Verby v. PayPal, Inc. et al

Filing 55

MEMORANDUM AND ORDER - The defendants' motion for summary judgment (filing 45 ) is granted. The plaintiff's complaint is dismissed. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AUSTI M. VERBY,
Plaintiff,
vs.

8:13-CV-51
MEMORANDUM AND ORDER

PAYPAL, INC., et al.,
Defendants.
The plaintiff, Austi Verby, has sued her former employer and several of
its employees for allegedly discriminating against her in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; retaliating against
her for activity protected by Title VII; violating the Family and Medical
Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; and tortious interference with an
employment relationship. The matter is before the Court on the defendants'
motion for summary judgment (filing 45). The Court will grant the
defendants' motion and dismiss the plaintiff's complaint.
I. BACKGROUND
The plaintiff was hired by PayPal, Inc., one of the defendants, in
August 2005. Filing 46 at 3;1 filing 47-2 at 127. The other defendants worked

The Court has relied, in large measure, on the statement of facts contained in the
defendants' brief in support of their motion for summary judgment (filing 46). NECivR
56.1(a) requires a party moving for summary judgment to include in its brief a statement of
facts consisting of short numbered paragraphs, with citations to the record. The defendants
have followed the rule. Filing 46 at 3-18. NECivR 56.1(b)(1) further requires a party
opposing summary judgment to
1

include in its brief a concise response to the moving party's statement of
material facts. Each material fact in the response must be set forth in a
separate numbered paragraph, must include pinpoint references to affidavits,
pleadings, discovery responses, deposition testimony (by page and line), or
other materials upon which the opposing party relies, and, if applicable, must
state the number of the paragraph in the movant's statement of material
facts that is disputed. Properly referenced material facts in the movant's
statement are considered admitted unless controverted in the opposing
party's response.

with the plaintiff: Jody Willey was the plaintiff's supervisor, Heather
Johnson was Willey's manager, and Justin Sebeck was the co-worker who
allegedly harassed the plaintiff. Filing 46 at 3-4; filing 47-2 at 20-21.
The plaintiff became a PayPal fraud appeals agent in 2006. Filing 46 at
3; filing 47-2 at 76. A fraud appeals agent is commonly responsible for
handling situations such as unauthorized access to a customer's PayPal
account, or accounts created using stolen financial information. Filing 47-2 at
78. Such an account is restricted and PayPal requests additional
documentation from the customer; once that information is provided, or if the
customer calls customer service, the fraud appeals agent is responsible for
reviewing the account and deciding whether to restore unrestricted use or
keep the restrictions in place. Filing 47-2 at 80-81.
In August 2011, the plaintiff began taking occasional leave because her
maternal grandmother was ill. Filing 46 at 7. The plaintiff continued to take
intermittent leave to help her grandmother, a few hours at a time, over the
remainder of her employment with PayPal. Filing 46 at 7, 17-18; filing 47-3
at 5-25. At no point did PayPal deny any of the plaintiff's requested leave.
Filing 46 at 7, 17.
In October 2011, the plaintiff was issued a "Conversation Memo"
informing her that her job performance was not acceptable.2 Filing 46 at 7-8;
filing 47-2 at 137. Specifically, the plaintiff was informed of her low quality
control scores and told that her performance had been the lowest on her team

(Emphasis in original.) That rule is not hard to follow: just read the movant's statement of
facts, and identify which ones are disputed. But the plaintiff's brief opposing summary
judgment completely disregards the rule. See, filing 50 at 10-11; filing 51 at 1-5. The Court
has nonetheless tried to give the plaintiff the benefit of any factual disputes that are
apparent from her argument or were discovered in the Court's own review of the record.
The plaintiff, however, has waived any objection of her own to the defendants' statement of
facts by failing to properly dispute it. See, Jackson v. United Parcel Serv., 643 F.3d 1081,
1088 (8th Cir. 2011); Ballard v. Heineman, 548 F.3d 1132, 1133-34 (8th Cir. 2008); Libel v.
Adventure Lands of Am., Inc., 482 F.3d 1028, 1032-33 (8th Cir. 2007); Jones v. United
Parcel Serv., 461 F.3d 982, 989-91 (8th Cir. 2006); Nw. Bank & Trust Co. v. First Ill. Nat'l
Bank, 354 F.3d 721, 724-25 (8th Cir. 2003); compare Jenkins v. Winter, 540 F.3d 742, 747
(8th Cir. 2008).
Other disciplinary incidents, both before and after, are reflected in the record, but the
Court does not find it necessary to discuss them all. They were not all part of the stated
basis for the plaintiff's termination, see filing 47-2 at 149-50, nor are they all similar to the
incidents for which PayPal says the plaintiff was fired. And an employer is limited in the
extent to which it can rely on post hoc justifications for an employment decision. See, e.g.,
Wierman v. Casey's Gen. Stores, 638 F.3d 984, 995 (8th Cir. 2011); see also McKennon v.
Nashville Banner Publ'g Co., 513 U.S. 352, 360 (1995). The Court has therefore focused its
attention on the reasons PayPal gave for firing the plaintiff. See filing 47-2 at 149-50.
2

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during that quarter. Filing 47-2 at 137. It was also noted that she had been
given detailed guidance on several occasions but continued to make the same
errors. Filing 47-2 at 137. And she was warned that failure to improve her
performance could result in further discipline, up to and including
termination. Filing 47-2 at 137.
Sebeck and the plaintiff worked together, although not constantly—
their shifts overlapped on Fridays, and when the plaintiff came in to make up
hours or work overtime. Filing 47-2 at 26-27. The plaintiff first complained
about Sebeck to Willey in late December 2011 or January 2012. Filing 47-2 at
98. She said that Sebeck was watching everything she did at work and trying
to get her in trouble by reporting her activities, so she felt like she was
"constantly on the defense" because she had to keep track of her cases and
explain later what she had been doing. Filing 47-2 at 95. The plaintiff said
people had told her that he was watching her breaks and telling her
supervisors what she was doing. Filing 47-2 at 97. Sebeck also reportedly
used instant messaging to report her work activities to others, forcing her to
explain herself when he got her in trouble. Filing 52-18 at 3-5. The plaintiff's
affidavit summarizes her accusations:
[Sebeck] repeatedly gave me visual or physic [sic] nonconsensual
communication, verbal, written or implied threats or a
combination causing a reasonable amount of making me
uncomfortable in the work place. Justin Sebeck would watch
every break I took, who came to my desk to talk to me. He was
quick to keep a log of when I would walk away from my desk to
help someone, go to break, or use the restroom and then report it
to a supervisor in the department. [Sebeck] would randomly walk
behind me while I was at my desk and stare at my computer as
he walked by.
Filing 52-11 at 5. In other words, according to the plaintiff, Sebeck was a
tattletale. But, the plaintiff admits, she never actually spoke to Sebeck about
anything. Filing 47-2 at 26.
In response, Willey contacted Johnson and Sebeck's supervisor. Filing
47-2 at 98. The plaintiff's desk was moved away from Sebeck's. Filing 47-2 at
104-05. According to Willey, such a move may be undertaken regardless of
the underlying complaint's validity, to make sure that employees know they
are listened to and their concerns are taken seriously. Filing 52-20 at 5. But
when switching desks didn't help, after extended discussions with Willey, the
plaintiff contacted PayPal's human resources consultant, MyHR, on April 20,

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2012, and alleged that Sebeck was harassing her. Filing 46 at 9; filing 47-2 at
106, 152.
Specifically, on the complaint form, the plaintiff said she
would like someone to contact me regarding filing a report on a
[sic] employee by the name of Justin Sebeck in regards to actions
that have lead [sic] up to an unconfortable [sic] work
environment. I have reported these actions to my Supervisor
Jody Willey and she has directed me to you.
Filing 47-2 at 152. According to the case notes, the plaintiff described
Sebeck's behavior to the MyHR investigator as Sebeck reporting things to a
senior agent with whom Sebeck was friends outside of work, "making
exaggerated reports, of me being late," and making comments such as
"hostile work environment." Filing 47-2 at 152.
In a follow-up email to the MyHR investigator, the plaintiff explained
her allegations in more detail. Filing 46 at 10; filing 47-2 at 152-54. The
plaintiff reported that:
I first noticed the issues with Justin Sebeck towards the end of
August beginning of September 2011. This was the [sic] around
the time I noticed that he would watch when I took my breaks,
who was coming to my desk or if I would assist someone at their
desk.
....
During [the end of October-early November 2011] is when it was
brought to my supervisors [sic] attention (Jody Willey) that I was
having multiple people come to my desk for 45 plus minutes at a
time.
Between this occurrence and the next one I noticed that [Sebeck]
was paying close attention to every time I left me [sic] desk, etc.
As I explained to you he makes it very obvious by looking directly
at you, getting up and walking in the vicinity of where I am, or
staring me down as he walks past. It was also brought to my
attention by other agents that he was watching me. This
behavior continued through the months of November, December,
January, February and March.

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Then next time I was approached by a supervisor . . . who told
myself and another agent to stop talking. I was having a
completely work related conversation with this agent assisting
them regarding appeals process. While I was assisting this agent
I could see [Sebeck] staring at myself and this other agent. He
waited until I was done helping this agent and walked over to
[the supervisor's] area spoke to [the supervisor] and a few of the
agents in her area. Once [Sebeck] sat down [the supervisor] came
over to speak with me. I reported this to Jody Willey first thing in
the morning. ([Willey] advised me that she had no report of this
from [the supervisor.])
After this occurrence and speaking with [Willey] in depth about
[Sebeck]'s behavior and finding out that he was doing this to
other agents (who wish not to come forward), [Willey] advised me
that this situation was considered to be a hostile work
environment and that it was time for us to escalate the
situations. [Willey] contacted [Sebeck's supervisor] and Heather
Johnson regarding the next steps to take. [Willey] later advised
me that [Sebeck's supervisor] spoke with [Sebeck] regarding this
behavior and she provided a [sic] email follow up to both [Willey]
and [Johnson].
Once the conversation took place [Sebeck]'s behavior did change
temporarily. [But after Sebeck's supervisor changed,] [Sebeck]
started to go back to the same activity. On March 23rd I was
sitting in my desk which at the time was located one row over
from [Sebeck]. He was standing up and talking to one of his
teammates when he said very loud and obnoxiously: "You better
watch out or it may be considered a hostile work environment".
Immediately the agent he was speaking to responded with: "Did
you talk to [your supervisor] about that?" At the time [Sebeck's
supervisor] immediately stepped in and said yes and to stop it. At
this time I emailed [Willey] advising her that I needed to talk to
her, which was the email I forward to you yesterday. Once
[Willey] and I discussed this last situation she advised me that
she would contact [Sebeck's supervisor] on what they felt was the
best action to take going forward. At this time I was advised that
my next course of action would be to contact HR.

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Filing 47-2 at 153-54. The plaintiff explained that Sebeck "is a busy body and
in everyone's business" and that "any action taken may only be a temporary
resolution before the behavior starts again." Filing 47-2 at 155.
The MyHR investigator interviewed the plaintiff, Willey, Sebeck, and
Sebeck's supervisor. Filing 46 at 10; filing 47-3 at 1-2. Willey reported that
there was a "history" between the plaintiff and Sebeck; that they "did not like
each other" and "were friends in and outside of work with people who did not
like each other." Filing 47-3 at 1. Sebeck indicated that he had not mistreated
the plaintiff, but "felt that she was not good at her job." Filing 47-3 at 1.
According to the MyHR investigator, the plaintiff reported that
she and [Sebeck] overlapped one day a week (Friday) at work and
that she felt he was trying to get her in trouble; watching her,
timing her breaks etc. [The plaintiff] [i]ndicated that she and
[Sebeck] have never spoken. [The plaintiff] was concerned about
a supervisor/lead . . . who was a "friend" of [Sebeck's] and that
made [the plaintiff] uncomfortable because she felt [Sebeck] could
get her in trouble by making complaints to [his friend].
Filing 46 at 10; filing 47-3 at 2. The investigator resolved the plaintiff's
complaint as follows:
After speaking with [the plaintiff], [Sebeck] and their respective
supervisors' [sic] multiple times I was unable to substantiate any
rule, policy or procedure being violated. It was explained to
[Sebeck] that there was a perception of him from [the plaintiff]
that he needed to change. He agreed to keep his distance from
her but denied any intentional hostility. There was a sideline
issue that took place during this investigation; it was reported by
their respective supervisors that both [the plaintiff] and [Sebeck]
continued to talk to their friends/co-workers about this issue and
that there was an "investigation." They were each cautioned to
keep matters confidential but the complaints continued to come
forward. I considered anyone who would be considered a witness
tainted and because there was not a specific allegation of a
particular incident the case was closed. This was communicated
to [the plaintiff] with the urging that if there were any further
issues with [Sebeck] or anyone else she should bring them
forward immediately. She seemed satisfied with this outcome
when communicated to her on 5/25/2012. [Willey] and [Sebeck's

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supervisor] agreed to closely monitor the situation going forward
in addition.
Filing 46 at 10-11; filing 47-3 at 2. After the investigation was closed on June
5, 2012, the plaintiff had no further problems with Sebeck. Filing 46 at 11-12.
Meanwhile, the plaintiff had continued to receive warnings about her
job performance. Filing 46 at 12. On June 24, 2012, she was issued a
"Corrective Counseling" memo on quality and decisionmaking. Filing 46 at
12-13; filing 47-2 at 143. This time, she was told that "immediate
improvement" was required, "specifically in the area of Quality." Filing 46 at
13; filing 47-2 at 143. The memo highlighted two instances in which customer
appeals had been denied when, in fact, the hold on each account should have
been lifted. Filing 46 at 12; filing 47-2 at 143. The memo also re-emphasized
the seriousness of incorrectly denying customers the use of their PayPal
accounts. Filing 46 at 13; filing 47-2 at 143. Sanctions were imposed: the
plaintiff was told she was ineligible to post for open positions or for tuition
reimbursement for 90 days, and that her performance rating and bonus
might be affected. Filing 47-2 at 144. And she was warned that should
anything similar happen again, she would be subject to further discipline, "up
to and including termination . . . without further counseling." Filing 46 at 13;
filing 47-2 at 144.
When Willey and the plaintiff met to discuss the mistakes described in
the June 24, 2012 corrective counseling memo, the plaintiff defended some of
her decisions. Filing 46 at 13; filing 47-3 at 53, 55. Willey decided to take a
closer look at the plaintiff's performance. Filing 46 at 13; filing 47-3 at 53-55.
While looking for other cases in which appeals had been denied, Willey
discovered a number of cases that the plaintiff had "dumped" after they had
been assigned to her. Filing 46 at 14; filing 47-2 at 145. In each case,
although the plaintiff had not worked on the customer's account, she marked
it as "already worked," meaning that the case was not delivered to anyone
else right away. Filing 46 at 14; filing 47-2 at 145. Although other employees
had done the same thing, Willey found that the plaintiff had done so at a rate
significantly higher than her co-workers. Filing 46 at 14; filing 47-3 at 28-49.
Willey also found that the plaintiff had repeatedly failed to follow procedures
for logging into and out of her phone at the beginning and end of each shift.
Filing 46 at 14-15; filing 47-2 at 146-47.
The plaintiff was fired on June 29, 2012.3 Filing 46 at 15; filing 47-2 at
149. She was informed that the reasons for her termination were her
There is a series of emails among Willey and MyHR consultants, regarding the
termination, that the plaintiff relies upon as evidence of discrimination and retaliation. The
3

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violations of phone login procedure, the poor work performance documented
in the conversation memo and corrective counseling memo described above,
and dumping cases without working on them. Filing 47-2 at 149. The plaintiff
filed an Equal Employment Opportunity Commission charge, and after
receiving her right-to-sue letter, sued in this Court. Filing 2; filing 2-1. The
defendants' motion for summary judgment (filing 45) followed.
II. STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
III. DISCUSSION
The plaintiff's complaint presents four claims: sexual harassment and a
hostile work environment in violation of Title VII,4 retaliation in violation of
Court finds them to be primarily relevant to her FMLA claim, and will discuss them in
more detail below in that context.
At least, the Court assumes that her claim is based on a hostile work environment. Her
complaint does not use that term, and in her affidavit opposing summary judgment, the
plaintiff asserts that "'[h]ostile work environment' is not my description but the description
4

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Title VII, violation of the FMLA, and a state-law claim for tortious
interference with a business relationship.
1. TITLE VII HOSTILE WORK ENVIRONMENT
The record is clear that Sebeck is the only person alleged to have
harassed the plaintiff. So, this case involves allegations of co-worker
harassment. In order to establish a prima facie case of gender discrimination
on this theory, the plaintiff must be able to demonstrate that (1) she is a
member of a protected class; (2) unwelcome harassment occurred; (3) the
harassment was based on sex; (4) the harassment affected a term, condition,
or privilege of employment; and (5) her employer, PayPal, knew or should
have known of the harassment and failed to take proper remedial action.
Jackman v. Fifth Jud. Dist. Dep't of Corr. Servs., 728 F.3d 800, 805-06 (8th
Cir. 2013); Hervey v. Cty. of Koochiching, 527 F.3d 711, 721 (8th Cir. 2008);
McCown v. St. John's Health Sys., 349 F.3d 540, 542 (8th Cir. 2003); Scusa v.
Nestle U.S.A. Co., 181 F.3d 958, 965 (8th Cir. 1999). It is not disputed that
the plaintiff, as a woman, is a member of a protected class. And for purposes
of summary judgment, the Court assumes that harassment occurred as the
plaintiff described it. The plaintiff's case fails in every other respect.
(a) Harassment Not Based on Sex
To begin with, there is nothing in the record—nothing at all—to
suggest that Sebeck's alleged harassment of the plaintiff was based on sex.
"Title VII does not prohibit workplace harassment unless it is based on sex."
McCown, 349 F.3d at 543. Whether harassing conduct constitutes
discrimination based on sex is determined by whether members of one sex
are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed. Scusa, 181 F.3d at 965; see
McCown, 349 F.3d at 543. "Stated differently, the harassment must be based
on the complaining person's sex." Scusa, 181 F.3d at 965.
The plaintiff attempts to make up for her lack of evidence by labeling
Sebeck's alleged conduct "gender stalking sexual harassment," and using that
unwieldy phrase at every available opportunity.5 See, filing 50, passim; filing
of Jody Willey's [sic] of what took place." Filing 52-11 at 5. But Title VII does not apply to
co-workers—it prohibits employers from discriminating with respect to terms, conditions, or
privileges of employment. 42 U.S.C. § 2000e-2(a)(1); Powell v. Yellow Book USA, Inc., 445
F.3d 1074, 1079 (8th Cir. 2006). The Court analyzes the plaintiff's claim as a hostile work
environment claim because that is the only theory upon which Sebeck's alleged conduct
could support liability against PayPal.
The use of the word "stalking" is questionable, as Sebeck's alleged conduct, even if every
inference is given to the plaintiff, does not measure up to any reasonable definition of the
5

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51, passim. But the plaintiff's rhetorical hyperbole is no substitute for proof,
and the fact of the matter is that the plaintiff simply recites the events that
took place "and claims they were taken because she is a woman." See Hervey,
527 F.3d at 722. The plaintiff has been "unable to provide any evidence,
either directly or by inference, beyond her own speculation, that her alleged
mistreatment was due to her protected status." See Bradley v. Widnall, 232
F.3d 626, 632 (8th Cir. 2000), disapproved on other grounds, Torgerson, 643
F.3d at 1043. In contrast, the Court's examination of the record reveals that
the conflict between Sebeck and the plaintiff "stemmed from inter-office
politics and personality conflicts rather than [sex] based animus." See id. The
record is simply insufficient to create a jury question as to whether Sebeck's
alleged conduct constituted discrimination because of sex. See McCown, 349
F.3d at 543-44; see also, Hervey, 527 F.3d at 721-22; Bradley, 232 F.3d at 632;
Scusa, 181 F.3d at 965. The plaintiff can use her brief to label Sebeck as an
"offending gender stalking sexually harassing male predator," filing 50 at 2,
but has presented no evidence to substantiate the claim.
(b) Harassment not Severe and Pervasive
Nor is there sufficient evidence to suggest that the alleged harassment
affected a term, condition, or privilege of employment. Title VII was not
designed to create a federal remedy for all offensive language and conduct in
the workplace. Scusa, 181 F.3d at 967. In order to find that harassment
affected a term, condition, or privilege of employment, a plaintiff must be able
to establish that, considering the totality of the circumstances, the conduct
was extreme, such that intimidation and ridicule permeated the workplace.
Jackman, 728 F.3d at 806. Factors to be considered when determining
whether harassment is severe or pervasive include the frequency of the
conduct, its severity, whether it is physically threatening or humiliating as
opposed to a mere offensive utterance, and whether it unreasonably
interferes with an employee's work performance. Cottrill v. MFA, Inc., 443
F.3d 629, 636 (8th Cir. 2006); Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030,
1038 (8th Cir. 2005); Bradley, 232 F.3d at 631; Scusa, 181 F.3d at 967.
The issue under Title VII is whether the work environment was both
objectively and subjectively offensive, that is, one that a reasonable person
would find hostile or abusive. Scusa, 181 F.3d at 967. And in this case, while
the plaintiff may have faced "a frustrating work situation," it was not "so
severe or pervasive as to have affected a term, condition, or privilege of her
employment." See Bradley, 232 F.3d at 631-32. Conduct must be extreme to
term. Compare, e.g., 22 U.S.C. § 2507a(f)(4); 42 U.S.C. § 13925(a)(30); Neb. Rev. Stat. § 28311.03.

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amount to a change in the terms and conditions of employment. Al-Zubaidy,
406 F.3d at 1038. Seen objectively, the situation the plaintiff describes
represents little more than "the ordinary tribulations of the workplace."
Scusa, 181 F.3d at 966 (citations and quotations omitted); see Al-Zubaidy,
406 F.3d at 1039. Perhaps Sebeck was irritating, unpleasant, or rude, but
that does not violate federal law. Even considered subjectively, the most the
plaintiff can say seems to be that Sebeck was "causing a reasonable amount
of making [her] uncomfortable in the work place" and that it caused her
"stress at work."6 Filing 52-11 at 5; filing 52-18 at 5. That falls well short of
the "demanding" standards that are intended to ensure that "Title VII does
not become a general civility code" for the American workplace. See, AlZubaidy, 406 F.3d at 1038-39; Scusa, 181 F.3d at 966-67; see also Jackman,
728 F.3d at 806.
(c) PayPal Took Proper Remedial Action
Finally, even if the record did permit an inference that the plaintiff
had been harassed on the basis of sex, and that the harassment was severe
and pervasive, the record would still lack evidence that PayPal failed to take
proper remedial action. An employer is not liable if it takes prompt remedial
action which is reasonably calculated to end the harassment once the
employer knew or should have known about the harassment. Scusa, 181 F.3d
at 967. And in this case, as described above, when the plaintiff first
complained to Willey, Willey communicated with Sebeck's supervisor and her
own manager, and acted by moving the plaintiff's desk. Sebeck was told
about the complaint, and for a time his behavior allegedly changed. Filing 473 at 3. But when that apparently didn't work, and the plaintiff made a formal
complaint, Sebeck agreed to keep his distance. When the plaintiff was told of
that, and told to report any further issues, "[s]he seemed satisfied with this
outcome." Filing 47-3 at 2. And after that, until the plaintiff's firing, there
were no further issues.
In other words, "[t]he undisputed evidence showed that every time she
complained to management, it responded to her satisfaction. Moreover, after
management took action, the incidents were not repeated." Scusa, 181 F.3d
at 968. Thus, management took appropriate action to end the alleged
harassment. See id. There is no issue of material fact as to whether PayPal
promptly and adequately responded to the plaintiff's complaints. See id.
It is worth noting that to the extent that the plaintiff relies on conduct she found out
about after the fact, and after her employment ended, it is irrelevant. A Title VII plaintiff
may rely only on evidence relating to harassment of which she was aware during the time
that she was allegedly subject to a hostile work environment. Cottrill, 443 F.3d at 636; see
Williams v. ConAgra Poultry Co., 378 F.3d 790, 794 (8th Cir. 2004).
6

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In sum, the plaintiff's Title VII discrimination claim fails because she
was not harassed on the basis of sex, the alleged harassment was not severe
and pervasive, and PayPal took adequate remedial action when the situation
was reported to management. But an employee may be sheltered from
retaliation for complaining about workplace discrimination, even if a court
eventually decides that the employee's complaints were without merit. See
Wallace v. Sparks Health Sys., 415 F.3d 853, 858 (8th Cir. 2005). So, the
Court turns to the merits of the plaintiff's Title VII retaliation claim.
2. TITLE VII RETALIATION
Title VII makes it unlawful for an employer to discriminate against an
employee because she has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under Title VII.
Brown v. City of Jacksonville, 711 F.3d 883, 892 (8th Cir. 2013) (citing 42
U.S.C. § 2000e-3(a)). In other words, Title VII prohibits an employer from
retaliating against an employee for opposing discrimination. Wright v. St.
Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013).
(a) No Direct Evidence of Retaliation
To make a submissible case, the plaintiff must present either direct
evidence of retaliation, or create an inference of retaliation under the threepart burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-06 (1973). Brown, 711 F.3d at 892. Direct evidence requires
proof of conduct or statements by persons involved in the decisionmaking
process which indicate that a discriminatory attitude was more likely than
not a motivating factor in the employer's decision. Id. at 892-93 and n.11
(citing Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1046 (8th Cir. 2005));
see Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012) (citing
Torgerson, 643 F.3d at 1045). The plaintiff here has presented no direct
evidence because nothing in the record shows a specific link sufficient to
support a finding by a reasonable fact finder that her firing was in retaliation
for the her complaints to management. See Brown, 711 F.3d at 892.
(b) McDonnell Douglas Burden-Shifting Framework
So, the plaintiff needs the three-part McDonnell Douglas analysis.
Under that framework, she must first establish a prima facie case of
retaliation. If she succeeds in doing so, the burden shifts to the defendant to
offer a legitimate, nonretaliatory reason for terminating her. If it can do so,
the burden shifts back to the plaintiff to prove that the proffered reason is
merely a pretext for retaliation and, ultimately, that the defendant was
actually motivated by retaliatory animus. Brannum v. Mo. Dep't of Corrs.,

- 12 -

518 F.3d 542, 547-48 (8th Cir. 2008); Wallace, 415 F.3d at 859-60; see Brown,
711 F.3d at 892-93; see also Guimaraes, 674 F.3d at 973, 977-78.
To establish a prima facie case, the plaintiff must show that (1) she
engaged in statutorily protected conduct, (2) she suffered a materially
adverse employment action, and (3) the protected conduct was a but-for cause
of the adverse employment action. See, Wright, 730 F.3d at 737; Bennett v.
Riceland Foods, Inc., 721 F.3d 546, 551 (8th Cir. 2013); Guimaraes, 674 F.3d
at 978. Because the plaintiff was fired, she has clearly suffered an adverse
employment action. But the plaintiff's prima facie case fails because she did
not engage in statutorily protected conduct, and she cannot prove that the
conduct she did engage in was a but-for cause of her firing. And even if she
had established a prima facie case, she cannot satisfy her burden of showing
that PayPal's proffered reasons for her termination were pretextual.
(i) No Evidence of Protected Activity
The Court acknowledges, as noted above, that an underlying claim of
discrimination need not have merit for an employee to be protected from
retaliation for making it. See Wallace, 415 F.3d at 858; see also Brannum, 518
F.3d at 547. But the underlying claim must be one of discrimination. To
provide a basis for a sexual harassment retaliation claim, the underlying
complaint must have concerned conduct that a reasonable person would have
believed was a violation of Title VII. See Curd v. Hank's Discount Fine
Furniture, Inc., 272 F.3d 1039, 1041-42 (8th Cir. 2001); see also Brannum,
518 F.3d at 547. And as set forth in detail above, while the plaintiff
complained to her supervisors about Sebeck's alleged harassment, there is
nothing in the record to suggest that she complained (before she was fired)
that she was being harassed or otherwise discriminated against because of
her gender.7 She simply did not claim that gender discrimination (as opposed
to generally uncivil behavior) was at issue. Nor, for the reasons explained
above, could a reasonable person have concluded that Sebeck's alleged
conduct was based on sex, or was sufficiently severe and pervasive, so as to
violate Title VII. As a result, the plaintiff's complaints to management were
not protected by Title VII because they did not involve a practice made
unlawful by Title VII. See, Guimaraes, 674 F.3d at 978-79; Smith v. Int'l
Paper Co., 523 F.3d 845, 849-50 (8th Cir. 2008); Brannum, 518 F.3d at 548;
The failure to expressly complain about gender discrimination also severs the chain of
causation for the plaintiff's retaliation claim. An employee must show that the employer
had actual or constructive knowledge of protected activity in order to establish unlawful
retaliation. Hervey, 527 F.3d at 722. Because complaining about rudeness or disrespect does
not necessarily implicate Title VII, it does not provide an employer with actual or
constructive knowledge of protected activity by the complainant. See id. at 722-23.
7

- 13 -

Tiedeman v. Neb. Dep't of Corrs., 144 Fed. Appx. 565, 566 (8th Cir. 2005);
Curd, 272 F.3d at 1041-42.
Smith, 523 F.3d at 849-50, illustrates the point. In Smith, the employee
complained to a manager that his supervisor was abusive—that he "'on a
nightly basis . . . was cussing me, hollering, yelling at me.'" 523 F.3d at 846
(omission in original). The employee elaborated that his supervisor was
"'hollering and cussing at me'" and falsely accusing him of damaging
equipment. Id. The employee's supervisor found out about the employee's
complaint and threatened to get back at the employee. Id. The employee was
fired several months later, and he sued alleging he had been retaliated
against for his complaint. Id. at 847-48. But the Eighth Circuit found that the
employee had not engaged in conduct protected by Title VII. Id. at 849.
Although the employee was African-American, his complaint to management
about "yelling, cussing and hollering" at him, "'with no reference to race,
color, . . . or national origin,'" did not constitute protected conduct. Id. at 849.
And, the Eighth Circuit explained, no reasonable person could believe that
the employee's complaints about workplace civility were protected under Title
VII. Id. at 850.
Similarly, in this case, there is no evidence that the plaintiff's
complaints to management referred to sex—and as a result, nothing to
suggest that they were protected conduct. Nor could a reasonable person
believe that Sebeck's conduct, as described, violated Title VII. So, because the
plaintiff did not engage in protected conduct, her retaliation claim fails on
this fundamental level.
(ii) No Evidence of Causal Connection
But even if protected conduct was somehow established, there is no
evidence to show it caused her termination. To establish her prima facie case,
the plaintiff must prove that the desire to retaliate was the but-for cause of
her termination—that is, that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the
defendant. Wright, 730 F.3d at 737. The protected conduct must be a
determinative—not merely a motivating—factor in the adverse employment
decision. Id. at 738.8
Although the plaintiff does not articulate it, she seems to be advancing a cat's-paw theory
of liability, in which an employer may be vicariously liable for an adverse employment
action if one of its agents—other than the ultimate decisionmaker—is motivated by
retaliatory animus and intentionally and proximately causes the action. See, Bennett, 721
F.3d at 551; Guimaraes, 674 F.3d at 972; see also Staub v. Proctor Hosp., 131 S. Ct. 1186,
1194 (2011). The term is derived from one of Aesop's fables, in which "a monkey induces a
cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning
8

- 14 -

It generally requires "more than a temporal connection to establish a
retaliation claim." Id. at 738-39 (quotation omitted); see, Hervey, 527 F.3d at
723; Wallace, 415 F.3d at 859. Without such a requirement, "an employer
seeking to address the problem of underperforming employees could be
paralyzed by the fear (or reality) of retaliation lawsuits, and unable to
manage its workforce." Hervey, 527 F.3d at 726. And in this case, even the
temporal connection is weak. While the plaintiff was fired only a few days
after the investigation into her formal MyHR complaint was closed, it was
several weeks after the complaint was made—and several months after the
plaintiff began complaining to management about Sebeck's alleged conduct.
For temporal proximity alone to show a causal link between a discharge and
the filing of a complaint, it must be "very close." Wallace, 415 F.3d at 859
(quotation omitted). The Court is not persuaded that the 2 months between
the formal complaint and the plaintiff's termination—and the approximately
6 months between the plaintiff's initial complaints and her termination—are
sufficiently close. See id. (citing Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001)). And the significance of any temporal proximity may be
undercut by evidence—as is present here—that the employer had been
concerned about a problem with the employee's performance before the
employee engaged in protected activity. See, Guimaraes, 674 F.3d at 978;
Hervey, 527 F.3d at 723. Simply put, there is nothing in the record to support
an inference that the decision to fire the plaintiff was motivated by
retaliatory animus.
(iii) No Evidence that Reasons for Termination Were Pretextual
And even if the plaintiff had managed to piece together a prima facie
case of retaliation, she has failed to present evidence sufficient for a
reasonable jury to find that PayPal's legitimate, non-discriminatory reason
for her termination—her job performance—was a pretext for retaliation in
violation of Title VII. See Guimaraes, 674 F.3d at 978. An employee may
demonstrate pretext by two different methods. See, Guimaraes, 674 F.3d at
975; Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006). She
may show pretext by persuading the Court that retaliatory animus more
likely motivated her employer. See id. Or she may show that the employer's
explanation is unworthy of credence because it has no basis in fact. See id.
Either route amounts to showing that a prohibited reason, rather than the
employer's stated reason, actually motivated the termination. Guimaraes,
674 F.3d at 975.
its paws in the process, the monkey makes off with the chestnuts and leaves the cat with
nothing." Staub, 131 S. Ct. at 1190 n.1.

- 15 -

As should be evident from the discussion above, the first approach does
not avail the plaintiff. Under that method, the employee rebuts the
employer's ultimate factual claim regarding the absence of retaliatory intent
by demonstrating that sufficient evidence of intentional retaliation exists for
a jury to believe the plaintiff's allegations and find that the proffered
explanation was not the true motivating explanation. Stallings, 447 F.3d at
1052. In other words, the employee may concede that the proffered reason for
the termination would have been a sufficient basis for the adverse action
while arguing that the employer's proffered reason was not the true reason
for the action. Id. The plaintiff has not made such a concession, and as
discussed above, she does not have evidence of intentional retaliation.
So, the question is whether the plaintiff can rebut PayPal's proffered
explanation by establishing that it has no basis in fact. Id. To carry this
burden, she must show that the employer's proffered reason was "unworthy
of credence." Wallace, 415 F.3d at 860 (quotation omitted). She may do so by
showing, for instance, that her performance was favorably reviewed before
she was terminated, that similarly situated employees who did not engage in
protected activity were treated more leniently, that the employer changed its
explanation for why it fired her, or that the employer deviated from its
policies. Stallings, 447 F.3d at 1052.
The plaintiff attacks PayPal's justification for firing her—her job
performance—with a mélange of accusations. Their relevance is not always
well explained. The plaintiff presents evidence from former co-workers and
her current employer suggesting that she is a good worker. Filing 50 at 11;
filing 52-3 at 4; filing 52-13 at 1-4.9 She disputes some of the details about the
incidents that PayPal used to justify firing her. Filing 50 at 4-5, 8; filing 5210 at 2-5. And she accuses Willey and others of not permitting her to explain
herself, conducting an ineffective investigation, and lying about her. Filing 50
at 5, 8; filing 52-11 at 2-5; filing 52-12 at 1.

The defendants have objected to the plaintiff's exhibits on several grounds, including that
they are not properly sworn and authenticated as required by NECivR 7.1(b)(2)(C) and Fed.
R. Civ. P. 56(c)(4). The Court has elected to overlook these deficiencies—primarily because
they do not change the result, but also because some of them are at least potentially
curable. See DG&G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 82526 (8th Cir. 2009); see also Gannon Int'l Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012)
(citing Fed. R. Civ. P. 56(c)(2)). The Court has, instead, pieced together the pleadings and
evidence as best it can. But in the end, it is counsel's responsibility, not the Court's, to make
sure that things are filed correctly. The Court has interpreted the plaintiff's evidence and
arguments "as favorably as the record allows." See Brown, 711 F.3d at 888. The plaintiff's
counsel should be aware, however, that the Court may not be willing to undertake that
effort again. See id. at 888 n.5.
9

- 16 -

To begin with, the statements proffered by former co-workers and the
plaintiff's current employer are not compelling. The plaintiff's former coworkers say that she was a helpful colleague and a nice person. Filing 52-3 at
4; filing 52-13 at 3-4. The Court has no reason to doubt that. And the
plaintiff's supervisor at her current employer, an assisted living facility, has
good things to say about the plaintiff's ability and dedication to perform that
job. Filing 52-13 at 1-2. Again, the Court has no reason to doubt that. But no
part of that evidence contradicts, or even calls into question, the specific,
objective reasons PayPal gave for firing the plaintiff.
The plaintiff's other contentions fare better, but not by much. It is
important to remember that a federal court is not a super-personnel
department with authority to review the wisdom or fairness of the business
judgments made by employers. See, Guimaraes, 674 F.3d at 977; Stallings,
447 F.3d at 1052; Wallace, 415 F.3d at 860. The evidence must do more than
raise doubts about the wisdom and fairness of the supervisor's opinions and
actions—it must create a real issue as to the genuineness of the supervisor's
perceptions and beliefs. Hervey, 527 F.3d at 725. And significantly, at her
deposition, the plaintiff was unable to meaningfully dispute the information
set forth in the "Conversation Memo," the "Corrective Counseling" memo,
Willey's report on her investigation into the plaintiff's performance, or the
termination notice issued to the plaintiff when she was fired. Filing 47-2 at
62, 67-73, 85-86, 90-91. That leaves very little reason to question the
accuracy of the information on which the plaintiff's firing was based.
In her affidavit opposing summary judgment (as opposed to her
deposition), the plaintiff does claim that the system used to mark cases as
"already worked" and transfer them was flawed and prone to errors. Filing
52-10 at 2-3. She contends that the co-workers with whom she was compared,
for purposes of evaluating her "case dumping" rate, were not "apple to apples"
for purposes of comparison. Filing 52-10 at 2. She also claims that other
agents commonly made the same mistakes that she did with respect to
logging in and out of her phone. Filing 52-10 at 4-5. She presents some rough
calculations that, she claims, shows she was a good employee. Filing 52-11 at
1. And, she claims, she was not given an opportunity to defend herself. Filing
52-12 at 1.
But the appropriate scope of investigation is a business judgment, and
shortcomings in an investigation do not by themselves support an inference of
retaliation. See Guimaraes, 674 F.3d at 979. And the failure to discipline
other employees does not prove that the plaintiff was treated differently,
without evidence that those employees were similarly situated except for not
engaging in protected activity. See Hervey, 527 F.3d at 735. The plaintiff's
mathematical attempt to prove that she was a good worker means little
- 17 -

without any frame of reference for what error rate would be acceptable, and
Willey's investigation suggested that the plaintiff's performance was
meaningfully different from her colleagues.10 There is no evidence that
PayPal's policies with respect to "case dumping" or phone logins were applied
inconsistently to other employees who were similarly situated in all relevant
respects. See Wallace, 415 F.3d at 860. Even taken together, there is simply
nothing here to suggest that the decision to terminate the plaintiff, however
unfair the plaintiff might believe it to have been, was motivated by a desire to
retaliate.
The plaintiff also suggests that Willey lied to the MyHR investigator
with respect to the formal harassment complaint. Filing 50 at 8; filing 52-11
at 2. There is no clear explanation for why that, even if true, would prove
that the plaintiff was retaliated against for making the complaint. But more
fundamentally, the plaintiff's suggestion is contrary to the record. The
plaintiff claims that in an email to the investigator, Willey "falsely claimed
that [the plaintiff] was talking about the case to other agents and spreading
gossip like wildfire." Filing 52-11 at 2; see also filing 50 at 8. The plaintiff
claims that she "was not discussing anything" about Sebeck or the
harassment complaint with other agents. Filing 52-11 at 4. But by the
plaintiff's own admission, she had learned (and reported to Willey) that
Sebeck was supposedly discussing the case with other agents—by talking to
another agent about the case.11 See filing 52-11 at 2-3.
In sum, there is simply not sufficient evidence for a reasonable jury to
find that the plaintiff was targeted for termination because she complained
about Sebeck. Title VII is a shield to protect employees from retaliation for
exercising their right to challenge unlawful discrimination, "not a cudgel to
be wielded by underperforming . . . employees to prevent justified, nondiscriminatory employment termination." Brown, 711 F.3d at 894. It does not
provide an employee with immunity for past and present inadequacies or
unsatisfactory performance. Jackson v. St. Joseph State Hosp., 840 F.2d
The plaintiff essentially complains that the co-workers with whom she was compared
were not similarly situated to her. See filing 52-10 at 3. But PayPal has still presented more
evidence of how the plaintiff compared to other employees than the plaintiff has, because
the plaintiff hasn't presented any.
10

The plaintiff also relies on several emails among Willey and MyHR consultants about the
plaintiff's termination. It is unclear whether that evidence is meant to support the
plaintiff's Title VII claims or her FMLA claim (or even her state-law tort claim). But
because the emails directly implicate the FMLA, the Court has chosen to address them
below, in that context. As will be apparent, the Court's discussion below is equally
dispositive of any support (however tenuous) that the emails might provide the plaintiff's
Title VII claims.
11

- 18 -

1387, 1390 (8th Cir. 1988). In this case, even if the plaintiff had engaged in
activity protected by Title VII (which she did not), and even if she made a
prima facie case of retaliation (which she also did not), she has failed to
present evidence sufficient to show that PayPal's stated reasons for firing her
were pretextual. Accordingly, the plaintiff's Title VII claims must be
dismissed.
3. FMLA CLAIMS
The FMLA, as relevant, provides an eligible employee with 12
workweeks of unpaid leave "[i]n order to care for the spouse, or a son,
daughter, or parent, of the employee," who has a serious health condition. 29
U.S.C. § 2612(a)(1)(C). The FMLA prohibits employers from interfering with
an employee's exercise of FMLA rights, or discharging or otherwise
discriminating against an employee for opposing a practice the FMLA makes
unlawful. 29 U.S.C. § 2615(a). The Eighth Circuit has held that the statute
prohibits retaliation against an employee who exercises her FMLA rights.
Lovland v. Emp'rs Mut. Cas. Co., 674 F.3d 806, 810-11 (8th Cir. 2012).
So, an employee can make two types of FMLA claim. See, Bone v. G4S
Youth Servs., LLC, 686 F.3d 948, 958 (8th Cir. 2012); Chappell v. Bilco Co.,
675 F.3d 1110, 1115 (8th Cir. 2012); Wisbey v. City of Lincoln, 612 F.3d 667,
675 (8th Cir. 2010), disapproved on other grounds, Torgerson, 643 F.3d at
1043; Stallings, 447 F.3d at 1050. In an interference claim, the employee
alleges that an employer denied or interfered with her substantive rights
under the FMLA; and in a retaliation claim, the employee alleges that the
employer discriminated against her for exercising her FMLA rights. See id.
In an interference claim pursuant to 29 U.S.C. § 2615(a)(1), the employer's
intent in denying the benefit is immaterial; by contrast, a retaliation claim
under 29 U.S.C. § 2615(a)(2) requires proof of an impermissible
discriminatory animus, typically with evidence analyzed under the
McDonnell Douglas burden-shifting framework. Lovland, 674 F.3d at 811; see
Wisbey, 612 F.3d at 675.
It is not clear what type of claim the plaintiff is trying to assert here.
Part of that is the plaintiff's fault. Her complaint merely asserts that PayPal
"violated the Plaintiff's rights" under the FMLA, although her claim for
continuing damages implies a retaliation claim, insofar as such damages
would seem to flow from her termination, not any lost opportunity to take
leave. See filing 2-1 at 1. And the plaintiff's brief opposing summary
judgment cites neither any specific provision of the FMLA nor any caselaw
applying it, although the words "discrimination" and "retaliation" are used,
also suggesting a retaliation claim. Filing 51 at 10-11. But in the plaintiff's
defense, the line between the two categories is not hard and fast, and
- 19 -

confusion often arises. Stallings, 447 F.3d at 1051. And in any event, the
Court finds summary judgment proper as to both types of claim. See Wisbey,
612 F.3d at 675.
(a) FMLA Interference Claim
In an interference claim, an employee must only show that he or she
was entitled to an FMLA benefit that was denied. Wisbey, 612 F.3d at 675;
Stallings, 447 F.3d at 1050. An employee can prove interference with an
FMLA right regardless of the employer's intent. Chappell, 675 F.3d at 1115;
Stallings, 447 F.3d at 1050. But the FMLA is not a strict liability statute, and
an employer is not liable for interference if an adverse employment decision
was unrelated to the employee's use of FMLA leave. See, Bone, 686 F.3d at
958-59; Chappell, 675 F.3d at 1115; Lovland, 674 F.3d at 812; Stallings, 447
F.3d at 1050-51; Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972,
977, 980 (8th Cir. 2005). The plaintiff cannot prove an interference claim in
this case for two very fundamental reasons: she was not entitled to an FMLA
benefit, and she was never denied any benefit that she requested.
First, the plaintiff was not entitled to an FMLA benefit because the
reason she sought and took leave—the care of her ailing grandmother—is not
protected by the FMLA. As noted above, the FMLA authorizes leave to care
for parents, but not grandparents. See, 29 U.S.C. § 2612(a)(1)(C); Krohn v.
Forsting, 11 F. Supp. 2d 1082, 1091-92 (E.D. Mo. 1998); Bauer v. DaytonWalther Corp., 910 F. Supp. 306, 308 n.2 (E.D. Ky. 1996). Parents may
include biological parents or an individual who has stood in loco parentis to
an employee when the employee was a son or daughter. 29 U.S.C. § 2611(7);
Krohn, 11 F. Supp. 2d at 1091. There is nothing here to suggest that the
plaintiff's grandmother, however beloved, stood in loco parentis to the
plaintiff.12 See Krohn, 11 F. Supp. 2d at 1092.
Second, the record is clear that the plaintiff was never denied any
benefits that she requested. In the absence of an actual denial of FMLA
leave, the plaintiff's FMLA rights were not interfered with. See Wisbey, 612
F.3d at 675.
That being said, this is the point at which the line between interference
and retaliation claims, if it really exists at all, becomes very hard to see. The
The Court recognizes that this issue was not raised by the defendants, although it is not
clear why. The Court has, therefore, considered whether the plaintiff had appropriate
notice of this potential basis for summary judgment. See Fed. R. Civ. P. 56(f). The Court
nonetheless finds it appropriate to discuss the issue, for two reasons. First, it is not unfair
to expect the plaintiff to be aware of the most fundamental element of her prima facie case.
And second, the Court has other reasons to dismiss the plaintiff's FMLA claim, so this point
only reinforces the Court's conclusion.
12

- 20 -

Eighth Circuit has said, and reaffirmed, that a retaliation claim, not an
interference claim, exists when the employer grants every request that the
employee made to take FMLA leave. Wisbey, 612 F.3d at 675; Stallings, 447
F.3d at 1051; see Lovland, 674 F.3d at 810-12. But an interference claim
covers not only refusing to authorize FMLA leave, but also manipulation by
an employer to avoid responsibilities under the FMLA. Dollar v. Smithway
Motor Xpress, Inc., 710 F.3d 798, 806 (8th Cir. 2013). The Eighth Circuit has
therefore concluded that terminating an employee in response to a qualifying
employee's assertion of rights may also qualify as interference. Id.; see also
Pereda v. Brookdale Senior Living Cmtys, Inc., 666 F.3d 1269, 1274 (11th Cir.
2012) (holding that employees are protected from interference prior to the
occurrence of a triggering event). So, if the plaintiff had evidence that she
was fired because she was about to begin FMLA leave—that is, that her
termination was causally linked to impending leave—it would arguably
support either an interference claim, or a retaliation claim, or both,
depending on which cases you read.
But the plaintiff has no such evidence. One thing that is clear is that
FMLA leave does not insulate an employee from termination for reasons
unrelated to the FMLA. See, e.g., Bone, 686 F.3d at 959; Throneberry, 403
F.3d at 979-80. In other words, as long as an employer can show a lawful
reason for termination, i.e., a reason unrelated to an employee's exercise of
FMLA rights, any resulting interference with the employee's FMLA leave
rights will be justified. See Throneberry, 403 F.3d at 979. The plaintiff claims
that the evidence is sufficient to support a finding that her termination was
causally related to the FMLA. The Court will discuss that evidence in more
detail below, in the context of the plaintiff's retaliation claim. For the
moment, it suffices to say that for all the reasons discussed below (and above,
in the context of the plaintiff's Title VII retaliation claim), the Court finds
that the evidence would not support a finding that the plaintiff was fired for
any reason other than the reasons given by PayPal.
(b) FMLA Retaliation Claim
To establish a prima facie claim of retaliation, the plaintiff must show
that (1) she engaged in activity protected by the FMLA, (2) she suffered an
adverse employment action, and (3) there was a causal connection between
her exercise of FMLA rights and the adverse employment action. Chappell,
675 F.3d at 1116-17; Wisbey, 612 F.3d at 676. If she does so, the burden shifts
to PayPal to promulgate a legitimate, non-discriminatory justification for its
conduct, and then back to the plaintiff to rebut that justification as a pretext

- 21 -

for discrimination.13 See, Chappell, 675 F.3d at 1117; Stallings, 447 F.3d at
1051-52.
As before, there is no dispute that the plaintiff suffered an adverse
employment action. And the Court will assume that there is at least a
genuine issue of material fact as to whether she engaged in protected
activity.14 But the Court finds no causal connection between that activity and
her termination.
The plaintiff's argument rests almost entirely on an email Willey sent
to MyHR consultants regarding the plaintiff's termination. After Willey
investigated the plaintiff's job performance and recommended to MyHR that
the plaintiff be fired, she exchanged emails with MyHR consultants regarding
administrative aspects of the termination. Filing 52-10 at 1. That process
began on Monday, June 25, 2014, and by Wednesday, one of the consultants
expressed that they "should try to complete the termination when [the
plaintiff] comes in for her shift on Friday." Filing 52-9 at 5; filing 52-10 at 1.
Willey replied, stating that,

It is not clear whether the plaintiff might be arguing that she has direct evidence of
discrimination, such that the McDonnell Douglas burden-shifting analysis is not necessary.
See Chappell, 675 F.3d at 1110. But the Court finds no such direct evidence, for the same
reasons it finds that the evidence does not establish a causal connection under the
McDonnell Douglas framework.
13

This is far from certain, because as the Court discussed earlier, there is nothing in the
record to suggest that the plaintiff was actually entitled to FMLA leave to care for her
grandmother. But the Court also assumes that an FMLA retaliation claim is akin to a claim
under Title VII or another similar anti-retaliation provision, in that a request for leave may
be protected activity under the FMLA if the employee had a reasonable belief that she was
entitled to FMLA leave. See, Surprise v. Innovation Grp., Inc./First Notice Sys., Inc., 925 F.
Supp. 2d 134, 146 (D. Mass. 2013); Williams v. Crown Liquors of Broward, Inc., 878 F.
Supp. 2d 1307, 1311-12 (S.D. Fla. 2012).
14

Although it would seem apparent to a reasonable person that a grandparent's care does not
establish a right to FMLA leave, the Court also observes that PayPal's benefits
administrator used "FMLA" forms to manage the plaintiff's leave. The FMLA is a floor, not
a ceiling—an employer can provide more generous leave than the FMLA requires, and it
would make sense for the employer to use the same paperwork regardless of whether the
strict legal requirements of the FMLA were implicated. An employer is not estopped from
denying FMLA eligibility later. See Walker v. Trinity Marine Prods., Inc., 721 F.3d 542, 545
(8th Cir. 2013); see also Dawkins v. Fulton Cty. Gov't, 733 F.3d 1084, 1089-91 (11th Cir.
2013). But there might at least be a tenable argument that if an employer repeatedly allows
something it calls "FMLA leave," such conduct might form the basis for an employee's
reasonable, good-faith belief that asking for more leave under the same circumstances
would be protected by the FMLA.

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I agree we should complete the term[ination] on Friday. [One of
the MyHR consultants] had mentioned we should tell [the
plaintiff] about the additional research completed and our
findings, type up her response and email it to you (in case you
feel there are any red flags), and then terminate. My concern is
that the last time I had a rough conversation (regarding the
behavior that led to [the plaintiff's] most recent [corrective
counseling]), she claimed FMLA and left for the day. I'm worried
she may do the same after we have this conversation. She also
said last weekend after getting her [corrective counseling] that
she may file a new FMLA claim to take an extended period of
work off due to her grandmother being sick with cancer. I can see
where if she feels she is going to be fired, she will leave and
contact [PayPal's benefits administrator] to file this claim,
knowing it will extend her employment with us.15
Filing 52-9 at 5. After some other administrative tasks were completed, the
plaintiff was, indeed, fired on Friday. Filing 47-2 at 149.
The plaintiff tries to make a mountain out of that molehill, asserting
that Willey's "hateful emails," in which she "feverishly and obsessively
plotted the [plaintiff's] discharge," are "specific evidence of discrimination and
retaliation." Filing 50 at 3; filing 51 at 10. That goes too far. To begin with,
the MyHR consultant had already decided that the plaintiff should be
terminated, and that she should be terminated on Friday. That made sense:
the plaintiff's work schedule was three 12-hour shifts and one 4-hour shift, on
Friday, Saturday, and Sunday. Filing 2 at 3. So, at the time of this email
exchange, Friday was the plaintiff's next shift, and her first of the week.
And more to the point, the plain meaning of Willey's email is that she
was concerned about misuse of the FMLA to avoid a legitimate termination.
The specific point being discussed was not whether to fire the plaintiff, or
even when to fire the plaintiff—it was whether to hold a separate
conversation with the plaintiff, about the results of Willey's investigation,
before actually firing her. Read in context, nothing about the email suggests
that the plaintiff was being fired because of activity protected by the FMLA—
rather, it suggests the opposite. And the plaintiff admits that she did leave
work after her conversation with Willey about the issues described in the
June 24, 2012 "corrective counseling" memo, taking "FMLA leave." Filing 47-

Willey's belief was legally misplaced—as noted above, FMLA leave does not prevent an
employee from being fired for misconduct, or any other lawful reason. See Throneberry, 403
F.3d at 977-79.
15

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2 at 119; filing 47-2 at 6; filing 52-11 at 1. The plaintiff contends that she had
not left work because of her conversation with Willey, filing 52-11 at 5, but
there was at least a factual basis for the concern expressed in Willey's email.
And the plaintiff's "unchallenged use" of "FMLA leave" on numerous other
occasions supports PayPal's explanation that the plaintiff was terminated
only when her job performance was discovered to be deficient. See Chappell,
675 F.3d at 1118.
In sum, Willey's email, while it does mention the possibility of FMLA
leave, does not support an inference that the plaintiff was terminated in
order to interfere with her legitimate rights under the FMLA, or to retaliate
against her for exercising them. As a result, it does not help the plaintiff meet
her prima facie case, because it does not show a causal connection between
her exercise of FMLA rights and the adverse employment action.
And even if the plaintiff had established a prima facie case for
retaliation, the evidence does not demonstrate that PayPal's proffered
reasons for firing her were pretextual. As discussed above in the context of
the plaintiff's Title VII retaliation claim, she has presented no evidence
demonstrating that PayPal's proffered reason for firing her had no basis in
fact. See Stallings, 447 F.3d at 1052. Nor is there any evidence of similarly
situated employees who had not taken FMLA leave, or expressed an intent to
take FMLA leave, being treated differently. See id. The plaintiff must prove
more than the prima facie case to prove pretext, because unlike evidence
establishing the prima facie case, evidence of pretext and discrimination is
viewed in light of the employer's justification. Chappell, 675 F.3d at 1117.
She has not done so.
The Court's task is to decide whether the record reveals issues of
material fact that would preclude the entry of summary judgment in favor of
PayPal. See Stallings, 447 F.3d at 1052. Even taken in the light most
favorable to the plaintiff, see id., the evidence here would not support a
finding that the plaintiff had been fired to interfere with her FMLA rights, or
to retaliate against her for doing so. Her FMLA claim will be dismissed.
4. TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP
Finally, the plaintiff alleges a state-law claim for tortious interference
with a business relationship against Sebeck, Willey, and Johnson.16 The
It does not appear from the plaintiff's complaint that her Title VII or FMLA claims were
brought against anyone but PayPal. See, filing 2 at 11-13; filing 2-1 at 1. That makes sense
for Title VII, which does not provide for an action against an individual supervisor or coworker. See, Powell, 445 F.3d at 1079; Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1111
(8th Cir. 1998). The definition of "employer" under the FMLA, however, has been held to
include individual supervisors acting in the employer's interest. See Darby v. Bratch, 287
16

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elements of such a claim are: (1) the existence of a valid business relationship
or expectancy, (2) knowledge by the interferer of the relationship or
expectancy, (3) an unjustified intentional act of interference on the part of the
interferer, (4) proof that the interference caused the harm sustained, and (5)
damage to the party whose relationship or expectancy was disrupted. Huff v.
Swartz, 606 N.W.2d 461, 466 (Neb. 2000). An at-will employment
relationship can be the subject of a tort action for intentional interference
with a business relationship or expectancy, and such an action may be
maintained against a co-employee who acts as a third party to the
relationship by taking actions for his or her own personal benefit, or for the
benefit of an entity other than the employer. Id. at 470.
But here, there is no evidence that Willey or Johnson acted for their
own personal benefit or the benefit of any entity other than PayPal. Even if
their actions had been taken in contravention of Title VII or the FMLA, that
would not establish that they had a personal interest in the plaintiff's
termination. The plaintiff suggests that Willey acted from a personal animus
against the plaintiff, but has presented no evidence to substantiate that
belief, other than her own speculation. Even if Willey had behaved badly (and
there is scant evidence of that), "there is no evidence that [she] did so in any
capacity other than as [a PayPal] manager addressing a job performance
issue involving a subordinate employee." See id. at 469. The defendants have
presented evidence establishing how and why the plaintiff was terminated.
The plaintiff has presented no evidence supporting a reasonable inference
that the actions about which the plaintiff complains were not taken on behalf
of PayPal. See id. at 470.
Nor is there any evidence to suggest that firing the plaintiff was
unjustified. The factors to be considered in determining whether interference
with a business relationship is unjustified may include the nature of the
actor's conduct, the actor's motive, the interests of the other with which the
actor's conduct interferes, the interests sought to be advanced by the actor,
the social interests in protecting the freedom of action of the actor and the
F.3d 673, 680-81 (8th Cir. 2002); see also, Saavedra v. Lowe's Home Ctrs., Inc., 748 F. Supp.
2d 1273, 1291-96 (D.N.M. 2010) (collecting cases); Longstreth v. Copple, 101 F. Supp. 2d
776, 778-81 (N.D. Iowa 2000) (collecting cases). To be clear: to the extent that the plaintiff's
Title VII claims might have been asserted against any individual defendant, they are
dismissed, for all the reasons stated above, and because none of the individual defendants
are subject to liability under Title VII. And to the extent that the plaintiff's FMLA claim
might have been brought against any individual defendant, it is dismissed, for all the
reasons stated above, because Willey and Johnson did not have sufficient authority to hire
or fire the plaintiff, and because Sebeck neither had sufficient authority nor was involved in
any of the relevant decisions. See Saavedra, 748 F. Supp. 2d at 1292-96.

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contractual interests of the other, the proximity or remoteness of the actor's
conduct to the interference, and the relations between the parties. Id. at 468
(citing the Restatement (Second) of Torts § 767 (1979)). The issue in each case
is whether the interference is unjustified or not under the circumstances—
whether, upon a consideration of the relative significance of the factors
involved, the conduct should be permitted without liability, despite its effect
of harm to another. Id. (citing the Restatement, § 767 cmt. b).
The Court's discussion of whether PayPal's reasons for firing the
plaintiff were pretextual, set forth at length above, is substantially applicable
here as well. There is nothing to suggest that the plaintiff's termination was
not sincerely motivated by concerns about her job performance. As a result,
when the relevant factors are weighed, there is also nothing to suggest that
the plaintiff's termination was unjustified.
There is even less to support the plaintiff's case against Sebeck. Even if
he harassed the plaintiff, as he has been accused of, there is no evidence that
his conduct resulted in the plaintiff's termination. The Court's dismissal of
the plaintiff's Title VII retaliation claim is also dispositive on this point.
In sum, even if some of the individual defendants were partly
responsible for severing the plaintiff's employment relationship with PayPal,
their acts were not tortious. Willey and Johnson were acting in the scope of
their employment, and Sebeck was not involved in the actual termination. So,
the plaintiff's claim for tortious interference with a business relationship will
be dismissed.
IT IS ORDERED:
1.

The defendants' motion for summary judgment (filing 45) is
granted.

2.

The plaintiff's complaint is dismissed.

3.

A separate judgment will be entered.

Dated this 29th day of April, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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