the conference call, Banker emailed Plaintiff and Erwin a calendar
showing an excessive number of days over a six-month period from July 1, 2011 to
January 31, 2012 in which no in-person or telephonic sales calls were recorded in
Saleforce.com.2 Erwin expressed concern and stated that she and Banker “needed
2
The time period captured by the calendar was a six-month period after July 1,
2011 – the date Banker emailed Plaintiff and other VAMs telling them to “LOG
EVERYTHING IN SALESFORCE” and warning that “[t]his is not an area that
will allow for any flexibility this year.” Pl. Dep. at Ex. 9. The time period
captured also includes the five-month period (October 2011-February 2012) during
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to understand what activity was occurring the days with little to no sales activity
recorded.”
Plaintiff explained that “logging calls in Salesforce was not a
deliverable [goal] expected of her” and that “she views Salesforce as a tool for
recording information on clinics and looking up information for cold calls, but that
people don’t document every call they make and that she was never expected to.”
Plaintiff admitted that she did not record all of her activity in Salesforce.com.
Erwin asked Plaintiff what unrecorded tasks she had completed during the time
period in question to account for the days on which no sales activity was recorded
in Salesforce.com.
Plaintiff responded listing various tasks, and Erwin asked
Plaintiff if she had verifying documentation. Banker explained the importance of
inputting all activity in Salesforce.com and noted that this has always been a job
expectation.
Plaintiff responded that she now understood that this was an
expectation and that she would log all activity going forward. Pl. Ex. 13E.
Banker then shared another concern: That Plaintiff’s “travel to western
Michigan is not as high as she would expect” and that Plaintiff had not spent
enough “overnights” in that area. Plaintiff explained that she had traveled to
western Michigan more times than reflected in Salesforce.com, and that she made
day trips to Grand Rapids and did not stay overnight due to “budget constraints”
which Banker allegedly told Plaintiff that she need not log all of her sales calls in
Salesforce.com.
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facing P&G. Plaintiff also explained that “she did not think travel should be an
issue, given that the majority of her business is in southeast Michigan and that
western and northern Michigan represent white space.”
Plaintiff and Banker
agreed that the two would jointly review Plaintiff’s routing schedule and that
“[Plaintiff] would use [Banker] as a resource in the future for guidance around
appropriate travel percentages and schedules.” Erwin then summarized what had
occurred during the conference and the plan going forward. Erwin wrote that
“they were not able to get to [Plaintiff’s] concerns in the time allotted today” but
that “she would separately set up a time” for the three to discuss those concerns.
Pl. Ex. 13E.
On March 5, 2012, Plaintiff emailed Erwin expressing her dissatisfaction
and disappointment with the way in which her issues with Banker had been
handled. In the email, Plaintiff wrote that “[t]he issues that [Banker] brought to
your attention are not relative to my objectives,” “VAMs . . . are not mandated to
log calls into Sales force and that is something that [Banker] herself does not
adhere to,” and that Plaintiff “should not be forced to complete a task that none of
my fellow co-workers complete and neither does my superiors.” Plaintiff then
inquired: “I would like to know how and why were my complaints ignored??? I
did not feel like anything was accomplished in a positive manner and it makes me
question how my issues of discrimination and [Banker] creating a hostile work
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environment for the women on our team become a non-issue over [Banker] making
up an complaint about me. My reviews have all been positive and my numbers
have been great and I enjoy my job.” Plaintiff wrote that “[t]he real issue is
[Banker] has been very unprofessional with the comments that she has made to
myself and about my fellow co-workers” and that “[s]he has used discrimination
tactics towards the women on this team and she violated the code of ethics for a
work place environment.” Plaintiff stated that she “brought this issue to HR and I
would like to see that this issue is not ignored and that a complete investigation is
completed.” Erwin responded to this email the same day, expressing her desire to
speak to Plaintiff. Id.
On March 7, 2012, Plaintiff emailed Klette expressing her belief that Banker
retaliated against her for contacting human resources by making much of the fact
that Plaintiff did not log all her sales activity in Salesforce.com. Pl. Ex. 13G.
Plaintiff also expressed disappointment that her issues with Banker were
“completely ignore[d],” and conveyed her belief that human resources had allowed
Banker to “deter the real issues” and “act out of rage” such that Banker is “not . . .
accountable for the unprofessionalism and creating a hostile work environment.”
Id. Klette forwarded Plaintiff’s email to Erwin. Id. When asked in her deposition
if she understood Plaintiff’s March 7 email to Klette as lodging a complaint of
discrimination, Erwin responded: “Probably. Possibility.” Erwin Dep. at 289.
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Erwin and Plaintiff spoke by phone on March 13, 2012. Id. at 292-93;
Erwin Decl. ¶ 4. During the phone conversation, Erwin “assured” Plaintiff that
Erwin would investigate Plaintiff’s concerns regarding Banker and “keep them
separate” from Banker’s concerns about Plaintiff’s performance.” Erwin Decl. ¶ 4.
The next day, Erwin sent an email to Plaintiff confirming their phone conversation
the previous day, writing: “I want to reiterate that I am looking into both the
performance questions and your concerns about your working relationship with
[Banker], both equally seriously and on parallel timing, but I am keeping the two
issues separate, in terms of who I talk to and how I document the conversations.”
Def. Ex. 6A. Erwin also informed Plaintiff that she and Giovanni “have some
follow-up questions now that we have had a chance to review your documentation
and the comments you shared with me yesterday,” and sent Plaintiff an electronic
conference call invitation. Id. However, Plaintiff refused to participate in the
conference call, writing to Erwin in an email: “I am denying your [electronic]
invite to further discuss, this has been racial discrimination and harassment I need
to speak with the proper individuals to further investigate. I will contact you at . . .
a later date or someone else will be in contact with you.” Def. Ex. 6B. This is the
first time Plaintiff indicated that her discrimination complaints were based on race,
as opposed to only gender.
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On March 15, 2012, Plaintiff filed a formal complaint against Banker and
Erwin through P&G’s internal reporting system, known as “Alertline,”
complaining of non-sexual harassment and race and gender discrimination. Pl. Ex.
14. P&G took two actions after Plaintiff filed her Alertline complaint. First, it
assigned two new human resources investigators from outside the pet care division
to investigate: Hallam Sargeant and Dee Johnson.
Sargeant Dep. at 55-56.
Second, effective March 27, 2012, P&G reassigned Plaintiff to a different direct
supervisor, Giovanni, in place of Banker, and appointed Mike Taney, the global
human resources manager for P&G’s pet care division, as Plaintiff’s new human
resources contact in place of Erwin. Giovanni Decl. ¶ 8. From this point forward,
Banker had no involvement with Plaintiff for the duration of her employment at
P&G. Banker Decl. ¶ 15; Giovanni Decl. ¶ 8.
Sargeant and Johnson investigated Plaintiff’s Alertline complaint by
reviewing documents and conducting interviews of Plaintiff, Banker, Giovanni,
Deidre Scott (Plaintiff’s peer), Janet Holthus (Plaintiff’s peer), Mike Scovronski
(Plaintiff’s peer), and Michelle Swigart (Plaintiff’s predecessor covering the same
region and former direct report of Banker). Their findings and recommendations
are summarized in a written report dated May 2, 2012. In sum, Sargeant and
Johnson found that Plaintiff’s allegations of non-sexual harassment and race and
gender discrimination were “not substantiated,” but did find that “a culture of fear
13
and retaliation exists with the three female members of Marci Banker’s team.”
Specifically, Sargeant and Johnson noted that Banker made statements to her
female subordinates to the effect that “she did not like working with women” and
Banker’s female subordinates “were afraid to speak to anyone in Petcare HR as
well as [Banker’s] manager Steve Giovanni for fear that word would get back to
[Banker] and they would end up on a performance improvement plan or without a
job.”
Sargeant and Johnson further noted that the women on Banker’s team
described her management style as “condescending,” “abrasive,” and “creating and
fostering a hostile work environment,” and that they “try to keep their distance
from her” due to “a fear of retaliation, fear of losing their job and of not getting
promoted.”
Sargeant and Johnson determined that Plaintiff’s complaint that
Banker treated one particular male VAM, Mike Scovronski, more favorably than
others was “substantiated.” Sargeant and Johnson also noted that one particular
employee told them that she was told by Banker and Giovanni that it was “not a
good idea” to complain about Banker to human resources, causing that employee
to “put her tail between her legs and move on.” In the “recommendations” section
of their report, Sargeant and Johnson “strongly recommend moving [Banker] to a
role where she is no longer managing others” and issuing her a “[s]trong formal
warning regarding . . . no retaliation, treat all employees with respect, etc.”
Sargeant Dep. at Ex. 9.
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P&G took remedial actions against Banker in response to the investigation
of Sargeant and Johnson:
[Erwin] and I [Walsh] went and met with [Banker] and we pulled her
from managing anyone on her team for 60 days. We required Steve
Giovanni to sit in on all her monthly one-on-ones. We required
[Banker] to go to a leadership conference, and we removed [Plaintiff]
from reporting directly to [Banker].
Walsh Dep. at 55.
Meanwhile, on May 16, 2012, Plaintiff sent an email to
Sargeant expressing her satisfaction with Giovanni, her new direct manager,
writing that “his support and dedication to my success has been exceedingly
apparent” and that working with him has been a “very professional experience.”
Taney Decl. Ex. A.
On June 1, 2012, Giovanni and Taney met with Plaintiff, and Giovanni
recapped the meeting in an email to Plaintiff sent on June 7, 2012. During the
meeting, the three discussed the results of Plaintiff’s Alertline complaint,
Plaintiff’s job performance, and upcoming sales goals. Regarding the first issue,
Giovanni acknowledged the results of the investigation, noting that “the
investigation did reveal the feelings of fear and retaliation amongst . . . members of
the team,” and reassured Plaintiff that this was “being fixed.”
In addition,
Giovanni invited Plaintiff to alert him, Erwin, or Taney should Plaintiff experience
any retaliation going forward, writing that P&G would “not tolerate any form of
15
retaliation,” and told Plaintiff to “share any more negative experiences” with him
“at anytime.” Taney Dep. Ex. 10.
During the June 1 meeting, the three also discussed Plaintiff’s performance
up until that point in fiscal year 2011-2012 and her selling plan for the next fiscal
year. Giovanni noted that Plaintiff was “on target to achieve . . . 4 out of 6
deliverables [performance goals]” and that she “had a chance to make [her] 5th
deliverable.” The three also discussed steps for “getting off to a great start” in the
next fiscal year, including “20-25 in clinic calls per week” and “[r]ecording [those]
calls daily in salesforce.com.” Id.
On June 14, 2012, Giovanni emailed Plaintiff inquiring whether Plaintiff had
made her hotel reservations for a national sales conference scheduled for the next
month. Pl. Ex. 17. Plaintiff responded informing Giovanni that she would be
unable to attend the conference because her doctor had placed her on a travel
restriction. Id. The travel restriction, signed by Plaintiff’s doctor on June 14,
2012, indicated that Plaintiff is pregnant with an expected delivery date of
November 1, 2012, and that “related to pregnancy she should not be traveling.”
Erwin Decl. Ex. C. On June 17, 2012, Lisa Breedon, a registered nurse in P&G’s
health services department, emailed Plaintiff congratulating her on her pregnancy
and asking Plaintiff to provide more detailed information about her travel
restrictions, noting that “[i]t is imperative that you remain safe at work.” Breedon
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Decl. ¶¶ 2-3, Ex. A. On June 27, 2012, Plaintiff’s doctor provided more details on
Plaintiff’s medical restrictions, as requested by P&G:
Due to her high risk pregnancy, we recommend the following
restrictions. At this point in her pregnancy, we recommend her not
flying or taking a train. Driving is permissible, 3-4 hours with a break
every hour. We recommend that she stay close to home. She is able
to work from home or the office at this time but, as the pregnancy
progresses; we would prefer that she work from home. We also
recommend that she not lift anything over 25 pounds and maintain a
low stress environment.
Id.
On July 25, 2012, Giovanni spoke to Plaintiff about her travel restrictions
and sent her an email the same day recapping the conversation. Giovanni told
Plaintiff:
[P]lease do not conduct any overnight travel in your territory until
your doctor has had the opportunity to review your travel restrictions
and approve overnight travel with Health Services. In the meantime,
please plan to continue working locally focusing on calling on 5-6
clinics in person per day and be sure to stay within your
medical/travel restrictions that are in place today. Lastly, as a
reminder, please be sure to log your calls into Salesforce.com daily.
Giovanni Decl. Ex. B. On July 24, 2012, Erwin sent an email to Plaintiff and
Giovanni detailing the FMLA process and providing Plaintiff with the necessary
paperwork. Erwin Decl. Ex. D.
On July 30, 2012, Giovanni sent an email to Tommy Walsh outlining six
issues with Plaintiff’s performance.
The issues relate to Plaintiff’s failure to
adhere to various deadlines regarding the submission of medical paperwork,
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including FMLA-related papers, along with Plaintiff’s failure to respond in a
timely manner to work emails. In closing, Giovanni told Walsh that there have
been “multiple examples of not following direction,” including “15 days out [of]
the field (as reported in salesforce.com as of July 9th).” Giovanni also wrote that
Plaintiff “struggles with taking direction from just about anyone and it just does
not seem like there is a willingness on her part to operate with discipline or a sense
of urgency and take accountability of her actions.” Pl. Ex. 13I.
On August 15, 2012, Plaintiff’s doctor submitted another medical restriction:
“Patient may only work from home starting 8/14/12 through the duration of her
maternity leave.”
Pl. Dep. Ex. 22.
However, P&G could not accommodate
Plaintiff’s work-from-home restriction. On August 17, 2012, Giovanni and Taney
spoke to Plaintiff regarding the new restriction, and the details of the discussion are
summarized in an email written by Giovanni to Plaintiff on August 20, 2012.
Giovanni told Plaintiff to “suspend any and all field activity immediately” because
her “health is very important to [P&G] and we want to ensure you follow all
required restrictions.”
Giovanni also informed Plaintiff that P&G could not
accommodate her new restriction prohibiting all field work:
Since our field-based selling roles require face to face interaction, we
are not able to accommodate your work-from-home restrictions. In
addition, we have no available alternate and meaningful work for you
to perform at home. Therefore, and has been consistent practice for
field-based
sales
personnel
requiring
work-from-home
accommodation, you will be placed on an unpaid leave of absence
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effective August 27th, 2012. Your absences while on leave will be
applied against your 12-week leave entitlement under the Family
Medical Leave Act.
However, Giovanni also told Plaintiff that P&G could give her five months of
unpaid leave, which is two months longer than required under the FMLA:
Our practice in the selling organization is to allow employees to take
four months for any medical-related leave [of] absence. We follow
this practice to prevent any adverse effect on volume in our business
as a result of having a salesperson absent from his/her territory for an
extended period of time. On 08/17/12, you said that you would need
three months post your surgery (which is now anticipated to occur in
early October 2012) to recover. Although this would take you from
your territory for approximately 5 months, at this time we anticipate
being able to effectively manage your territory during your period of
absence. If, however, the timing of your leave would extend greatly
beyond this time, we may need to bring someone else into the territory
to ensure we don’t lose a significant amount of business with your
customers. We would of course, come to you first to see if you were
ready to return before backfilling your role.
Pl. Dep. at Ex. 23.
Plaintiff testified that Taney tried to “force” her to take early FMLA leave
during the August 17 discussion and when Plaintiff resisted, Taney stated, “oh, is it
because you don’t have the money?” Pl. Dep. at 181. Moreover, according to
Plaintiff, Giovanni and Taney repeatedly asked her throughout her pregnancy – “I
want to say four or five times” – to provide additional details regarding her work
limitations beyond those provided by Plaintiff’s doctor. Id. at 199.
Plaintiff filed another Alertline complaint, alleging that “she was
discriminated against because she was not allowed to work from home and because
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she was being ‘forced’ to take FMLA.” Taney Decl. ¶ 6. P&G assigned an
independent investigator to investigate the complaint, and the investigator
ultimately concluded that Plaintiff’s allegations “could not be substantiated and
that Plaintiff ‘was told both verbally and in writing that she could have 3 months
after her babies were born until she would be expected to be back to work and a
position would be held for her.’” Id.
On August 22, 2012, Plaintiff’s doctor eased Plaintiff’s work restrictions:
“Working from home is preferred at this point in her pregnancy, however she is not
prohibited to go into the work field and may resume her normal work duties with
no restrictions.” Pl. Ex. 17. P&G returned Plaintiff to her normal job duties at this
point. Pl. Dep. at 216; Giovanni Decl. ¶ 14.
In her affidavit, Plaintiff attests that she requested two weeks of vacation
immediately prior to her maternity leave, which was scheduled to begin on October
3, 2012, but that Giovanni denied the request and instructed her to work from
home during those two weeks. Pl. Aff. ¶ 9. However, the record indicates that
Giovanni allowed Plaintiff to take vacation time prior to her leave. In an email
sent to Plaintiff on September 28, 2012, Giovanni instructed Plaintiff to use eleven
days of vacation from October 3, 2012 through October 18, 2012, and then to
begin her FMLA leave on October 19, 2012. Pl. Ex. 13.
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P&G deemed Plaintiff’s work performance for fiscal year 2011-2012,
covering July 1, 2011 to June 30, 2012, to be poor. Plaintiff made the lowest
number of in-person sales calls of any VAM in the country. Giovanni Decl. ¶ 17.
Of the VAMs that Giovanni supervised, Roger Cain made the most in-person calls
(979) and Plaintiff made the least (274). Id. ¶ 18. Stu Miller, who made the
second lowest number of in-person calls after Plaintiff, made 700 calls, which is
more than double the number made by Plaintiff. Id. In light of this, Plaintiff was
assessed a three rating for her performance in fiscal year 2011-2012, along with a
VAM Scorecard ranking of 38 out of 41. A three rating meant that Plaintiff’s
performance was deemed in the bottom 6% relative to her peers. Erwin Decl. ¶ 9.
Giovanni recommended the three rating to Walsh, who agreed with it because there
was “[t]ime out in the field that we could not account for and poor performance on
the scorecard.” Walsh Dep. at 129. Giovanni attested that he recommended a
three rating for Plaintiff “based on her poor work performance during the fiscal
year” and stated that the recommendation “had nothing whatsoever to do with her
race, gender, pregnancy, use of leave, or any other factor.” Giovanni Decl. ¶ 22.
Giovanni did not receive any input from Banker regarding Plaintiff’s ranking. Id.
Plaintiff returned from her maternity leave on January 4, 2013. Giovanni
Decl. ¶ 23. During the first three weeks following her return, Giovanni permitted
Plaintiff to work from home “to catch-up on administrative items, learn about new
21
initiatives and ease back into her field sales role.” Id. According to Plaintiff,
Giovanni and Taney refused to authorize reimbursement for Plaintiff’s home
Internet and fax line. Pl. Dep. at 163-64. Plaintiff testified that Taney “laughed
and joked” during a phone conversation with Plaintiff, “basically saying that he
wanted to make sure that I wasn’t stealing company funds to pay for [the] Internet.
. . . [and] . . . that they wanted me to provide proof and documentation of what my
bill was.” Id. at 164-65.
On January 15, 2013, Giovanni sent Plaintiff an email summarizing a
discussion the two had the day before. Giovanni Decl. Ex. D. In the email,
Giovanni instructed Plaintiff to “build plans to travel and make in person calls to
your accounts in Western and Northern Michigan a minimum of 3 times between
now and the end of June” and to “begin making in person calls in the field starting
. . . January 22.” Id. Regarding the requirement that Plaintiff begin making inperson calls on January 22, Giovanni instructed Plaintiff to “complete a minimum
of 5 in person calls per day” and to “record you[r] calls in salesforce.com daily.”
Id. Although Giovanni attested that Plaintiff recorded only one day in the field
between January 22 and January 29, id. ¶ 25, the record also reflects that Plaintiff
attended a five-day conference at Giovanni’s direction during the third week of
January. Pl. Aff. ¶ 10.
22
On February 5, 2013, Giovanni and Taney traveled to Detroit to meet with
Plaintiff in person. Giovanni Decl. ¶ 26; Taney Decl. ¶ 10. Giovanni opened by
sharing the objectives of the meeting and informing Plaintiff that she had received
a three rating for fiscal year 2011-2012. Taney Dep. Ex. 14. The objectives of the
meeting were to inform Plaintiff of her performance rating for fiscal year 20112012 and to present Plaintiff with a PIP to “provide [her] with honest and open
feedback on performance issues holding her back from being competitive with her
peers and with a plan to help resolve these issues.” Plaintiff announced that she
would record the meeting, but Taney told Plaintiff that she did not have P&G’s
permission to do so. Plaintiff “then decided to pack up and leave,” at which time
Taney told her that “this is an official meeting to discuss her performance which
needs to be improved, and by walking out and not having the conversation, this
could lead towards termination.” Plaintiff announced that she was going to call her
attorney and stepped out in the lobby to do so. Id.
Plaintiff returned about an hour later, “sat down, put the recorder on the
table and just looked at [Giovanni and Taney].” Plaintiff told Giovanni and Taney
that the recorder was off and the meeting began. Id. The recorder was not, in fact,
off. Giovanni Decl. ¶ 32 (“I later learned that [Plaintiff] had not turned off the
recorder and actually continued to tape record the meeting.”).
According to Taney, the following then ensued:
23
[Giovanni] started again by explaining the rationale for the three
rating. [Plaintiff] was a bit confused since she felt like the results in
the recent months were equal to her peers. [Giovanni] explained that
the timing for her rating was from July 2011 through June 2012 and
that she had performance issues all year long. He shared several
emails and letters asking [Plaintiff] to enter her calls into the sales
data system. [Plaintiff] stated that this was only shared in the July
sales meeting, July 2012, but [Giovanni] reminded her of these emails
and several requests that were directly made to her to enter her data.
With the data she entered, [Plaintiff] made an average of 1 call per
day for the calendar year (only including the days that she worked).
The requirement is 5-6 face to face calls per day.
[Giovanni] then moved from sharing her rating to sharing the [PIP].
[Plaintiff] immediately said that this plan is not doable and she would
not sign it. [Giovanni] stated let’s go through the details [of the PIP]
line by line and we can discuss each point, which he did. [Plaintiff]
had complaints about each section. I reminded [Plaintiff] that this
plan is being put in place to help improve her performance. . . . I told
her the sales objectives are somewhat negotiable but that [Giovanni]
and she would need to dialogue about them. However, [Giovanni] as
manager, who has responsibility for the business results, has the final
say.
[Plaintiff] then discussed that calling on the 95 customers in Northern
and Western Michigan was impossible and the wrong thing for the
business. [Giovanni] shared that these customers were just as
important as the ones that are close to her house. We are losing with
these customers and since they have not been called on for a long
time, it’s critical we call on them immediately. He also said that it’s
all right to spread this out over two months, so that she wasn’t
traveling as much with the newborns.
[Plaintiff] still disagreed and said the best thing for the territory is to
not call on these territories. [Giovanni], again disagreed, and told her
that she needs to call on all of the key accounts within her territory.
She again disagreed. I shared with [Plaintiff] that [Giovanni’s]
experience and responsibility as the manager is to ensure we are
growing the business and that this was his call. [Plaintiff] stated that
24
she is not signing the document and not agreeing to calling on these
customers.
[Giovanni] tried several times to explain the importance of calling on
these customers and entering all sales data into the system. [Plaintiff]
was not willing to neither discuss nor listen any longer. I told
[Plaintiff] that if she is unwilling to perform the tasks of the job, she
would be terminated. She then said, just fire me. I repeated that if
you are willing [sic] to do these tasks, you leave us no choice. She
then got up to leave. I asked for her to leave all company assets, like
her laptop, American Express Card and keys to her car. I told her we
would pay for a taxi to get her home. She stormed out stating, you
will have to call the cops to get these from me.
Taney Dep. Ex. 14. Giovanni’s recollection of the meeting is consistent with that
of Taney. Giovanni Decl. ¶¶ 28-34, 38.
Giovanni attested that the decision to put Plaintiff on a PIP “had nothing
whatsoever to do with [Plaintiff’s] race, gender, pregnancy, use of leave, or
internal complaints,” and that the termination decision stemmed from Plaintiff’s
“poor performance and refusal to participate in the PIP.” Id. ¶¶ 27, 28. Giovanni
and Taney attested that they had no intention of terminating Plaintiff going into the
February 5 meeting. Giovanni Decl. ¶ 28; Taney Decl. ¶ 10. Giovanni also
attested that he is not aware of any P&G employee, other than Plaintiff, “who flatly
refused to participate in a PIP or who disregarded Procter & Gamble’s warnings as
to the consequences of not participating in a PIP.” Giovanni Decl. ¶ 35.
Giovanni attested that the goals set forth in Plaintiff’s PIP were attainable
and reflected the minimum expectations of Plaintiff’s job:
25
The objectives set forth in [Plaintiff’s] PIP reflected the minimum
day-to-day expectations for a VAM and approximated 1/12 of
[Plaintiff’s] annual expectations – in line with the 30-day duration of
the PIP. The goals in the PIP . . . reflected the minimum expectations
for a VAM and were accomplishable within the 30-day timeframe.
Giovanni Decl. ¶ 29.
However, Plaintiff testified that the PIP was “very
harassing,” “inaccurate,” and “[a] set up for me to fail.” Pl. Dep. at 173-75.
Plaintiff points out multiple aspects of the PIP, each of which she contends was
unattainable or contrary to P&G policy. Pl. Dep. at 166-67, 170-76.
Plaintiff filed this lawsuit on August 6, 2013. Her amended complaint
contains the following five counts:
Count I: Sex and pregnancy discrimination under Title VII;
Count II: Sex and pregnancy discrimination under ELCRA;
Count III: Interference and retaliation under the FMLA;
Count IV: Race discrimination under Title VII and ELCRA;
Count V: Retaliation in violation of Title VII and ELCRA.
After the close of discovery, P&G filed the present motion for summary judgment.
III. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 instructs courts to “grant 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.” Fed. R. Civ. P.
56(a).
The relevant inquiry “is whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
26
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52, 106 S. Ct. 2505, 2512 (1986).
IV. ANALYSIS
Plaintiff alleges that she was discriminated against, based on her race and
pregnancy, in violation of Title VII and Michigan’s ELCRA, and that she was
terminated because she complained about discrimination and took FMLA leave.
P&G seeks summary judgment with regard to each of Plaintiff’s claims.
A. Race and Pregnancy Discrimination Under Title VII and ELCRA
1. General Framework for Discrimination Claims
Title VII’s anti-discrimination provision makes it “an unlawful employment
practice for an employer . . . to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1).
Michigan law includes a similar protection.
Mich. Comp. Laws §
37.2202(a). Discrimination claims under Title VII and ELCRA are analyzed under
the same evidentiary framework. Schoonmaker v. Spartan Graphics Leasing, LLC,
595 F.3d 261, 264 n.2 (6th Cir. 2010). Under both federal and Michigan law,
discrimination on the basis of “sex” includes pregnancy. 42 U.S.C. § 2000e(k);
Mich. Comp. Laws § 37.2201(d).
27
Plaintiff may prove her discrimination claims by either direct or indirect
(circumstantial) evidence. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564,
570 (6th Cir. 2003) (en banc).
Here, Plaintiff relies solely on circumstantial
evidence in support of her discrimination claims, and must therefore employ the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817 (1973). Laster v. City of Kalamazoo, 746 F.3d 714, 726
(6th Cir. 2014). Under the McDonnell Douglas framework, Plaintiff must first
establish a prima facie case of discrimination. If Plaintiff is able to do so, the
burden shifts to P&G to offer a legitimate, non-discriminatory explanation for its
actions. If P&G produces such an explanation, Plaintiff must offer evidence on
which a reasonably jury could rely to reject P&G’s proffered explanation. Davis v.
Cintas Corp., 717 F.3d 476, 491 (6th Cir. 2013).
2. Prima Facie Case
To establish a prima facie case of discrimination, Plaintiff must establish the
following four elements: (1) She is a member of a protected class; (2) She was
qualified for the job and performed it satisfactorily; (3) Despite her qualifications
and performance, she suffered an adverse employment action; and (4) She was
replaced by a person outside the protected class or was treated less favorably than a
similarly situated individual outside of her protected class. Laster, 746 F.3d at
28
727. The Court assumes for the present purposes that Plaintiff has satisfied all four
elements of her prima facie case.
3. Legitimate, Non-Discriminatory Reason for Termination
P&G contends that Plaintiff was placed on a PIP solely because of her poor
performance, and subsequently terminated because she failed to participate in the
PIP. The record contains adequate evidence supporting the position that these
legitimate, non-discriminatory reasons served as the sole basis for Plaintiff’s
termination. See, e.g., Giovanni Decl. ¶¶ 27, 38. Therefore, P&G has satisfied its
burden of presenting an appropriate basis for its decision to place Plaintiff on a PIP
and subsequently terminate her.
4. Pretext
Because P&G offered a legitimate, nondiscriminatory reason for the adverse
employment action it took against Plaintiff, the burden shifts back to Plaintiff to
prove that P&G’s asserted reason is pretextual. At this stage, Plaintiff has the
burden to produce sufficient evidence from which a jury could reasonably reject
P&G’s explanation of why it terminated her. She can accomplish this by proving
(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate her discharge, or (3) that the proffered reasons were
insufficient to motivate discharge. Blizzard v. Marion Technical Coll., 698 F.3d
275, 285 (6th Cir. 2012).
29
Plaintiff first argues that her poor performance did not motivate the PIP and
termination because P&G did not take similar action against other subpar VAMs
with similar performance issues. In other words, Plaintiff points out that similar
records of poor performance should have resulted in similar remediation efforts by
P&G, and the fact that P&G did not place comparable employees on PIPs and
terminate them suggests that P&G did not view Plaintiff’s performance as
sufficiently problematic to warrant a PIP and termination, which in turn suggests
that some reason other than poor performance must have motivated the adverse
actions P&G took against Plaintiff.
The Court rejects this argument because Plaintiff has failed to name a
similarly situated VAM who was treated more favorably. Plaintiff argues that she
should be compared to three particular VAMs: Stephanie Campbell, Debra Kerley,
and Michael Glidewell, all of whom Plaintiff argues were not pregnant and nonminorities who experienced performance issues similar to those of Plaintiff yet
were treated more favorably than was Plaintiff. However, the record reflects that
Plaintiff’s workplace performance was significantly weaker than the workplace
performances of Campbell, Kerley, and Glidewell, and, unlike Plaintiff, Campbell,
Kerley, and Glidewell were not uncooperative with a PIP.
30
The following chart compares Plaintiff’s performance statistics with the
performance statistics of Campbell, Kerley, and Glidewell over the 2010-2011 and
2011-2012 fiscal years.
VAM
Plaintiff
Stephanie
Campbell
Debra
Kerley
Michael
Glidewell
Fiscal Year 2010-2011 Fiscal Year 2011-2012
Supervisor
Scorecard In-Person Scorecard In-Person
Ranking Sales Calls Ranking Sales Calls
34 of 38
270
38 of 42
274
Banker/Giovanni
38 of 38
741
36 of 42
797
Giovanni
21 of 38
1065
32 of 42
848
Giovanni
25 of 38
998
41 of 42
453
Neither Banker
nor Giovanni
Giovanni Decl. ¶¶ 6, 15, 18, Ex. C. Construing the performance data in the light
most favorable to Plaintiff, no reasonable jury could conclude that Plaintiff was
similarly situated to Campbell, Kerley, or Glidewell. Although some aspects of
Plaintiff’s performance statistics are similar to those of the urged comparators, the
significant difference between the number of in-person sales calls logged by
Plaintiff, on the one hand, and her purported comparators, on the other hand, alone
compels the Court to conclude that Campbell, Kerley, and Glidewell are not
similarly situated individuals.
Campbell, Kerley, and Glidewell each logged
significantly more in-person calls than did Plaintiff in two consecutive fiscal years.
For fiscal year 2010-2011, Plaintiff logged only 270 in-person sales calls,
compared to 741, 1065, and 998 logged calls by Campbell, Kerley, and Glidewell,
respectively, and the disparity is nearly as distinct for fiscal year 2011-2012, with
31
Plaintiff logging only 274 in-person sales calls, compared to 797, 848, and 453 inperson calls logged by Campbell, Kerley, and Glidewell, respectively.
Moreover, Plaintiff has not presented evidence that the three comparators
engaged in similar conduct when confronted with a PIP. The evidence indicates
that Plaintiff attempted to tape record and then walked out of a meeting with her
supervisors after learning that the purpose of the meeting was to discuss her prior
performance and ways to improve going forward.
When Plaintiff returned and
was presented with a PIP, Plaintiff complained about each aspect of it and
expressed disagreement with Giovanni’s business approach to Michigan’s northern
and western territories, believing that her approach should be followed over
Giovanni’s.3 The record reflects that Giovanni attempted to reason with Plaintiff
and explain the rationale behind his approach, but Plaintiff persisted in her belief
that her way was better and told Giovanni and Taney that she refused to visit
P&G’s customers in the northern and western regions. Giovanni also conveyed
that the requirements set forth in the PIP were flexible. Specifically, Giovanni and
Taney were open to extending the PIP beyond 30 days and negotiating the sales
goals required under the PIP. Yet, Plaintiff refused to discuss the PIP further or
3
This was not the first time Plaintiff expressed disagreement with her management
about this issue. During the March 2, 2012 teleconference between Plaintiff,
Erwin, and Banker, Plaintiff balked about Banker’s approach to Michigan’s
western territory, taking the position that the territory should not be emphasized
because the majority of business was located in Michigan’s southwest region, and
Michigan’s western region comprised “white space.”
32
“listen any longer.” Plaintiff has not attempted to present evidence showing that
another VAM was allowed to keep his or her job in light of similar instances of
insubordination, including an unwillingness to follow a business plan outlined by a
supervisor.
In other words, Plaintiff has presented no evidence rebutting
Giovanni’s attestation that he is “not aware of any employee [other than Plaintiff]
who flatly refused to participate in a PIP or who disregarded Procter & Gamble’s
warnings as to the consequences of not participating in a PIP.” Therefore, the
Court rejects Plaintiff’s argument that her poor performance was a pretext for
discrimination based on the theory that other VAMs with similar performance
issues were not placed on PIPs and terminated.
Relatedly, Plaintiff argues that her performance was adjudged by subjective,
rather than objective, standards, which should trigger “particularly close scrutiny”
of P&G’s decision to take adverse action against Plaintiff. See Bruhwiler v. Univ.
of Tenn., 859 F.2d 419, 421 (6th Cir. 1988) (employment decision is subject to
“particularly close scrutiny” when it was subjective and decision makers were not
members of minority group). However, P&G’s decision to place Plaintiff on a PIP
and ultimately terminate her resulted from both objective assessments of Plaintiff’s
performance (e.g., VAM Scorecard rankings and the number of in-person sales
calls made) and subjective assessments of Plaintiff’s performance (e.g., Plaintiff’s
conduct during the February 5, 2013 meeting).
33
Plaintiff also argues that P&G’s asserted reason for placing her on a PIP,
poor performance, is a sham because Plaintiff’s PIP was a “set up to fail.” Plaintiff
argues that the PIP included unattainable goals, goals that are inconsistent with
P&G’s policies, and required Plaintiff to perform tasks that went beyond her job
duties. These arguments are unpersuasive.
Plaintiff first asserts that the PIP “required [her] to be on the road, away
from the bulk of her business in southeast Michigan, for 30 consecutive days,” and
that this was “inconstant with P&G’s own selling strategy and business plans.” Pl.
Resp. at 27-28. Plaintiff mischaracterizes the record. In fact, the PIP required
Plaintiff to “be in the field Monday through Friday and complete a minimum of . . .
5-6 in person calls per day,” and to “make one in person call to all purchasing
clinics in Western and Northern Michigan.”
Pl. Ex. 12.
Nothing in these
requirements suggests that Plaintiff was required to be “on the road . . . for 30
consecutive days”; rather, she was required to work only Monday through Friday.
Moreover, the fact that the PIP required Plaintiff to be “away from the bulk of her
business in southeast Michigan” during the 30-day PIP period is not suspect and
not surprising because, as discussed, Plaintiff’s region covered northern and
western Michigan and the evidence indicates that P&G viewed those areas as
important but neglected by Plaintiff.
34
Plaintiff objects to the number of in-person calls that she was required to
make during the 30-day PIP period (5-6 per day), arguing that this requirement of
the PIP is “suspect.” However, the record does not support Plaintiff’s view. There
was nothing new about the requirement in the PIP that Plaintiff make 5-6 in-person
sales calls per day (i.e., 20-25 per week and 100-120 per month). Giovanni told
Plaintiff during their June 1, 2012 conference that the goal should be 20-25 inclinic calls per week, and Giovanni again emphasized this requirement to Plaintiff
on July 25, 2012, and then once again on January 14, 2013. The undisputed
evidence reveals that this was part of Plaintiff’s job, a fact that Plaintiff admitted in
her deposition. Pl. Dep. at 172 (answering “[y]es” to the question, “five to six in
person calls per day is the standard for all VAM’s, isn’t it?”).
Plaintiff also complains that the duration of the PIP – 30 days – was
unusually short. However, Taney testified that PIPs are “typically 30, 60 or 90
days,” Taney Dep. at 34, and the PIP itself contains an explanation for the 30-day
duration. Pl. Ex. 12 (“We have elected a 30 day PIP in lieu of longer time period,
because the goals and actions required in this PIP are the minimum day-to-day
expectations for all Band 1 Veterinary Account Managers and therefore, we see no
obstacle to [Plaintiff] being able to successfully meet the action steps of the PIP in
a 30 day timeframe.”). In addition, during the February 5, 2013 meeting between
Plaintiff, Giovanni, and Taney, Giovanni offered to afford Plaintiff more time
35
beyond 30 days to complete one of the main requirements of the PIP – visiting
clinics in Michigan’s northern and western regions.
For all these reasons, Plaintiff has not impugned P&G’s legitimate,
nondiscriminatory reason for placing her on a PIP by showing that the PIP was a
“set up to fail.”
Plaintiff next argues that P&G refused to recognize three ways in which it
hindered Plaintiff’s ability to make in-person sales calls in the 2011-2012 fiscal
year, yet unfairly used Plaintiff’s lack of in-person calls against her to justify the
decision to place Plaintiff on a PIP. According to Plaintiff, P&G hindered her
ability to make in-person sales calls by: (1) requiring her to attend three
conferences that took her out of the field in July 2011, thus interfering with her
ability to make in-person calls in that month; (2) telling her not to record all of her
sales activity from October 2011 to February 2012; and (3) prohibiting her from
traveling from June to September 2012. Plaintiff contends that P&G’s failure to
recognize these three restraints – all of which were imposed by P&G – suggests
that one of its asserted legitimate reasons for placing Plaintiff on a PIP – a lack of
in-person sales calls – did not actually motivate the decision. The Court rejects
this argument.
Regarding the first restraint, the Court notes that Plaintiff’s in-person call
numbers were evaluated relative to other VAMs. Therefore, Plaintiff’s attendance
36
at conferences would only adversely affect her performance ratings to the extent
that other VAMs were also not required to attend similar events that took them out
of the field. Plaintiff has produced no evidence showing the extent to which other
VAMs engaged in work activities that took them out of the field.
Moreover, Plaintiff’s attestation that Banker told her not to log all of her
sales activity from October 2011 to February 2012, made in an affidavit submitted
in connection with these summary judgment proceedings, was oddly not mentioned
by Plaintiff when she was asked in her deposition why she did not follow Banker’s
written instruction to “LOG EVERYTHING IN SALESFORCE” during fiscal year
2011-2012:
Q: So July 2011 to February 2012, you reported to [Banker], correct?
A: Yes.
Q: And she wrote an e-mail as we have went through several times,
to your team, saying, log everything in Salesforce. Do you remember
that? . . .
A: Yes.
Q: But your testimony is you didn’t comply with that, correct?
A: Correct.
Q: And why is that?
A: I just didn’t.
37
Pl. Dep. at 128. Had Banker really told Plaintiff not to log all of her activity in
Salesforce.com, as Plaintiff attested in paragraph three of her affidavit, Plaintiff
had the perfect opportunity to say so, instead of her answer, “I just didn’t.”
Although this does not amount to a direct contradiction between the affidavit and
deposition testimony, as P&G urges, the Court is inclined to conclude, based on
the factors set forth in Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) and
adopted by the Sixth Circuit in Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899,
908-09 (6th Cir. 2006), that paragraph three of the affidavit “constitutes an attempt
to create a sham fact issue” such that it may be disregarded by the Court in these
summary judgment proceedings.4
In any event, even if the Court credited Plaintiff’s attestation that Banker
instructed her not to log all of her sales activity in Salesforce.com from October
2011 to February 2012, the Court, construing the facts in the light most favorable
In Aerel, the Sixth Circuit adopted the test set forth in Franks for determining
whether a post-deposition affidavit “constitutes an attempt to create a sham fact
issue” and thus may be disregarded:
4
Factors relevant to the existence of a sham fact issue include whether
the affiant was cross-examined during his earlier testimony, whether
the affiant had access to the pertinent evidence at the time of his
earlier testimony or whether the affidavit was based on newly
discovered evidence, and whether the earlier testimony reflects
confusion which the affidavit attempts to explain.
Franks, 796 F.2d at 1237. The three non-exhaustive Frank factors weigh in favor
of the conclusion that paragraph three of Plaintiff’s post-deposition affidavit
amounts to an attempt to create a sham fact issue.
38
to Plaintiff, would still reject Plaintiff’s argument that P&G’s failure to
acknowledge Banker’s instruction undermines one of its reasons for implementing
the PIP. As P&G points out, even excluding the time period during which Plaintiff
was allegedly instructed not to log all of her sales activity, Plaintiff still made by
far the lowest number of in-person sales calls during the 2011-2012 fiscal year.
Giovanni attested that Plaintiff “had the lowest number of in-person calls of any of
the VAMs I supervised” from March 1, 2012 to June 30, 2012. Giovanni Decl. ¶
19. According to Giovanni: “During that time period, Roger Cain made 305 inperson calls, Deb Kerley made 282 in-person calls, Stephanie Campbell made 276
in-person calls, Stu Miller made 235 in-person calls, and [Plaintiff] made 136 inperson calls.” Id. This unrebutted evidence demonstrates that P&G had ample
reason to place Plaintiff on a PIP based on her call numbers in the 2010-2011 fiscal
year, along with her call numbers in fiscal year 2011-2012, excluding the months
Banker purportedly told Plaintiff not to record all of her sales activity.
Finally, Plaintiff’s medical restrictions from June to September 2012 did not
have any impact on her in-person call numbers for fiscal year 2010-2011, which
ended before Plaintiff became pregnant, and did not have a substantial impact on
her in-person call numbers for fiscal year 2011-2012. Notably, the 2011-2012
fiscal year ended on June 30, 2012 and Plaintiff’s medical restrictions did not
begin until mid-June 2012. Therefore, at most, Plaintiff’s medical restrictions
39
affected her in-person call numbers for just two weeks out of the entire fiscal year,
which is not a long enough time period to substantially impact the numbers,
especially given how low Plaintiff’s in-person call numbers were compared to the
VAM with the next highest number. In any event, for most of the time during
which Plaintiff was medically restricted prior to her maternity leave, the
restrictions did not prevent Plaintiff from making the required number of daily inperson calls.
In sum, construing the evidence in the light most favorable to
Plaintiff, Plaintiff has not established that her medical restrictions had anything
more than a de minimus impact, if that, on her in-person call numbers during either
of the two fiscal years in question.
For these reasons, no reasonable jury could conclude that P&G unfairly
evaluated Plaintiff’s performance, calling into question P&G’s legitimate,
nondiscriminatory rationale for placing Plaintiff on a PIP, by failing to consider
restrictions placed on her that purportedly stunted her in-person call numbers.
Finally, Plaintiff argues that there was a “corporate culture” of
discrimination and retaliation at P&G, and that this workplace culture supports her
argument that P&G’s legitimate, nondiscriminatory reason for placing her on a PIP
and ultimately terminating her is pretextual. See Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998) (“Circumstantial evidence
establishing the existence of a discriminatory atmosphere at the defendant’s
40
workplace in turn may serve as circumstantial evidence of individualized
discrimination directed at the plaintiff.”). In support of her argument, Plaintiff
contends that P&G “ignored and dismissed” her complaints of discrimination,
focusing on how Erwin handled Plaintiff’s complaints, essentially arguing that
Erwin did not take them seriously. Plaintiff also discusses the manner in which her
first Alertline complaint was handled and the actions (or inactions, according to
Plaintiff) that P&G took afterwards. Finally, Plaintiff argues that P&G rewarded
Banker for her conduct by giving her a raise and otherwise treating her favorably.
However, for the following reasons, the record does not support Plaintiff’s position
that there was a corporate culture of discrimination and retaliation at P&G.
Plaintiff first complained to Klette of “verbal abuse and harassment” by
Banker on February 7, 2012, stemming from the January 5, 2012 telephone call
between Plaintiff and Banker. After Klette and Plaintiff spoke, Klette turned the
matter over to Erwin, the appropriate human resources contact for Plaintiff’s
division.
At this point, there is no evidence that Plaintiff alleged racial
discrimination by Banker; rather, the gist of Plaintiff’s complaint at the time was
that Banker treated the women on her team worse than the men, and that Banker
acted in an unprofessional manner during her January 5, 2012 phone conference
with Plaintiff. After a conference on March 2, 2012 between Erwin, Plaintiff, and
Banker during which Plaintiff’s complaints about Banker were noted but not
41
addressed, Erwin initiated an investigation regarding Plaintiff’s complaints, which
began with a conversation on March 13, 2012 between Erwin and Plaintiff about
Plaintiff’s concerns with Banker.
While Plaintiff is quick to point out that Erwin was not sure at this point
whether Plaintiff was asserting a discrimination complaint, the fact remains that
Erwin did pursue an investigation of Plaintiff’s complaints and sought additional
information from Plaintiff. Indeed, the next day, in an email recapping their
conversation the day before, Erwin assured Plaintiff that she would be conducting
an investigation into Plaintiff’s complaints. As part of that investigation, Erwin
and Giovanni attempted to obtain further information from Plaintiff through
follow-up questions to be asked in a conference between Plaintiff, Erwin, and
Giovanni.
However, Plaintiff refused to discuss the matter with Erwin and
Giovanni and declined to participate in the conference call, asserting for the first
time a claim of “racial discrimination” and reiterating her prior claim of
“harassment.” The next day, Plaintiff formalized her complaint through P&G’s
Alertline system, and P&G took two actions shortly thereafter: It appointed two
investigators to conduct a formal investigation of Plaintiff’s allegations, and it
reassigned Plaintiff so that she would not have contact with the two individuals
who were the subject of the complaint – Banker and Erwin.
42
Although Plaintiff argues that P&G did not take appropriate action against
Banker in response to the findings of Sargeant and Johnson that “a culture of fear
and retaliation exists with the three female members of Marci Banker’s team,”
Plaintiff ignores the fact that Erwin and Walsh removed Banker from her
managerial role for 60 days and required her to attend a leadership conference.
Moreover, Plaintiff faults P&G for requiring her to report to Giovanni in light of
Sargeant and Johnson’s mention of an incident in which Giovanni told another
employee that it was “not a good idea” to complain about Banker to human
resources. However, Plaintiff was actually pleased to be working with Giovanni as
of May 16, 2012, when Plaintiff emailed Sargeant writing that Giovanni’s “support
and dedication to my success has been exceedingly apparent” and that working
with him has been “very professional experience.” In any event, other than the
report of Sargeant and Johnson, there is no admissible evidence that Giovanni told
another employee not to complain to human resources about Banker and, even if
there was such evidence, the fact remains that Giovanni assured Plaintiff during a
discussion on June 1, 2012 that P&G would “not tolerate any form of retaliation”
and invited Plaintiff to “share any more negative experiences” with him “at
anytime.”
Simply put, the record does not support Plaintiff’s argument that P&G
“ignored” or “dismissed” Plaintiff’s complaints of discrimination. Rather, the
43
evidence shows that P&G promptly responded to Plaintiff’s complaints, attempted
to obtain more information from Plaintiff, was eager to assist Plaintiff in resolving
her issues with Banker, conducted a formal investigation involving numerous
employee interviews, and took remedial steps to correct the issues uncovered in the
investigation.5 Accordingly, the Court concludes that no reasonable jury could
find that a corporate culture of discrimination and retaliation existed at P&G, and
Plaintiff therefore has not demonstrated pretext through this approach.
For these reasons, Plaintiff has not offered evidence on which a reasonable
jury could rely to reach the conclusion that P&G’s asserted reasons for the
termination, performance issues and failure to comply with the PIP, are pretextual.
Thus, the Court will grant summary judgment to P&G regarding Plaintiff’s claims
of race and pregnancy discrimination under Title VII and ELCRA.
B. Retaliation Claim Under Title VII and ELCRA
Title VII’s anti-retaliation provision makes it “an unlawful employment
practice for an employer to discriminate against any of his employees . . . because
[the employee] has opposed any practice made an unlawful employment practice
5
Plaintiff makes much of the fact that Banker received a $5,000 raise near the end
of 2012 and was treated favorably the next year in terms of her ability to change
positions within P&G, arguing that P&G rewarded the conduct of an employee
who was found to have acted inappropriately. However, the specific circumstances
of Banker’s raise are unknown, except that Banker testified that she received it for
“good” performance, and Plaintiff’s belief that the raise served as a reward for bad
behavior is speculative and unsupported by any evidence.
44
by this subchapter.” 42 U.S.C. § 2000e-3(a). Michigan law contains a similar
prohibition. See Mich. Comp. Laws. § 37.2701(a). Retaliation claims under
ELCRA are analyzed using the same legal framework as Title VII retaliation
claims. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013).
As Plaintiff has offered no direct evidence of retaliation, she must proceed
using the McDonnell Douglas burden-shifting framework. Under this framework,
Plaintiff has the initial burden to establish a prima facie case of retaliation, which
consists of four elements: (1) Plaintiff engaged in activity protected under Title
VII; (2) Plaintiff’s exercise of her protected rights was known to P&G; (3) an
adverse employment action was subsequently taken against Plaintiff; and (4) there
was a causal connection between the protected activity and the adverse
employment action. If Plaintiff establishes the elements of her prima facie case,
the burden of production shifts to P&G to rebut the presumption by articulating a
legitimate, nondiscriminatory reason for its action. If P&G successfully produces
such a legitimate reason, then the burden of production returns to Plaintiff to
demonstrate by a preponderance of the evidence that the proffered reason was a
mere pretext for discrimination. Id. at 674-75.
P&G argues that Plaintiff’s retaliation claims fail because she cannot
demonstrate a genuine issue of material fact with regard to the fourth element of
her prima facie case (causation) and pretext. For the reasons discussed above,
45
Plaintiff has failed to come forward with evidence that would allow a reasonable
jury to find that the legitimate, non-discriminatory reasons asserted by P&G for
placing Plaintiff on a PIP and terminating her were a pretext for discrimination.
Therefore, Plaintiff’s retaliation claims fail for this reason alone.
Even had Plaintiff demonstrated a fact issue with regard to pretext, her
retaliation claims would still fail because, as P&G correctly argues, Plaintiff has
not demonstrated a fact issue with regard to the fourth element of her prima facie
case, requiring her to show a causal connection between her protected activity and
the adverse employment actions taken by P&G. To do so, Plaintiff must show that
P&G’s “desire to retaliate was the but-for cause of the challenged employment
action.” See Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
P&G concedes that Plaintiff’s first Alertline complaint, filed on March 15,
2012, constitutes protected activity, and that Plaintiff’s placement on a PIP, which
occurred on February 5, 2013, constitutes an adverse employment action for
purposes of Plaintiff’s retaliation claims. Plaintiff does not dispute the timing of
her protected activity relative to the adverse employment action. Because nearly
eleven months elapsed between Plaintiff’s protected activity and an adverse
employment action, Plaintiff does not, and could not, rely on the temporal
proximity of the two events in support of her causation argument. See, e.g.,
Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (“loose temporal proximity”
46
of “two to five months” between protected activity and adverse employment action
deemed “insufficient to create a triable issue”).
Instead, Plaintiff relies on other factors to support causation. Plaintiff claims
that issues with her performance were first brought to her attention soon after she
first complained to Klette about Banker’s behavior – timing that Plaintiff believes
is suspect and demonstrates P&G’s retaliatory mindset. However, Plaintiff is
wrong on the timing. In fact, performance issues were first brought to Plaintiff’s
attention on August 23, 2011, well before Plaintiff first complained about
discrimination, harassment, or retaliation. On August 23, 2011, Banker sent an
email to Plaintiff indicating that she “can’t understand how you [Plaintiff] are
logging things [in Salesforce.com]” and reminding Plaintiff that “[y]ou should
have more in person calls than phone calls.” Plaintiff did not first complain about
discrimination or harassment until February 7, 2012, when she emailed Klette
asking if the two could discuss “a private matter.”
The remaining arguments asserted by Plaintiff in support of the causation
element of her prima facie case are duplicative of the arguments asserted by
Plaintiff in the section of her brief devoted to pretext. Those arguments have
already been addressed and rejected by the Court.
47
Because Plaintiff has not demonstrated a triable issue with regard to the
fourth element of her prima facie case or pretext, the Court will grant summary
judgment to P&G on Plaintiff’s retaliation claims under Title VII and ELCRA.
C. Plaintiff’s FMLA Claims
The FMLA permits qualifying employees to take twelve weeks of unpaid
leave each year “[b]ecause of the birth of a son or daughter of the employee and in
order to care for such son or daughter.” 29 U.S.C. § 2612(a)(1)(A). On return
from FMLA leave, the employee is entitled to be restored to either “the position of
employment held by the employee when the leave commenced” or “an equivalent
position with equivalent employment benefits, pay, and other terms and conditions
of employment.” Id. § 2614(a)(1).
Two
recovery
theories
are
available
under
the
FMLA:
an
interference/entitlement theory pursuant to 29 U.S.C. § 2615(a)(1), and a
retaliation/discrimination theory pursuant to 29 U.S.C. § 2615(a)(2). Seeger v.
Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012). Under the
interference theory, “[t]he issue is simply whether the employer provided its
employee the entitlements set forth in the FMLA – for example, a twelve-week
leave or reinstatement after taking a medical leave.” Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 159 (6th Cir. 1998). Conversely, retaliation claims under the
FMLA “impose liability on employers that act against employees specifically
48
because those employees invoked their FMLA rights.” Edgar v. JAC Prods., Inc.,
443 F.3d 501, 508 (6th Cir. 2006).
In her amended complaint, Plaintiff asserts both an interference claim and a
retaliation claim under the FMLA. However, P&G notes in its summary judgment
motion that Plaintiff does not allege any facts supporting her interference claim
and, in her response brief, Plaintiff does not dispute this observation or otherwise
mention an FMLA interference claim. Therefore, Plaintiff has abandoned the
claim and the Court will dismiss it.
Plaintiff does, however, pursue her FMLA retaliation claim. Plaintiff claims
that she was placed on a PIP and terminated because she took FMLA leave. The
McDonnell Douglas burden-shifting framework applies to FMLA retaliation
claims:
To establish a claim of retaliation, a plaintiff must demonstrate that
(1) she engaged in a protected activity, i.e. notifying the defendant of
her intent to take leave under the FMLA; (2) she suffered an adverse
employment action; and (3) that there was a causal connection
between the exercise of her rights under the FMLA and the adverse
employment action. If a plaintiff’s claim is based on circumstantial
evidence, McDonnell Douglas Corp. v. Green’s burden-shifting
analysis applies. The burden then shifts to the defendant to articulate
some legitimate, nondiscriminatory reason for terminating the
plaintiff. The plaintiff then has the burden of showing that the
defendant’s reasons are merely a pretext for discrimination.
Judge v. Landscape Forms, Inc., 592 F. App’x 403, 408-09 (6th Cir. 2014)
(quotation marks, brackets, and citations omitted).
49
In its summary judgment motion, P&G argues that Plaintiff cannot
demonstrate a fact issue regarding the third element of her prima facie case –
causation. P&G also argues that Plaintiff cannot show that the legitimate reason
offered by P&G in support of its termination decision is pretextual. For reasons
already discussed, Plaintiff has not demonstrated a fact issue with regard to pretext.
Thus, her FMLA retaliation claim fails for this reason alone.
In any event, even if Plaintiff satisfied her burden on pretext, her FMLA
retaliation claim would still fail because Plaintiff cannot satisfy the fourth element
of her prima facie case, which requires Plaintiff to show a causal connection
between the exercise of her rights under the FMLA and her termination.
In
arguing that P&G’s termination decision resulted from Plaintiff’s decision to take
FMLA leave, Plaintiff points out that she was placed on a PIP and terminated on
February 5, 2013, only a month after Plaintiff returned from her FMLA leave on
January 4, 2013. However, the Sixth Circuit has cautioned against “drawing an
inference of causation from temporal proximity alone,” Vereecke v. Huron Valley
Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010), unless the employer “retaliate[s]
swiftly and immediately upon learning of protected activity,” leaving the employee
“unable to couple temporal proximity with any such other evidence of retaliation
because the two actions happened consecutively.” Mickey v. Zeidler Tool & Die
Co., 516 F.3d 516, 525 (6th Cir. 2008).
50
Here, although Plaintiff’s burden at the prima facie stage “is not intended to
be an onerous one,” Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309, 315
(6th Cir. 2001), the Court concludes that Plaintiff cannot rely on temporal
proximity alone and must instead couple temporal proximity with other indicia of
retaliatory animus to satisfy the causation element of her prima facie case.6
In addition to temporal proximity, Plaintiff offers several actions by P&G,
all of which she contends are indicative of P&G’s retaliatory motive.
First,
Plaintiff states that “Giovanni and Taney . . . repeatedly attempted to force [her] to
take early FMLA leave without a guarantee that her job would be protected.” Pl.
Resp. at 34. However, the evidence reveals that P&G attempted to accommodate
Plaintiff’s medical situation by allowing her to take a total of two additional
months of FMLA leave over and above the three months that the statute requires.
In his August 20, 2012 email to Plaintiff, Giovanni told Plaintiff that P&G
“anticipate[s] being able to effectively manage your territory during your period of
absence.” In asserting that P&G would not “guarantee that her job would be
6
As stated, courts do not require other evidence of retaliatory animus in addition to
temporal proximity in cases where little or no time elapses between the protected
activity and adverse employment action because, otherwise, a plaintiff could never
show causation, as there is insufficient time for an employee to glean additional
evidence of retaliation. In the present case, while only one month elapsed between
Plaintiff’s return from FMLA leave and the adverse employment action, a lot
happened in that month in terms of Plaintiff’s interaction with her supervisors,
leaving Plaintiff with ample opportunity to glean a retaliatory motive if one
existed.
51
protected,” Plaintiff may be relying on Giovanni’s statement that P&G may have to
“backfill[]” Plaintiff’s role if “the timing of [her] leave would extend greatly
beyond this time.” However, Giovanni was merely advising Plaintiff that P&G
may have to replace her if she was on leave for longer than five months – two
months longer than the FMLA requires – and Giovanni even told Plaintiff that
P&G “would of course, come to you first to see if you were ready to return before
backfilling your role.”7 In sum, P&G was generous with Plaintiff by extending her
greater protections than the statute requires. See Edgar, 443 F.3d 501, 506-07
(“This court has . . . held that an employer does not violate the FMLA when it fires
an employee who is indisputably unable to return to work at the conclusion of the
12-week period of statutory leave.”).
Second, Plaintiff argues that a retaliatory motive can be shown because P&G
“demanded a list of all possible [medical] restrictions [and] told [Plaintiff] not to
Plaintiff testified that Taney tried to “force” her to take early FMLA leave.
Accepting this testimony as true, as the Court must, Plaintiff fails to explain how
or why such pressure suggests an intent to retaliate against Plaintiff for taking
leave. Insofar as Plaintiff is claiming that P&G interfered with her rights under the
FMLA by forcing her to take early FMLA, the claim fails as a matter of law
because Plaintiff’s medical restrictions prohibiting any work travel prevented her
from performing the essential functions of her job, which required travel, and there
was no subsequent, unsuccessful attempt to take FMLA leave. See Kleinser v. Bay
Park Cmty. Hosp., 793 F. Supp. 2d 1039, 1045 (N.D. Ohio 2011) (“A plaintiff who
is forced to enter continuous FMLA leave will have an actionable claim only if (1)
the employee, when placed on involuntary leave, did not have a serious health
condition that precluded her from working, and (2) the employee unsuccessfully
seeks FMLA leave that has already been expended during an earlier, wrongful
forced leave.”).
7
52
travel or work.” Pl. Resp. at 34 (emphasis in original). However, there is nothing
to suggest that P&G harbored any retaliatory motive towards Plaintiff when it
asked Plaintiff to provide additional details on her work restrictions and prohibited
her from traveling and working. In fact, the evidence suggests that P&G requested
further medical details of Plaintiff because it was genuinely concerned for
Plaintiff’s workplace safety, as P&G’s documented requests for further details on
Plaintiff’s restrictions also contain statements of concern for Plaintiff’s workplace
safety. In mid-June 2012, Plaintiff submitted a doctor’s note stating “that she
should not be traveling.” Because Plaintiff’s position involved travel, Breedon
reasonably asked for more detailed information about the travel restrictions
contemplated by Plaintiff’s doctor, writing that “[i]t is imperative that you remain
safe at work.” Plaintiff then submitted a more detailed doctor’s note stating that
Plaintiff should “stay close to home” and only travel by car “3-4 hours with a break
every hour.” In response to the new restriction, Giovanni reasonably told Plaintiff
“not to conduct any overnight travel in your territory” and “to continue working
locally focusing on calling on 5-6 clinics in person per day and be sure to stay
within your medical/travel restrictions that are in place today.” Then on August
15, 2012, Plaintiff’s doctor submitted an additional work limitation preventing
Plaintiff from doing any work travel “through the duration of her maternity leave.”
In response to this, Giovanni told Plaintiff that her “health is very important to us
53
and we want to ensure you follow all required restrictions,” explaining to Plaintiff
that P&G could not accommodate the new medical restriction and that Plaintiff
would need to begin her FMLA leave, while also offering to afford Plaintiff two
extra months of FMLA leave beyond the three months required by the statute.
When Plaintiff’s doctor subsequently eased Plaintiff’s restrictions on August 22,
2012, permitting her to travel again, Plaintiff was allowed to return to her VAM
duties. There is simply nothing in this chronology of events on which a reasonable
jury could rely to reach the conclusion that P&G was acting out against Plaintiff
for taking FMLA leave. Although Plaintiff testified that Giovanni and Taney
asked her “four or five times” to provide additional details regarding her current
and anticipated work limitations, there is nothing to indicate that they did so for
any reason other than out of concern for Plaintiff’s workplace safety.
Third, Plaintiff argues that P&G acted with a retaliatory animus when it
“characterized her resistance to . . . early [FMLA] leave as performance
deficiencies.”
Pl. Resp. at 34.
Although Plaintiff does not expand on this
argument, the Court believes that Plaintiff is referring to Giovanni’s July 30, 2012
email to Walsh in which Giovanni notes various issues with Plaintiff’s
performance. However, Plaintiff’s performance was not deemed deficient because
she was resistant to FMLA leave; Plaintiff’s performance was deemed deficient
54
because Giovanni did not believe that she had followed P&G’s instructions with
regard to the submission of her medical paperwork.
Finally, Plaintiff argues that she was forced to “work from home instead of
taking vacation” prior to her maternity leave. However, the evidence demonstrates
otherwise. Although Giovanni denied Plaintiff’s request to take vacation in the
two weeks preceding her maternity leave, which began on October 3, 2012, he
allowed Plaintiff to take eleven days of vacation from October 3, 2012 through
October 18, 2012, and then to begin her FMLA leave on October 19, 2012.
Plaintiff does not explain why she believes Giovanni acted unfairly, to Plaintiff’s
detriment, in his handling of her pre-maternity vacation request.
Construing the evidence in the light most favorable to Plaintiff, the Court
concludes that no reasonable jury could find that P&G’s actions are indicative of a
retaliatory motive. Therefore, Plaintiff has not demonstrated a fact issue with
regard to the fourth element of her prima facie case requiring her to show a causal
connection between protected conduct and adverse employment action. For that
reason, and because Plaintiff has not presented a fact issue on pretext, the Court
will grant summary judgment to P&G on Plaintiff’s FMLA retaliation claim.
V. CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment is
GRANTED in its entirety.
55
Dated: April 6, 2015
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Charlotte Croson, Esq.
Kathleen L. Bogas, Esq.
Michael Aldana, Esq.
Nicholas O. Anderson, Esq.
Timothy H. Howlett, Esq.
56
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