Darden v. AT&T Corp., et al

Filing 50

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (ECF No. 35 ) is GRANTED as to Counts III and V pertaining to Plaintiffs claims under the Family Medical Leave Act. IT IS FURTHER ORDERED that Count II a gainst AT&T Corp. is DISMISSED with prejudice. IT IS FURTHER ORDERED that Plaintiffs state law claims under the MHRA, Counts I and IV are DISMISSED without prejudice. A separate Judgment will accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 01/14/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MESCHELE DARDEN,
Plaintiff,
v.

AT&T CORP., et al.,
Defendant.

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No. 4:14CV1198 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Defendants' Motion for Summary Judgment (ECF No.
35). The motion is fully briefed and ready for disposition. Upon review of the motion and
related documents, the Court finds that summary judgment in favor of the Defendants is
appropriate.

I. Background
Plaintiff Meschele Darden worked as a Leveraged Service Representative for Defendant
Southwestern Bell Telephone Company ("SWBTC") at AT&T's Call Center in Kirkwood,
Missouri, from September 11 , 2009 through January 24, 2014. (Defs.' Statement of
Uncontroverted Material Facts ("SUMF") ii 1, ECF No. 37) AT&T Corp. was not Plaintiffs
employer. (Id. at ii 2) Plaintiffs job responsibilities included answering calls from customers
with questions or concerns about AT&T' s products and services. She also helped customers so
they would not disconnect their AT&T service, as well as sold additional AT&T products and
services. (Id. at ii 3) Defendant Sharon Hyche ("Hyche") was a Sales Coach and Plaintiffs
immediate supervisor from February 2012 until January 24, 2014. (Id. at ii 4)

On or about August 6, 2013, Plaintiff received a Written Reminder for her behavior in the
workplace. (Id. at if 5) Plaintiff denied that she was disrespectful toward Hyche. (Pl. 's
Response to Defs. ' SUMF if 5, ECF No. 44) On August 12, 2013, Darden was placed on a
Decision Making Leave (DML) for workplace behavior, but Plaintiff denied that she displayed
any unacceptable behavior. (Defs.' SUMF if 6; Pl. ' s Response if 6) Plaintiff returned from her
DML on August 15, 2013 and committed to doing her job, following her supervisor' s directions,
and complying with the company' s policies. (Defs. ' SUMF if 8) Plaintiff took leave under the
Family Medical Leave Act ("FMLA") from August 19 to August 23 , 2013 and from September 9
to September 16, 2013. (Id. at iii! 9-10) While Plaintiff was gone, other employees heard Hyche
comment that she would have a big surprise for employees out on FMLA leave when they
returned, but she could not let the genie out of the bottle. (Pl. ' s Statement of Additional
Disputed Material Facts ("SAMF") iii! 15-16, 18, ECF No. 42) One employee sent Plaintiff a
text message relaying this information, which prompted Plaintiff to report the comments. (Pl. ' s
SAMF iii! 23-24) On September 13, 2013, Plaintiff made a complaint through the company' s
internal hotline about Hyche being unprofessional and untruthful, as well as making comments
about employees out on FMLA leave. (Defs.' SUMF if 11 ; Pl. ' s Response if 11)
Human resources conducted an investigation into the matter. (Pl. ' s SAMF if 28) Several
employees interpreted Hyche' s comment to mean that employees using FMLA leave without a
good reason would be retaliated against. (Id. at iii! 17-19, 33-34, 37-38) However, Hyche denied
making such comments. (Id. at if 41) Plaintiff indicated in her deposition that other employees,
Aisha, Nina, Shontae, and Timothy were retaliated against for using FMLA leave. (Darden Dep.
340:1-9, Pl. ' s SAMF Ex. 7, ECF No. 42-7) Plaintiff testified that Aisha, Nina, and Tim took

2

FMLA leave and were gone not long after, but she did not know the reasons. (Id. at 336:6337:4) She thought they filed charges of discrimination. (Id. at 337:5-338:2)
Mark McDonald, a fellow service representative and union steward stated that he
witnessed Defendants retaliate against Plaintiff and other employees named Lindsey, Heather,
Latasha, as well as some whose names he could not remember, for using FMLA leave.
(McDonald Dep. 7:20-8:24, Pl. ' s SAMF Ex. 8, ECF No. 42-8) Mr. McDonald did not work
under Hyche at any time. (Id. at 9:10-11) Lindsey took FMLA leave while working on a
different team, was transferred to Hyche' s team, and terminated two to three months later. (Id. at
17:2-18:18) Heather was not on Hyche's team but was put on DML after she returned for giving
a non-canceling customer a promotion. (Id. at 21 :9-22:11) Mr. McDonald heard about other
employees that took leave and then filed a sexual harassment suit against a different manager.

(Id. at 22:22-26:24) Mr. McDonald was discharged from his job but did not believe the
termination was based on his FMLA use. (Id. at 19:15-21) Shontae Davis also believed that
Hyche retaliated against her for using FMLA leave because Davis' sales objectives were not
calculated with the team numbers and because she was pulled into a meeting for not reaching her
numbers for the month. (Davis Dep. 12:21-13-4; 20:1-21-7, Pl.'s SAMF Ex. 10, ECF No. 42-10)
She was not terminated from her employment as service representative but separated from the
company on long-term disability. (Id. at 8:11-18)
On September 17, 2013 , Plaintiff was asked to have a meeting regarding a Q dialogue.

(Id.

at~

47; Pl.'s SAMF Ex. D, ECF No. 42-4) The Q note indicated that Plaintiff was upset that

Hyche did not forward a call Plaintiff was expecting to a lead when Plaintiff was out. (Pl.' s
SAMF Ex. D) When Hyche approached Plaintiff, she threw up her hands, refused to talk to

3

Hyche, and told her that Hyche could not talk to her in an unprofessional manner. (Id.) Plaintiff
received a DML reminder but nothing more happened to Plaintiff. (Darden Dep. 259:9-13)
In October 2013 , Plaintiff called into AT&T' s customer service department regarding her
personal account. (Pl.' s SAMF ~ 65) Plaintiff indicated she was having technical problems and
was going to disconnect her service. (Hyche Dep. 157:9-158:2, Pl. ' s SAMF Ex. 12, ECF No.
42-12) The customer representative asked Hyche to add a 50 percent off retention promotion,
which Hyche did, even though she did not recall adding the promotion to Plaintiffs account.

(Id. at 159:4-160:7) Hyche later investigated the incident and gave Plaintiff a DML reminder;
however, Hyche included the event but not the facts in Plaintiffs termination. (Id. at 160:16161 :7) In addition, Hyche later removed the promotion because it was not available and was
improperly applied to Plaintiff. (Id. at 164: 14-17)
On November 27, 2013 , Plaintiff filed a charge of discrimination against "AT&T, Inc."
alleging that Hyche, who is an African American female, was harassing Plaintiff based on her
African American race and her sexual orientation. Plaintiff also alleged that Hyche retaliated
against Plaintiff for filing grievances through the union. (Defs. ' SUMF ~ 12)
On December 5, 2013 , Anita Williams, who worked as a Sales Coach outside the
Kirkwood Call Center, forwarded instant messages between Plaintiff and another representative
named Don to Hyche and Hyche's supervisor Jeffrey ("B.J.") Taylor ("Taylor"). These Q
messages pertained to Plaintiff not receiving credit for an order that Don placed. (Id.

at~

13)

Plaintiff also believed that Don gave the customer false information. (Pl. ' s Response ~ 13) After
receiving Williams' email, Hyche investigated by talking with Plaintiff and reviewing the calls
and service orders. (Defs. ' SUMF ~ 15) Hyche believed that Plaintiff contacted the customer to
have him cancel the order the customer placed with Don. Hyche also believed that Plaintiff had

4

the customer cancel with another representative and then call Plaintiff to reissue the order so
Plaintiff could receive the sales credit. Further, Hyche believed Plaintiff gave the customer
additional discounts not included in the original order. (Id.

at~

16) Plaintiff knew that

performing a cancel/reissue order without Hyche's permission would be a COBC violation and
acknowledged she should have handled the situation differently. (Darden Dep. 310:23-302:6,
305:19-306:5) However, Plaintiff contends that Hyche treated Plaintiff differently than other
employees and used this as an opportunity to retaliate against her for using FMLA leave. (Pl.' s
Response ~ 16) Plaintiff stated in her deposition that she was pretty sure Jade Settle never took
FMLA leave yet cancelled and reissued orders. (Darden Dep. 349:16-350:5)
Defendant SWBTC has a Code of Business Conduct ("COBC"), on which Plaintiff
received training. (Defs. ' SUMF ~~ 17-180) The COBC states Defendant's employees are
committed to the Code; are honest and act with integrity; and apply the code to work every day
in an ethical manner. (Id.

at~~

19-21) Employees understand that violations of the COBC may

result in discipline, including termination of employment. (Id. at ~ 21) Hyche believed that
Plaintiff's conduct violated the COBC policy and placed Plaintiff on suspension on December
16, 2013 until General Manager Kevin Gonzalgo ("Gonzalgo") could meet with Plaintiff. (Id. at
~~

22-23) Plaintiff believed that Hyche used the COBC as an excuse to terminate Plaintiff's

employment in retaliation for Plaintiff using FMLA leave. (Pl.' s Response ~ 22) Hyche
recommended that Plaintiff be discharged for violating the COBC policy. (Defs. ' SUMF ~ 25)
On January 23 , 2014, Plaintiff and her union representatives met with Gonzalgo, Taylor, and
Hyche. (Id.

at~

26) After meeting with Plaintiff, Taylor agreed with the recommendation to

terminate Plaintiff's employment, and Gonzalgo made the final decision to terminate Plaintiff's
employment. (Id.

at~~

27-28) Gonzalgo was complimentary of Plaintiff, and he indicated that

5

he had kept an eye on Plaintiffs results but that Plaintiff had not been in the office when he
visited, which was disheartening. (Pl. ' s SAMF Ex. E, ECF No. 42-5) On January 24, 2014,
Plaintiffs employment with SWBTC ended. (Defs. ' SUMF ii 29) At that time, the supervisors
were unaware that Plaintiff filed a charge of discrimination in November 2013 , although human
resources knew of Plaintiffs intent to file the charge. (Defs. ' SUMF ii 30; Pl. ' s Response ii 30)
On March 18, 2014, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission ("EEOC") and the Missouri Commission on Human
Rights ("MCHR") stating that she was discharged in retaliation for filing a charge of
discrimination. (Pet. Ex. B, ECF No. 4-2) She received her Notice of Right to Sue from the
MCHR on April 17, 2014. (Pet. Ex. C, ECF No. 4-3) On May 7, 2014, Plaintiff filed a Petition
for Damages in the Circuit Court of St. Louis County, Missouri, alleging retaliation in violation
of the Missouri Human Rights Act ("MHRA") against Defendant AT&T Corp. (Count I);
retaliation in violation of the FMLA against AT&T Corp. (Count II); retaliation in violation of
the FMLA against Sharon Hyche (Count III); retaliation in violation of the MHRA against
SWBTC (Count IV); and retaliation in violation of the FMLA against SWBTC (Count V).
On July 15, 2015, Defendants filed Motion for Summary Judgment arguing that AT&T
Corp. should be dismissed because it was not Plaintiffs employer; Plaintiffs FMLA retaliation
claim fails as a matter of law because Plaintiff is unable to present direct or indirect evidence to
support her claim; and Plaintiffs MHRA retaliation claim fails as a matter of law because
Plaintiff is unable to demonstrate a causal relationship between filing her charge of
discrimination and her discharge. Plaintiff responds that a genuine issue of material fact exists as
to whether Plaintiff can show direct discrimination or that Defendants' stated reason for
terminating Plaintiffs employment was a pretext for discrimination.

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II. Legal Standards
Pursuant to Federal Rule of Civil Procedure 56( c), a court may grant a motion for
summary judgment only if all of the information before the court show "there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S . 317, 322 (1986). The court must view
the evidence and all reasonable inferences in the light most favorable to the non-moving party.

Hutson v. McDonnell Douglas Corp. , 63 F.3d 771 , 775 (8th Cir. 1995).
The moving party has the initial burden to establish the non-existence of any genuine
issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v.

Associated Elec. Co-op. , Inc. , 838 F.2d 268, 273 (8th Cir. 1988). Once this burden is
discharged, if the record does in fact bear out that no genuine dispute exists, the burden then
shifts to the non-moving party, who must set forth affirmative evidence and specific facts
showing there is a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc. , 477 U.S.
242, 249 (1986).
When the burden shifts, the non-moving party may not rest on the allegations in its
pleadings, but by affidavit and other evidence must set forth specific facts showing that a
genuine issue of material fact exists. Fed. R. Civ .P. 56(e). The non-moving party "must do
more than simply show that there is some metaphysical doubt as to the material facts."

Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). In fact, the nonmoving party must present sufficient evidence favoring the non-moving party which would
enable a jury to return a verdict for that party. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at
324. Self-serving, conclusory statements, standing alone, are insufficient to defeat a wellsupported motion for summary judgment. O 'Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th

7

Cir. 1995). "There is no 'discrimination case exception' to the application of summary
judgment, which is a useful pretrial tool to determine whether any case, including one alleging
discrimination, merits a trial." Torgerson v. City of Rochester, 643 F.3d 1031 , 1043 (8th Cir.
2011) (citation omitted).

Ill. Discussion
A. Claims Against AT&T Corp.
Defendant asserts that AT&T Corp. was not Plaintiffs employer. (Defs.' SUMF ii 2)
Not only did Plaintiff admit to this fact in her response to Defendant's Statement of
Uncontroverted Material Facts, but Plaintiffs attorney acknowledged during Plaintiffs
deposition that the parties agreed to stipulate that SWBTC is the proper employer, not AT&T.
(Pl. ' s Response ii 2; Darden Dep. 48:3-10) In addition, Plaintiffs attorney stated his intent to
dismiss AT&T from the case without prejudice. (Darden Dep. 48:8-11) However, Plaintiff has
not filed any voluntary dismissal. The Court finds that Plaintiff was not employed by AT&T
and, as will be explained below, will dismiss AT&T with prejudice as to Plaintiffs FMLA
retaliation claim (Count II) and without prejudice as to the MHRA claim (Count I).
B. Plaintiff's FMLA Retaliation Claim
Plaintiff claims that Defendants retaliated against her for using FMLA leave by
disciplining her and ultimately terminating her employment. Defendants argue that Plaintiff is
unable to establish an FMLA retaliation claim either by producing direct evidence or under the
burden-shifting framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973).
"A discrimination claim ' arises when an employer takes adverse action against an
employee because the employee exercises rights to which [s]he is entitled under the FMLA. "'
Hudson v. Tyson Fresh Meats, Inc., 787 F.3d 861 , 866 (8th Cir. 2015) (quoting Pulczinski v.

8

Trinity Structural Towers, Inc., 691 F.3d 996, 1006 (8th Cir. 2012)). "Taking FMLA leave,
however, does not give an employee any greater protection against termination for reasons
unrelated to the FMLA than was available before." Malloy v. US. Postal Serv., 756 F.3d 1088,
1090 (8th Cir. 2014) (citation omitted). In order to avoid summary judgment, Plaintiff must
present sufficient evidence for a jury to find that Defendants' decision to terminate her
employment was motivated by her exercise of FMLA rights. Id.
A plaintiff may establish discrimination by introducing direct or indirect evidence.

Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 924 (8th Cir. 2014). "Direct evidence reveals a
specific link between the alleged discriminatory animus and the challenged decision, sufficient to
support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the
adverse employment action." Id. (citation omitted). "Direct evidence must be strong and clearly
point to an illegal motive as the basis for the adverse employment action." Id. (citation omitted).
Plaintiff contends that Hyche' s alleged remark that she had something for those out on
FMLA leave is direct evidence that Defendants' discriminated and retaliated against Plaintiff by
firing her for taking leave under the FMLA. Defendants, on the other hand, argue that Hyche's
comment is not direct evidence of retaliatory motive because it was nothing more than a stray
remark made outside the decision making process. "' [S]tray remarks in the workplace,
statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional
process' are not direct evidence." Schaffhauser v. United Parcel Serv., Inc. , 794 F.3d 899, 902
(8th Cir. 2015) (quoting Twymon v. Wells Fargo & Co., 462 F.3d 925, 933).
Plaintiff asserts, however, that the fact Hyche disciplined her the day Plaintiff returned
from FMLA leave and just a few days after Hyche made the remark demonstrates retaliation.
However, the adverse action about which Plaintiff complains is her suspension three months

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after the remark and termination four months after, not disciplinary reminders given during the
four month interval. The gap in in time and lack of connection between Hyche' s comments
regarding employees on FMLA leave and Defendant' s decision to terminate Plaintiffs
employment negate Plaintiffs argument that the remark constitutes direct evidence of
Defendants' discriminatory motive for her termination. Bone v. G4S Youth Servs., LLC, 686
F.3d 948, 954 (8th Cir. 2012) (finding comments made six months before decision to discharge
plaintiff was not connected to defendant' s decision); see also Ram/et v. E.F. Johnson Co., 507
F.3d 1149, 1153 (8th Cir. 2007) (holding that stray comments were not related to the decision
making process because the most recent comment occurred four months before plaintiffs
termination).
Further, what Hyche meant by her comment requires an inference because she does not
name Plaintiff specifically, nor does she mention what action she planned to take. Ram/et, 507
F.3d at 1153. Indeed, Plaintiff acknowledges that the employees that overheard the remark
generally interpreted the comment as a threat of retaliation, but were not sure what Hyche meant.
Therefore, the Court finds that standing alone, Hyche's comment is not sufficient to constitute
direct evidence that Plaintiff taking FMLA leave actually motivated her termination. Id.; see
also Wagner v. Gallup, Inc., 788 F.3d 877, 885 (8th Cir. 2015) (finding perception of other
employees that Defendant had a pattern of pushing out older employees was anecdotal and "[fell]
short of demonstrating a specific link between a discriminatory bias and [plaintiffs] termination
sufficient to support a finding by a rational trier of fact that the bias motivated the action under
the direct method). Thus, to succeed on her FMLA retaliation claim, Plaintiff must create an
inference of unlawful discrimination under the burden-shifting framework of McDonnell

10

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Sisk v. Picture People, Inc., 669 F.3d
896, 899 (8th Cir. 2012).
"To establish a prima facie case of FMLA discrimination, an employee must show: (1)
that [s]he engaged in activity protected under the Act, (2) that [s]he suffered a materially adverse
employment action, and (3) that a causal connection existed between the employee's action and
the adverse employment action." Pulczinski, 691 F.3d at 1007 (citation omitted). "If the
employee establishes a prima facie case, 'the burden shifts to the [employer] to articulate a
legitimate, nondiscriminatory reason for its challenged actions.'" Hudson, 787 F.3d at 866
(quoting Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006)). "The employee
may then demonstrate that the proffered reason is pretextual, showing that 'the employer's
proffered explanation is unworthy of credence' or 'persuading the court that a prohibited reason
more likely motivated the employer."' Id. (quoting Stallings, 44 7 F .3d at 1051 ). Where an
employer bases its decision on an "honestly-held" belief that is unrelated to the plaintiffs
exercise of FMLA rights, the decision is non-discriminatory even if that belief is mistaken. Id.
(citation omitted).
In the instant case, the Court finds that Plaintiff is unable to establish a prima facie case
of discrimination under the FMLA. Although Plaintiff has shown that she engaged in protected
activity under the FMLA and that she suffered an adverse employment action, she has not shown
a causal connection between taking FMLA leave and her termination. Plaintiff relies on Hyche's
remark that she had a surprise for employees on FMLA leave made in September, 2013 as
evidence that Plaintiffs termination in January, 2014 was connected to Plaintiff taking FMLA
leave. Plaintiff also mentions meeting notes indicating that Kevin Gonzalgo, who fired Plaintiff,
stated that he kept an eye on her work results and was disheartened when he came to visit and

11

she was not in the office. It is a stretch to conclude that Mr. Gonzalgo was specifically referring
to Plaintiff using FMLA leave, as opposed to being disheartened because her sales numbers were
down. Further, as stated above, the four month gap between her last FMLA use and her
termination is too long to establish a causal connection.
While Plaintiff attempts to use the DML reminder and the investigation into her call to
the Call Center for a promotion on her personal AT&T account, these incidents were not adverse
employment actions that caused a tangible change in her working conditions. Musolf v. JC.
Penney Co., Inc., 773 F.3d 916, 920 n.3 (8th Cir. 2014) (finding that a meeting discussing
complaints against the plaintiff was not and adverse employment action because there was no
tangible change in work conditions which produced a material employment disadvantage)
(citation and internal quotations omitted)). Indeed, she was not disciplined in any way for these
incidents. Further, Plaintiff received her initial written reminder and DML before she took any
leave. See Brown v. City ofJacksonville , 711 F.3d 883 , 891 (8th Cir. 2013) (finding plaintiff
failed to make a prima facie case where supervisors communicated with her about her
unsatisfactory performance before she took FMLA leave).
Assuming, arguendo, that Plaintiff could make a prima facie case of FMLA
discrimination, Plaintiff is unable to demonstrate that Defendants' reason for terminating her
employment, violating COBC policy, was a pretext for FMLA discrimination. Here, Defendants
stated the reason for Plaintiffs termination was violating the COBC policy with regard to
canceling and reissuing orders. The Eighth Circuit has "consistently held that violating a
company policy is a legitimate, non-discriminatory rationale for terminating an employee."
Twymon, 462 F.3d at 935 . Plaintiff acknowledged that she sent a customer back into queue to
cancel with another representative and then had the customer reorder through Plaintiff, with

12

additional discounts and waived charges, which was a COBC violation. (Darden Dep. 313:12315 :21, 318:13-18)
Because Defendants have established a legitimate, non-discriminatory reason for
Plaintiffs termination, Plaintiff must prove by a preponderance of the evidence that the stated
reason for her termination was a pretext for discrimination. Id. "To show pretext, the plaintiff
must demonstrate more than at the prima facie stage because, at the pretext stage, the evidence is
viewed in light of the employer' s justification." Ebersole, 758 F.3d at 925 (citation omitted).
Plaintiff "may demonstrate pretext by 'showing that the employer' s proffered explanation is
unworthy of credence or persuading the court that a prohibited reason more likely motivated the
employer."' Burciaga v. Ravago Americas LLC, 791F.3d930, 935 (8th Cir. 2015) (quoting

Hudson, 787 F.3d at 866).
Here, Plaintiff argues that Defendants applied the COBC policy inconsistently and
more favorably toward those employees that did not use FMLA. Plaintiff asserts that it was
known in the office that employees could cancel orders and reissue them to get the sales credit.
Plaintiff also stated she was pretty sure another employee that did not take FMLA leave, Jade
Settle, was allowed to cancel and reissue orders with no repercussions. "In order to rely on
similarly-situated evidence, an employee 'must prove only that the other employees were
similarly situated in all relevant respects. " ' Id. (quoting Ridout v. JBS USA, LLC, 716 F.3d 1079,
1085 (8th Cir. 2013). "To be similarly situated, 'the individuals used for comparison must have
dealt with the same supervisor, have been subject to the same standards, and engaged in the same
conduct without any mitigating or distinguishing circumstances. '" Wierman v. Casey 's Gen.

Stores, 638 F.3d 984, 994 (8th Cir. 2011) (quoting Cherry v. Ritenour Sch. Dist., 361 F.3d 474,
479 (8th Cir. 2004)). Although the other employees "need not have committed the exact same

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offense [they] must have engaged in conduct ' of comparable seriousness. '" Ebersole, 758 F.3d
at 925 (quoting Burton v. Ark. Sec'y ofState, 737 F.3d 1219, 1231 (8th Cir. 2013)).
After reviewing the evidence, the Court finds that Plaintiff is unable to demonstrate that
Defendants' proffered reason for Plaintiffs termination was a pretext for unlawful
discrimination. Plaintiffs evidence does not establish that fellow employees were similarly
situated to her. First, there is no evidence that other employees had a written reminder and a
DML yet were not terminated for having another representative cancel the order and then
reissuing the order him or herself. See Fatemi v. White , 775 F.3d 1022, 1044 (8th Cir. 2015)
(finding that while the law does not require the comparator to be a clone, the law does require the
misconduct of the more favorably treated employees to be of comparable seriousness) (citation
omitted)). Plaintiff acknowledged that she should have done the cancelation and the reissue
herself, instead of sending the cancelation to another representative. Further, Plaintiff presents
insufficient evidence that employees that did not take FMLA leave were treated more favorably
than those taking FMLA leave. Her only evidence is her self- serving statement that she was
pretty sure another employee that did not take FMLA leave performed a cancel/reissue with no
repercussions. This does not establish a genuine issue of material fact that Defendants treated
non-FMLA employees more favorably than those using FMLA leave. See, e.g. , Gibson v. Am.

Greetings Corp., 670 F.3d 844, 857 (8th Cir. 2012) ("A party' s unsupported self-serving
allegation that her employer' s decision was based on retaliation does not establish a genuine
issue of material fact. ") (quotation and citation omitted)).
Further, Plaintiffs reliance on Hite v. Vermeer Mfg. Co., 446 F.3d 858 (8th Cir. 2006) is
misplaced. In that case, a jury returned a verdict in favor of the plaintiff where the plaintiffs
supervisor reacted negatively to plaintiffs use of FMLA leave and questioned whether she was

14

really sick. Id. at 862. The supervisor also mentioned to the plaintiff that her production levels
would be called into question because of her absences, and he complained regularly to
Vermeer' s human resources manager and the FMLA coordinator about plaintiff's use of leave.

Id. Furthermore, the supervisor routinely transferred plaintiff to different machines and told her
that he would permanently remove her from the machine she typically operated if she continued
to use FMLA leave. Id. The plaintiff complained that her supervisor treated her differently than
other employees by citing her for minor violations not commonly used with other employees. Id.
at 863. Former employees testified at trial that they began having disciplinary problems and
experiencing adverse employment actions after using FMLA leave. Id. The Eighth Circuit
affirmed the district court' s finding that sufficient evidence of FMLA retaliation existed to
support the jury verdict. Id. at 868. The court relied on the plaintiffs evidence of pretext
stemming from other employees' testimony that Vermeer employees were not punished for
plaintiffs infraction and that they had personally experienced retaliation for taking FMLA leave.

Id.
In the instant case, Defendants did not make explicit remarks about retaliating against
Plaintiff or any other employee taking FMLA leave. Defendants made no threats, nor did
Defendants take any disciplinary action against Plaintiff or other employees for taking FMLA
leave. Shontae Davis stated that she voluntarily separated from the company, and Mark
McDonald did not believe his termination stemmed from his use of FMLA leave. Other alleged
retaliation against other employees was hearsay, and most named employees did not have Hyche
as a supervisor. Finally, Plaintiff presents no evidence that non-FMLA employees were not
disciplined for the same offenses committed by employees taking FMLA leave. See Ebersole,
758 F.3d at 927 (distinguishing Hite based on the supervisor' s explicit references to plaintiffs

15

use of FMLA leave, punishment for taking leave, and threats to terminate employment if plaintiff
continued to take FMLA leave). While Plaintiff attempts to equate a her infraction with
cancel/reissue orders, the steps she took, to have another representative cancel the customer' s
order and then to reissue the order herself with additional discounts, were not the same actions
taken by other employees.
The Court notes that "federal courts do not sit as a super-personnel department that
reexamines an entity' s business decisions." Johnson v. Ready Mixed Concrete Co., 424 F.3d
806, 812 (8th Cir. 2005) (quoting Harvey v. Anheuser-Busch, Inc. , 38 F.3d 968, 973 (8th Cir.
1994) (internal quotations omitted)). The Court may not consider whether Defendants were
unduly harsh in its treatment of Plaintiff. Id. The sole question is whether there is a genuine
issue for trial as to whether Defendants terminated Plaintiffs employment because she took
leave under the FMLA. Id. The Court finds that Plaintiff has failed to produce sufficient
evidence demonstrating a genuine issue of material fact that her termination was the result of
FMLA retaliation and not a legitimate business reason. Therefore, summary judgment in favor
of Defendants is warranted. 1

C. Plaintiff's MHRA Retaliation Claim
Plaintiff also contends that the Defendants retaliated against her for filing an MHRA
claim. Defendant asserts that they are entitled to summary judgment because Plaintiff has failed
to present evidence establishing a causal relationship between filing her charge of discrimination
and her termination. The Court acknowledges the Eighth Circuit case law that instructs lower
courts to dismiss the MHRA claims without prejudice to allow the courts of Missouri to decide
rather than exercise supplemental jurisdiction. See Murphy v. St. Louis Univ., 450 Fed. App 'x

1

Because Defendants are entitled to judgment as a matter of law on Plaintiffs FMLA claims,
the Court will dismiss AT&T, an improper party, with prejudice.
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552, 553 (8th Cir. 2012) (finding district court should have dismissed the MHRA claims rather
than address them on the merits because the court was uncertain how Missouri courts would
view the claims); EEOC v. Con-Way Freight, Inc. , 622 F.3d 933 , 938 (8th Cir. 2010) (noting that
the MHRA safeguards were not identical to federal standards and could offer greater
discrimination protection, thus finding the better course was to allow the state courts to decide
the merit of plaintiffs MHRA claims). In those and other comparable cases, the court' s
jurisdiction was based on supplemental jurisdiction and not diversity of citizenship. Trickey v.
Kaman Indus. Techs. Corp., No. 1:09-cv-00026-SNLJ, 2011WL2118578, at *6 (E.D. Mo. May
26, 2011).
Similarly, this Court' s jurisdiction over Plaintiffs MHRA claims is supplemental, not
based on diversity. (Notice of Removal if 9, ECF No. 1) Thus, the Court will decline to exercise
supplemental jurisdiction over Plaintiffs MHRA retaliation claims and will dismiss the claims
without prejudice. Dickey v. Lou Fusz Auto. Network, Inc. , No. 4:10-CV-1818 (CEJ), 2012 WL
162408, at *6 (E.D. Mo. Jan. 19, 2012).
Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (ECF No.

35) is GRANTED as to Counts III and V pertaining to Plaintiffs claims under the Family
Medical Leave Act.
IT IS FURTHER ORDERED that Count II against AT&T Corp. is DISMISSED with
prejudice.

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IT IS FURTHER ORDERED that Plaintiffs state law claims under the MHRA, Counts
I and IV are DISMISSED without prejudice. A separate Judgment will accompany this
Memorandum and Order.
Dated this 14th day of January, 2016.

~

UNITED STATES DISTRICT JUDGE

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