Ameen v. Amphenol Printed Circuits, Inc.

Filing 48

///ORDER granting 31 Motion for Summary Judgment. Clerk shall enter judgment and close the case. So Ordered by District Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Murad Y. Ameen
v.

Civil No. 12-cv-365-LM
Opinion No. 2013 DNH 177

Amphenol Printed Circuits, Inc.
O R D E R
Murad Y. Ameen has sued his former employer, Amphenol
Printed Circuits, Inc. (“Amphenol”), claiming that Amphenol
discharged him in violation of the Family and Medical Leave Act
of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654.
Amphenol’s motion for summary judgment.

Before the court is

Ameen objects.

court heard oral argument on December 11, 2013.

The

For the reasons

that follow, Amphenol’s motion for summary judgment is granted.

Summary Judgment Standard
“Summary judgment is warranted where ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’”

McGair v. Am. Bankers Ins. Co.

of Fla., 693 F.3d 94, 99 (1st Cir. 2012) (quoting Fed. R. Civ.
P. 56(a); citing Rosciti v. Ins. Co. of Penn., 659 F.3d 92, 96
(1st Cir. 2011).

“In determining whether a genuine issue of

material fact exists, [the court] construe[s] the evidence in

the light most favorable to the non-moving party and make[s] all
reasonable inferences in that party’s favor.”

Markel Am. Ins.

Co. v. Díaz-Santiago, 674 F.3d 21, 30 (1st Cir. 2011) (citing
Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004)).

“The object

of summary judgment is to ‘pierce the boilerplate of the
pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”

Dávila v. Corp. de P.R.

para la Diffusión Púb., 498 F.3d 9, 12 (1st Cir. 2007) (quoting
Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 7 (1st Cir.
2004)).

“[T]he court’s task is not to weigh the evidence and

determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

Noonan v. Staples, Inc., 556

F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation
marks omitted).

“The nonmovant may defeat a summary judgment

motion by demonstrating, through submissions of evidentiary
quality, that a trialworthy issue persists.”

Sánchez-Rodríguez

v. AT&T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012)
(quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.
2006)).
Background
The facts recited in this section are undisputed.

At all

times relevant to this matter, Ameen was employed by Amphenol.
From September of 2008 until his discharge on June 27, 2012, he
held the position of second-shift drill-department group leader.
2

Under the heading “Duties / Responsibilities / Essential
Functions,” Amphenol’s job description for department leaders
such as Ameen lists, among other things: “Assists in planning
overtime staffing of the department to support output
requirements.”
2.

Def.’s Mem. of Law, Ex. 7 (doc. no. 31-10), at

Under the heading “Education / Training / Skills /

Experience Required,” the job description lists, among other
things: “Ability to work overtime.”

Id.

As the second-shift

drill-department group leader, Ameen reported to Joseph Silva.
Silva reported to Raymond Pratt (Operations Manager, Production
Manager), and Pratt reported to Christine Harrington (Operations
Director).
In anticipation of the birth of his second child, Ameen
requested a leave under the FMLA, running from March 12 to March
26, 2012.

Ameen’s request was approved, as was a request for an

extension.

As a result, it appears that Ameen did not work at

all during the week of March 12, worked half time during the
weeks of March 19 and 26, and returned to full-time work on
April 2.
Two days later, Ameen requested three and one half weeks of
extended personal leave, from April 26 to May 21, to travel to
Iraq to attend to various personal matters.

The next day, Ameen

met with Silva, Pratt, and Amphenol’s director of human
resources, Valerie Hartlen, to discuss his request for leave.
3

Ameen’s deposition includes the following testimony concerning
that meeting:
Q.

Okay. And during that meeting, you said that you
would help out with the overtime ---

A.

I said I’ll try.

Q.

--- when you --- let me just finish the question.
Okay?

A.

Yes.

Q.

You said that you would help out with the
overtime when you came back from this month-long
personal leave; isn’t that correct?

A.

Yes.

Def.’s Mem. of Law, Ex. 1, Ameen Dep. (doc. no. 31-4) 150:13-22
(boldface in the original).

After Ameen returned from his

personal leave on May 21, he declined several requests that he
work overtime, citing his need to care for his wife, who was
suffering from high blood pressure, and his newborn child.
On June 27, 2012, Amphenol terminated Ameen’s employment.
The decision to discharge him was made by Harrington.

In a

company statement, Amphenol explained Harrington’s decision to
discharge Ameen this way:
It was brought to APC’s [i.e., Amphenol’s] attention
on 6/22 that on a regular basis, Murad Ameen leaves
the drill department for extended periods during his
regular assigned work hours. It was also noted that
Murad is on his cell phone throughout the shift. On
Friday 6/22, APC reviewed the door access report for
the month of June . . . . This data showed that
Murad, on a daily basis, punches out of ADI [the
system that Amphenol uses to monitor the amount of
4

time worked by its hourly employees] for his allowed
lunch period at approximately 5:40 pm and back in
approximately 30 minutes later as allowed in the APC
standard policies. However, it was discovered that
Murad was then leaving the building approximately 30
to 60 minutes later for an entire 1 hour period. Upon
this discovery APC found that this behavior has been
consistent and on-going since 2010.
Based on this information Murad has been in violation
of the company lunch and break policy which allows for
one 15 minute paid break and one 1/2 hour unpaid lunch
period. 1) Murad has been in actuality taking [a] 1/2
hour paid break and a 1/2 hour unpaid lunch which is
not policy, [and] not approved by any APC management.
It is estimated that this has cost APC 1.25 hours of
labor per week. At the rate of $17.119 per hour it
equates to $1,17.35/year. Murad is in violation of
timecard procedures and has been falsifying his
timecard for 2 years by wanding out for lunch and then
working in the area and leaving the facility at a
later time. 2) Although it was approved to combine
his 1/2 hour unpaid lunch time and 15 minute paid
break at the supervisory level this is not an
acceptable practice. It was not approved through Sr.
Management as a policy deviation.
This is not Murad’s first violation of company
procedures or policies and [he] was, within the last 6
months, given a written warning for not following
documented procedures in the drill department. As a
group leader and APC employee Murad’s inability to
follow procedures is behavior that cannot be tolerated
in the business.
Def.’s Mem. of Law, Ex. 25 (doc. no. 31-28), at 2.
The events leading up to Ameen’s discharge are as follows.
On June 22, 2012, Paul Connors, Amphenol’s first-shift drilldepartment group leader, told Pratt that Ameen had been seen
leaving the building during work hours for an hour at a time.
Pratt then asked Hartlen to gather data on Ameen for the month

5

of June from the two separate systems that track the amount of
time for which employees are paid (the payroll system) and the
amount of time they are in the building (the building system).
The data Hartlen collected demonstrated that Ameen had
been: (1) clocking out of the payroll system for about thirty
minutes each day while remaining clocked in on the building
system and, presumably, continuing to work; (2) clocking back
into the payroll system; (3) subsequently clocking out of the
building system and leaving the building for approximately one
hour while remaining clocked in on the payroll system.

Because

Ameen was allowed a thirty-minute unpaid lunch break and a
fifteen-minute paid break each day, his absence from the
building for one hour resulted in his being paid, on a daily
basis, for approximately fifteen more minutes than he actually
worked.

Ameen had permission to combine his thirty-minute

unpaid break with his fifteen-minute paid break to create a
forty-five minute block, and also had permission to turn that
forty-five minute block into a sixty-minute lunch break, if he
made up the extra fifteen minutes at the beginning or the end of
his shift.

Regarding his obligation to make up that time, as

opposed to making up the work, Ameen provided the following
deposition testimony:

6

Q.

He said you could combine your lunch and break?

A.

Combine and take more time on top of that, to
make it up when you work, come in early, stay
late.

Q.

Did you ask him to take more time than your
allotted break time?

A.

Yes. And make it up, the time. I was coming
early, working overtime, staying late sometimes.

Def.’s Mem. of Law, Ex. 1, Ameen Dep. (doc. no. 31-4) 67:6-12
(boldface in the original, underlining added).

Notwithstanding

Ameen’s agreement to make up the extra fifteen minutes he took
each day for his off-site lunch, the undisputed facts
demonstrate that for about two years, Ameen had not been making
up that time.
After Pratt reviewed Ameen’s time records for June, he
reported his findings to Harrington, who asked him to
investigate further.

On June 26, Pratt observed Ameen leaving

the building for an extended lunch break, and then examined the
payroll system and building system records to confirm what he
had seen.

Pratt reported his observations to Harrington who

then had Hartlen examine Ameen’s payroll system and building
system records for the previous two years.

Hartlen’s

examination demonstrated that Ameen’s practice of taking an
hour-long lunch break, and being paid for fifteen minutes more
than he actually worked, had been going on for at least two
years.

Based upon those findings, Harrington decided to
7

discharge Ameen, and had Pratt draft and re-draft the statement
quoted above.

It is undisputed that at the time Harrington

decided to discharge Ameen, she “was unaware of Mr. Ameen’s FMLA
leave.”

Pl.’s Mem. of Law (doc. no. 34-1) 9.

This action followed.

In it, Ameen claims that

notwithstanding Amphenol’s explanation for discharging him, it
actually terminated his employment for taking his formal FMLA
leave and/or declining to work overtime so that he could care
for his wife and newborn child which, in his view, was conduct
protected by the FMLA.
Discussion
Under the FMLA, “an eligible employee shall be entitled to
a total of 12 workweeks of leave during any 12-month period . .
. [b]ecause of the birth of a son or daughter of the employee
and in order to care for such son or daughter . . . [or] [i]n
order to care for the spouse . . . of the employee, if such
spouse . . . has a serious health condition.”
2612(a)(1)(A) & (C).

29 U.S.C. §

Moreover, it is “unlawful for any employer

to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided by [the FMLA],” 29
U.S.C. § 2615(a)(1), and it is also “unlawful for any employer
to discharge or in any other manner discriminate against any

8

individual for opposing any practice made unlawful by [the
FMLA],” 29 U.S.C. § 2615(a)(2).
In this circuit, the interference provision, § 2615(a)(1),
encompasses claims such as Ameen’s claim that Amphenol
retaliated against him for taking FMLA leave.

See Colburn v.

Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331-32 (1st
Cir. 2005).

As the court of appeals has explained:

The Act . . . prohibits employers from retaliating
against employees for exercising their statutory
rights. See 29 U.S.C. § 2615(a). Thus, an employer
cannot regard the taking of FMLA leave as a negative
factor in deciding to terminate an employee. See 29
C.F.R. § 825.220(c); Mellen v. Trustees of Boston
Univ., 504 F.3d 21, 26–27 (1st Cir. 2007). But,
although an employee who properly takes FMLA leave
cannot be discharged for exercising a right provided
by the statute, [he] nevertheless can be discharged
for independent reasons. Nagle v. Acton–Boxborough
Reg’l Sch. Dist., 576 F.3d 1, 3 (1st Cir. 2009).
Henry v. United Bank, 686 F.3d 50, 55 (1st Cir. 2012).

“[A]

crucial component of an FMLA retaliation claim is some animus or
retaliatory motive on the part of the plaintiff’s employer that
is connected to protected conduct.”

Pagán-Colón v. Walgreens of

San Patricio, Inc., 697 F.3d 1, 8 (1st Cir. 2012) (citing
Colburn, 429 F.3d at 335; Hodgens v. Gen. Dynamics Corp., 144
F.3d 151, 160 (1st Cir. 1998)).
The court of appeals has also recently delineated the
elements of an FMLA retaliation claim:
“To make out a prima facie case of retaliation [a
plaintiff] must show (1) he availed himself of a
9

protected right under the FMLA; (2) he was adversely
affected by an employment decision; (3) there is a
causal connection between the employee’s protected
activity and the employer’s adverse employment
action.” [Hodgens, 144 F.3d] at 161 (applying the
standard from McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), to FMLA cases).
McArdle v. Town of Dracut/Dracut Pub. Schs., 732 F.3d 29, 35
(1st Cir. 2013) (parallel citations omitted).

Under the

McDonnell Douglas burden-shifting framework mentioned in
McArdle,
a plaintiff employee must carry the initial burden of
coming forward with sufficient evidence to establish a
prima facie case of . . . retaliation. If he does so,
then the burden shifts to the employer “to articulate
some legitimate, nondiscriminatory reason for the
employee’s [termination]” . . . .
If the employer’s
evidence creates a genuine issue of fact, the
presumption of discrimination drops from the case, and
the plaintiff retains the ultimate burden of showing
that the employer’s stated reason for terminating him
was in fact a pretext for retaliating against him for
having taken protected FMLA leave.
Pagán-Colón, 697 F.3d at 9 (quoting Hodgens, 144 F.3d at 160-61;
citing McDonnell Douglas, 411 U.S. at 802).
Here, Amphenol argues that it is entitled to summary
judgment because: (1) Ameen has failed to establish a prima
facie case; (2) it has produced evidence of a legitimate
nondiscriminatory reason for discharging Ameen; and (3) Ameen
has failed to produce evidence from which a reasonable jury
could conclude that the decision to discharge him was tainted by
retaliatory animus or that Amphenol’s reason for discharging him

10

was a pretext for unlawful retaliation.

Ameen does not argue

that Amphenol has failed to carry its burden at the second stage
of the McDonnell Douglas framework, but disagrees,
categorically, with Amphenol’s arguments in favor of summary
judgment.

Amphenol’s argument concerning the lack of

retaliatory animus attributable to the decisionmaker is
persuasive and dispositive.
Turning to the first stage of the McDonnell Douglas
framework, “[t]he prima facie burden is ‘quite easy to meet.’”
Hodgens, 144 F.3d at 165 (quoting Villanueva v. Wellesley Coll.,
930 F.2d 124, 127 (1st Cir. 1991); citing Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

The court

assumes that Ameen has carried that light burden and further
assumes, without deciding, that Ameen’s protected conduct
included both the formal FMLA leave he took in March of 2012,
and his refusal to work overtime after he returned from personal
leave in late May.1

There is no dispute that Amphenol has

produced a legitimate nondiscriminatory reason for discharging
Ameen.

Thus, “any presumption of retaliatory animus created by

the prima facie case [has] evaporate[d].”

Henry, 686 F.3d at 56

(citing Hodgens, 144 F.3d at 160; Reeves v. Sanderson Plumbing
1

There is a colorable argument that Ameen’s refusal to work
overtime after his return from personal leave was not conduct
protected by the FMLA, but because Amphenol is entitled to
summary judgment on other grounds, there is no need to resolve
this complicated legal issue.
11

Prods., Inc., 530 U.S. 133, 142-43 (2000)).

Accordingly, at

stage three of the McDonnell Douglas framework, “to survive
summary judgment, [Ameen]’s burden is to demonstrate, without
the benefit of the animus presumption, a trialworthy issue on
whether [Amphenol’s] stated reason [for discharging him] was but
a pretext for retaliating against [him] for having taken
protected FMLA leave.”

Henry, 686 F.3d at 56 (citations

omitted).
There is, however, a predicate issue: imputation of
retaliatory animus to the decisionmaker.

To prove that he or

she was subjected to an adverse employment action in retaliation
for engaging in protected activity, “the employee must show that
the retaliator knew about [his] protected activity – after all,
one cannot have been motivated to retaliate by something [she]
was unaware of.”

Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139

(1st Cir. 2013) (citing Lewis v. Gillette, Co., 22 F.3d 22, 2425 (1st Cir. 1994); Alvarado v. Donahoe, 687 F.3d 453, 458-59
(1st Cir. 2012)).

Here, it is undisputed that Harrington, the

Operations Director who made the decision to discharge Ameen,
did not know that Ameen had ever taken FMLA leave.
that would be fatal to Ameen’s claim.

Ordinarily,

Ameen attempts to

overcome that problem by invoking the so-called cat’s paw theory
of liability to impute the retaliatory animus of Connors and
Pratt to Harrington.

That attempt, however, is unavailing.
12

Under the cat’s paw theory, which appears to have been
first adopted by the court of appeals for this circuit in
Cariglia v. Hertz Equipment Rental Corp., 363 F.3d 77 (1st Cir.
2004), a decisionmaker without the requisite knowledge to
retaliate may, under certain circumstances, be charged with the
retaliatory animus of a subordinate who is also the supervisor
of an employee who is adversely affected by an employment action
meted out by the decisionmaker.

As Ameen’s supervisor’s

superior, Pratt fits comfortably within the cat’s paw rubric.
Because Connors was Ameen’s peer rather than his superior, it is
not at all clear that he fits within the rubric but, for the
purpose of ruling on Amphenol’s summary-judgment motion, the
court will assume, without deciding, that Connors’ retaliatory
animus, if any, could also be imputed to Harrington.
In Cariglia, which involved a claim brought under the
Massachusetts law against age discrimination, Mass. Gen. L. ch.
151B, the court of appeals framed the question before it this
way: “whether corporate liability can attach if neutral
decisionmakers [such as Harrington], when deciding to terminate
an employee, rely on information that is inaccurate, misleading,
or incomplete because of another employee’s discriminatory
animus.”

363 F.3d at 83.

In answering that question in the affirmative, the court
cited with approval several decisions from other circuits:
13

The District of Columbia Circuit Court of Appeals
ruled that “[a]n unfavorable employment decision
resulting from inaccurate, discriminatorily-motivated
evaluations by the employee’s supervisors violates
Title VII,” even though the decisionmaker was
completely free of animus. Stoller v. Marsh, 682 F.2d
971, 972 (D.C. Cir. 1982). “When a supervisor . . .
deliberately places an inaccurate, discriminatory
evaluation into an employee’s file, he intends to
cause harm to the employee. . . . [T]he employer that is, the organization as a whole - cannot escape
Title VII liability simply because the final
decisionmaker was not personally motivated by
discrimination.” Id. at 977. . . .
The Seventh Circuit has held that “[a]n employer
cannot escape responsibility for wilful discrimination
by multiple layers of paper review, when the facts on
which the reviewers rely have been filtered by a
manager determined to purge the labor force of older
workers.” Gusman v. Unisys Corp., 986 F.2d 1146, 1147
(7th Cir. 1993). More recently, the same court held
that
[t]here is only one situation in which the
prejudices of an employee . . . are imputed to
the employee who has formal authority of the
plaintiff’s job. That is where the subordinate,
by concealing relevant information from the
decisionmaking employee or feeding false
information to him, is able to influence the
decision. In such a case, the discriminatory
motive of the other employee, not the autonomous
judgment of the nondiscriminating decision-maker,
is the real cause of the adverse employment
action.
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400
(7th Cir. 1997) (citations omitted). See also Kientzy
v. McDonnell Douglas Corp., 990 F.2d 1051, 1057 (8th
Cir. 1993); Stacks v. Southwestern Bell Yellow Pages,
27 F.3d 1316, 1323 (8th Cir. 1994).
Cariglia, 363 F.3d at 85-86 (emphasis added).

14

In reliance upon the out-of-circuit authority it cited, the
Cariglia court vacated the trial court’s grant of summary
judgment to the employer and remanded the case, instructing the
trial court to determine whether the decisionmaker’s
subordinates, who allegedly bore discriminatory animus,
deliberately withheld information from the decisionmaker that
would have undermined the reason the decisionmaker gave for
discharging the plaintiff.

See id. at 87.

As the court

explained: “If the court so finds, then, as in Wallace, ‘the
subordinate . . . by concealing relevant information from the
decisionmaking employee[s] or feeding false information to
[them], is able to influence the decision’ [which] makes the
subordinate’s animus ‘probative in an employment discrimination
case.’”

Id. (quoting Wallace, 103 F.3d at 1400; Medina-Munoz v.

R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990)).
There is, however, a significant problem with Ameen’s
reliance upon Cariglia.

In Cariglia, the evidence before the

trial court may have supported a finding that an animus-bearing
subordinate either fabricated evidence against the plaintiff or
concealed evidence favorable to the plaintiff from the
decisionmaker.

Here, however, Ameen does not even suggest any

such malfeasance.

Rather, it is undisputed that: (1) Connors

accurately reported Ameen’s comings and goings from the Amphenol
facility to Pratt; (2) Pratt accurately reported to Harrington
15

both the information he asked Hartlen to collect and the results
of the further investigation Harrington asked him to perform.
Moreover, Ameen has produced no evidence that the accurate
information Connors and Pratt passed along was somehow
misleading because they withheld or concealed other information.
Finally, it is undisputed that for at least two years, Ameen
engaged in precisely the conduct for which he was discharged:
punching in and out of the building system and the payroll
system in a way that resulted in his being paid for about
fifteen minutes per day more than he actually worked.
Ameen counters by arguing that the malfeasance requirement
established in Cariglia was effectively abrogated by the United
States Supreme Court’s decision in Staub v. Proctor Hospital,
131 S. Ct. 1186 (2011).

Ameen reads too much into Staub.

Most importantly, the Staub court was not called upon to
decide, and did not decide, whether the cat’s paw theory applies
when the information provided by the subordinate to the
decisionmaker is entirely accurate, as is the case here.
Moreover, in Staub, the plaintiff produced evidence that the
subordinate whose animus he sought to impute to the
decisionmaker had, in fact, provided the decionmaker with false
evidence against him.

See id. at 1189.

That, in turn,

undermines Ameen’s argument that Staub somehow vitiated the
malfeasance requirement established by the First Circuit in
16

Cariglia.

Finally, the court notes that while an employee may

not immunize himself from being discharged for reasons unrelated
to the FMLA simply by taking leave under that statute, see
Henry, 686 F.3d at 55, an employer’s ability to discharge an
employee for reasons unrelated to conduct protected by the FMLA
would be significantly constrained by a rule that would allow
accurate reporting of employee misconduct unrelated to the FMLA
to count as evidence of retaliatory animus.

In sum, there is

nothing in Staub that calls into question the vitality of the
malfeasance rule established in Cariglia.

Thus, because Ameen

has produced no evidence of any malfeasance by Connors or Pratt
when they reported his conduct, the cat’s paw theory is
unavailable to him.
But, even if that theory were available as a mechanism for
imputing animus to Harrington, it is not at all clear that there
is any retaliatory animus to impute.

In Staub, the Court’s

central holding was
that if a supervisor performs an act motivated by
antimilitary animus that is intended by the supervisor
to cause an adverse employment action, and if that act
is a proximate cause of the ultimate employment
action, then the employer is liable under USERRA.
131 S. Ct. at 1194 (emphasis in the original, footnote omitted).
In Staub, the evidence of antimilitary animus included this:

17

Both Janice Mulally, Staub’s immediate supervisor, and
Michael Korenchuk, Mulally’s supervisor, were hostile
to Staub’s military obligations. Mulally scheduled
Staub for additional shifts without notice so that he
would “‘pa[y] back the department for everyone else
having to bend over backwards to cover [his] schedule
for the Reserves.’” 560 F.3d 647, 652 (C.A.7 2009).
She also informed Staub’s co-worker, Leslie Sweborg,
that Staub’s “‘military duty had been a strain on
th[e] department,’” and asked Sweborg to help her
“‘get rid of him.’” Ibid. Korenchuk referred to
Staub’s military obligations as “‘a b[u]nch of smoking
and joking and [a] waste of taxpayers[’] money.’”
Ibid. He was also aware that Mulally was “‘out to
get’” Staub. Ibid.
131 S. Ct. at 1189.

Similarly, in Cariglia, evidence of

retaliatory animus included evidence that the supervisor
ordered an audit . . . “motivated not by sound
business reasons, but by a desire on the part of [the
supervisor] to ‘get the goods’ on [the plaintiff]
because [the supervisor] believed [the plaintiff] was
‘over the hill’, ‘not our kind’ and ‘should not be
here.’”
363 F.3d at 80 (emphasis added).

Here, by contrast, Ameen has

produced no evidence that either Connors or Pratt were out to
get him fired.

To be sure, he has produced evidence that both

men may have been unhappy about the difficulties that were
created by Ameen’s refusal to work overtime after his return
from personal leave, but even with all reasonable inferences
drawn in Ameen’s favor, there is insufficient evidence from
which a reasonable jury could conclude that either Connors or

18

Pratt made their reports up the chain of command with the intent
of getting Ameen fired.2
The bottom line is this.

It is undisputed that Harrington

did not know about either Ameen’s formal FMLA leave or his
practice of declining to work overtime so he could care for his
wife and child.

So, absent a successful invocation of the cat’s

paw theory, Harrington could not have discharged Ameen in
retaliation for his exercising his rights under the FMLA.

But,

because Ameen has produced no facts from which a reasonable jury
could conclude that either Connors or Pratt acted in a way that
would justify invocation of the cat’s paw theory, Ameen’s FMLA
claim fails as a matter of law.

In turn, because there is no

retaliatory animus to cover up in the first instance, it is
unnecessary to even consider the third stage in the McDonnell
Douglas framework and determine whether the explanation
Harrington gave for Ameen’s discharge was pretextual.

That is,

even if Ameen could establish that Harrington’s explanation was
a pretext, which seems highly unlikely, it could not have been a
2

Moreover, if Ameen were able to establish that Amphenol
had a “usual practice of allowing employees to take extra break
time without discipline,” Pl.’s Mem. of Law (doc. no. 34-1) 23,
which is part of his disparate treatment argument, that would
undercut any claim that Connors or Pratt intended to get Ameen
fired by reporting his improper use of break time. If
Amphenol’s “usual practice” was to let improper use of break
time pass without discipline, it is difficult to see how Connors
or Pratt could have believed that their reports on Ameen could
have resulted in his discharge.
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pretext for unlawful retaliation under the FMLA.

In sum,

Amphenol is entitled to judgment as a matter of law on Ameen’s
FMLA claim.
Conclusion
For the reasons detailed above, Amphenol’s motion for
summary judgment, document no. 31, is granted.

The clerk of the

court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge

December 23, 2013
cc:

Jennifer C. Brown, Esq.
Heather M. Burns, Esq.
Lauren S. Irwin, Esq.
Jonathan D. Rosenfeld, Esq.
Mary E. Tenn, Esq.

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