Fountain v. First Data Merchant Services

Filing 37

ORDER denying 31 Motion for Summary Judgment. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jessica Fountain
v.

Civil No. 14-cv-121-LM
Opinion No. 2016 DNH 020

First Data Merchant Services
O R D E R
Jessica Fountain has sued her former employer, First Data
Merchant Services (“First Data”), asserting a claim under the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654.1
Before the court is First Data’s motion for summary judgment.
Fountain objects.
Standard of Review
A movant is entitled to summary judgment where he “shows
that there is no genuine dispute as to any material fact and
[that he] is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to
the nonmovant.

Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,

115 (1st Cir. 2013).

The court previously granted First Data’s motion to
dismiss two claims asserted under the Americans With
Disabilities Act, 42 U.S.C. §§ 12101-12213.
1

Background
The facts are summarized from First Data’s undisputed
statement of material facts (“SMF”) offered in support of its
motion for summary judgment (doc. no. 31-1 at 2-9).

These facts

are not in dispute unless noted.
Fountain was hired by First Data’s predecessor, EFS Card
Services (“EFS”), in 1998 as an account executive.

For each

account executive, First Data issues an annual Regional Account
Executive Sales Compensation Plan (“Compensation Plan”), which
sets forth the terms of compensation and performance goals of
the account executive.

At all times relevant to this matter,

Fountain worked remotely, with a company laptop and phone.
From at least 2004, when First Data acquired EFS, through
2011, Fountain was a “strong performer, and exceeded 100% of her
Compensation Plan performance standards.”

SMF ¶ 7.

In 2010,

Fountain produced some of the strongest sales numbers in the
company.
While she was a strong performer, First Data twice granted
Fountain intermittent leave under the FMLA.

Fountain first took

FMLA leave in September 2009, when she experienced personal
health issues, and she took her second FMLA leave in April 2011,
to care for her son.

Fountain’s second leave ended in October

2011.

2

In late 2011, Regional Sales Director Jared Kirkpatrick
became Fountain’s direct supervisor.

A few months later, in

February 2012, First Data granted Fountain a third intermittent
FMLA leave, again to care for her son.

During her third FMLA

leave, Fountain took time off in February, March, June, and July
2012.

Fountain’s third leave ended in August 2012.

Beginning in January 2012, Fountain’s performance began to
fall off.

Fountain did not meet 80% of her revenue goal in

January, and she continued to struggle generating revenue
thereafter.
In May 2012, in an effort to assist Fountain in improving
her revenue, Kirkpatrick proposed weekly one-on-one calls and
visited Fountain.

Throughout the middle of 2012, however,

Fountain’s revenue numbers continued to languish below 80% of
her revenue goal.

It appears, however, that Kirkpatrick had

failed at this time to adjust Fountain’s revenue goals to
account for her FMLA leave.2
On October 10, 2012, Kirkpatrick issued Fountain a 90-day
Improvement Action Plan (“IAP”).

An IAP is First Data’s final

disciplinary step before discharging an employee.

It provides

Fountain agrees, however, that she did not meet 80% of her
revenue goal for any month in 2012, including after Kirkpatrick
later adjusted her revenue goals to account for her FMLA leave.
2

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an action plan for the employee, including specific goals and
expectations aimed at assisting improvement.
Fountain failed to comply with some of the expectations set
forth in the IAP, and her sales numbers declined after receiving
the IAP, falling below 50% of her revenue goal for October,
November, and December.

On January 9, 2013, the day before

Fountain’s 90-day IAP period was to conclude, Kirkpatrick sent
an email to his supervisors and First Data’s Human Resources
Department regarding Fountain’s performance.

The email, which

summarized a phone call Kirkpatrick had with Fountain earlier
that day and his intentions thereafter, stated:
The bottom line of our conversation is that she isn’t
working and needs to get out and start finding new
business and opportunity for herself . . . . [B]arring
an exceptional turnaround, I still plan on terminating
her this Friday [January 11]. I am very concerned
that she is no longer willing to put in the kind of
work required to be successful and that even a short
term turnaround this late in the game will not last.
SMF ¶ 13.
In response to the January 9, 2013 phone call with
Kirkpatrick, Fountain put herself in “out of office” status.
Kirkpatrick emailed Fountain on January 11, asking her to call
him.

Kirkpatrick intended to discharge Fountain when he spoke

to her.
Rather than calling Kirkpatrick, Fountain emailed First
Data’s Human Resources Manager Gayla Baker.
4

In that email,

Fountain claimed, for the first time, that she was afraid of
Kirkpatrick and that Kirkpatrick had threatened her.
On January 15, 2013, Baker emailed Fountain requesting
additional information to investigate her complaint against
Kirkpatrick.

Baker requested that Fountain provide her with any

additional information by January 17.

In that email, Baker

informed Fountain that the purpose of Kirkpatrick’s attempt to
contact her on January 11 was to notify Fountain that she had
been placed in “termination status,” but that the termination
status was on hold pending the investigation into Fountain’s
claim against Kirkpatrick.
Fountain responded by asking to move the deadline to
January 18 to provide more information.

She also requested FMLA

paperwork because she was having surgery on January 16.

Baker

responded that she would ask the Human Resources Service Center
to send Fountain the FMLA form, but also told Fountain that her
employment was still in termination status, on hold pending
review of her complaint about Kirkpatrick.

After receiving the

paperwork, Fountain applied for FMLA leave.3

As discussed further below, despite initially failing to
adjust Fountain’s revenue goals to account for her FMLA leave,
Kirkpatrick subsequently adjusted Fountain’s quotas in
late-January 2013, after an inquiry from First Data’s Human
Resources department.
3

5

First Data investigated Fountain’s complaint about
Kirkpatrick and found no wrongdoing.4

After the investigation

closed but before First Data could process the termination, an
attorney representing Fountain contacted First Data.

First Data

kept Fountain’s termination status on hold during discussions
between counsel for First Data and Fountain.

First Data

eventually discharged Fountain, effective February 11, 2013.
First Data asserts that it had not taken any action on
Fountain’s 2013 FMLA leave request as of the date she was
terminated.

An internal First Data record produced in

discovery, however, shows that First Data granted Fountain’s
2013 FMLA leave request.
Discussion
In its order granting, in part, First Data’s motion to
dismiss, the court characterized Fountain’s remaining claim, a
retaliation claim under the FMLA, as follows:
Construed in the light most favorable to Fountain, and
in light of the allegations in her failed attempt to
state a [29 U.S.C.] § 2615(a)(1) claim, Fountain’s
§ 2615(a)(2) claim is that First Data discharged her

Fountain asserts that Baker did not conduct a legitimate
investigation into her complaint. In support, she argues that
Baker did not make any record of their conversation or of the
investigation itself, and that Baker based her conclusion almost
entirely on Kirkpatrick’s word.
4

6

in retaliation for both taking FMLA leave, and for
requesting another such leave in January of 2013.
Order (doc. no. 22) at 20.
The FMLA forbids an employer from retaliating against an
employee for exercising her FMLA rights.

Henry v. United Bank,

686 F.3d 50, 55 (1st Cir. 2012) (citing 29 U.S.C. § 2615(a)).
“Thus, for example, an employer may not use an employee’s FMLA
leave as a negative factor in deciding to hire, fire, promote,
or provide benefits to an employee.”

Carrero-Ojeda v. Autoridad

de Energía Eléctrica, 755 F.3d 711, 719 (1st Cir. 2014).
Where direct evidence of retaliation does not exist, courts
apply the three-step framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), which is used in Title VII
and other civil rights cases.

Colburn v. Parker

Hannifin/Nichols Portland Div., 429 F.3d 325, 335-36 (1st Cir.
2005).

The parties agree that Fountain lacks direct evidence of

retaliation.
Under the McDonnell Douglas framework, the employee carries
the initial burden to establish a prima facie case of
retaliation.

Id. at 336.

“If the plaintiff establishes a prima

facie case, the burden shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the termination.”
Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 69 (1st
Cir. 2015) (internal quotation marks and citation omitted).
7

“If

the employer can proffer evidence sufficient to raise a genuine
issue of fact as to whether it discriminated against the
employee . . . 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 [her] was in
fact a pretext for retaliating against [her] for having taken
protected FMLA leave.”

Id. (internal quotation marks and

citations omitted).
First Data argues that Fountain cannot make out a prima
facie case of retaliation, but that even if she could, First
Data can articulate legitimate, nondiscriminatory reasons for
the termination.

First Data further argues that Fountain cannot

show that its reasons for terminating her were pretext for
retaliation.
Fountain contends that she establishes a prima facie case
of retaliation.

While she does not dispute that First Data can

articulate legitimate, nondiscriminatory reasons for her
termination – that Fountain failed to meet the performance
criteria set forth in the 2012 Compensation Plan, and failed to
meet the IAP requirements - she argues that there is a genuine
issue of material fact as to whether First Data’s reasons for
terminating her were pretext for retaliation.

8

A.

Prima Facie Case
To make a prima facie showing of retaliation, a plaintiff

must show that “(1) she availed herself of a protected FMLA
right; (2) she was adversely affected by an employment decision;
and (3) there was a causal connection between [her] protected
conduct and the adverse employment action.”

Carrero-Ojeda, 755

F.3d at 719 (internal quotation marks and citation omitted).
“The prima facie burden is ‘quite easy to meet,’ and all
inferences must be taken in the light most favorable to . . .
the party opposing summary judgment.”

Pierce v. Alice Peck Day

Mem’l Hosp., No. Civ. 00-318-M, 2002 WL 467125, at *6 (D.N.H.
Mar. 11, 2002) (quoting Villanueva v. Wellesley Coll., 930 F.2d
124, 127 (1st Cir. 1991)).
In moving for summary judgment, First Data does not contest
that (1) Fountain, in taking FMLA leave in 2009, 2011, and 2012,
and requesting to take FMLA leave in 2013, availed herself of
her protected rights, and (2) Fountain was adversely affected by
First Data’s decision to terminate her.

First Data argues only

that Fountain lacks any evidence of a causal connection between
her protected conduct and her termination.
To establish a causal connection, a “plaintiff must show
that the adverse employment actions were taken against her
because she attempted to exercise a right protected by the
FMLA.”

Crevier v. Town of Spencer, 600 F. Supp. 2d 242, 261 (D.
9

Mass. 2008) (emphasis omitted).

“A causal connection can be

established . . . through . . . factors including the sequence
of events leading to the adverse action, departures from normal
procedure, and any contemporaneous statements made by
decisionmakers.”

Richard v. U.S. Postal Serv., 219 F. Supp. 2d

172, 182 (D.N.H. 2002) (citing Hodgens v. Gen. Dynamics Corp.,
144 F.3d 151, 168 (1st Cir. 1998)).

In addition, “‘[v]ery

close’ temporal proximity between protected activity and an
adverse employment action can satisfy a plaintiff’s burden of
showing causal connection.”

Sanchez-Rodriguez v. A T & T

Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir. 2012) (quoting
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir.
2004)).
Viewing the evidence in the light most favorable to
Fountain, the timing between Fountain’s FMLA leave request in
January 2013 and the date of her termination, February 11, 2013,
is sufficient to demonstrate the necessary causal link for
purposes of a prima facie case.

Given the “low threshold

required to meet the [causation] prong of [a] prima facie case,”
Hodgens, 144 F.3d at 169, the fact that First Data terminated
Fountain less than a month after she requested FMLA leave is
enough to satisfy the causal connection prong of Fountain’s
prima facie case.

See Wagner v. Baystate Health, Inc., No. 12-

cv-30146-MAP, 2013 WL 5873295, at *4 (D. Mass. Oct. 29, 2013)
10

(“Both a one-month and two-month interval between a protected
activity and adverse action have been classified as ‘close
enough’ to imply retaliation for purposes of the prima facie
case.” (citing Mariani-Colon v. Dep’t Homeland Sec. ex. rel.
Chertoff, 511 F.3d 216, 224 (1st Cir. 2007))).
First Data argues that the court cannot take into account
Fountain’s January 2013 FMLA leave request because the decision
to terminate Fountain was made on January 11, 2013, prior to
Fountain’s request.

Evidence in the record shows, however, that

Baker put Fountain’s termination status on hold during her
investigation into Fountain’s complaint about Kirkpatrick.

In

addition, in late-January 2013, Kirkpatrick, Baker, and other
First Data employees sent emails discussing Fountain’s quota
achievement numbers, particularly in light of her FMLA leave,5 as
well as emails regarding how many hours Fountain was authorized
to miss under her 2012 FMLA leave.

See Ex. D to Obj. (doc no.

32-6) at 1, 7, 8; see also Ex. 10 to Mot. (doc. no. 31-12).
Thus, evidence in the record shows that while Fountain’s
termination status was on hold, Fountain’s supervisor and First
In one email, Kirkpatrick provides Baker with Fountain’s
“sales volume and YTD revenue percentage for the Oct – Dec time
frame.” Ex. D to Obj. (doc no. 32-6) at 8. Kirkpatrick
concedes in a later email in the chain that the numbers he
provided are not adjusted to account for Fountain’s FMLA leave.
Id. at 7. He subsequently emails Baker with Fountain’s adjusted
numbers. See Ex. 7 to Mot. (doc. no. 31-9).
5

11

Data’s Human Resources department were discussing Fountain’s
performance and absences, supporting the inference that no final
termination decision had been made.6

See Louis v. Bear Hill

Nursing Ctr., No. 11-11540-GAO, 2014 WL 4966037, at *5-6 (D.
Mass. Sept. 30, 2014) (construing dispute over termination date
in an FMLA retaliation case in plaintiff’s favor); Sampson v.
Arbour-Fuller Hosp., No. 11-10487-RWZ, 2012 WL 5386099, at *9
(D. Mass. Nov. 2, 2012) (same); Zungoli v. United Parcel Serv.,
Inc., No. 07-2194, 2009 WL 1085440, at *6 (D.N.J. Apr. 22, 2009)
(same).
Therefore, in light of the close timing between Fountain’s
January 2013 FMLA leave request and her termination, under the
plaintiff-friendly summary judgment standard, Fountain has
sufficiently shown the causal connection necessary to move
forward.7
B.

Pretext
First Data has articulated legitimate, nondiscriminatory

reasons for Fountain’s termination – her substandard performance

First Data states in its reply that these emails were sent
to gather information to respond to questions received from
Fountain’s attorney. The record, however, is unclear as to the
purpose of those emails.
6

In addition, the record evidence that First Data granted
Fountain’s 2013 FMLA leave request supports an inference that it
had not reached a final decision as to Fountain’s termination as
of January 11, 2013.
7

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in 2012 and her failure to meet the IAP requirements.

The

burden thus shifts to Fountain to show that First Data’s stated
reasons for terminating her were pretextual and were instead
retaliation for taking or requesting FMLA leave in January 2013.
A “nonmoving plaintiff may demonstrate pretext either
indirectly by showing that the employer’s stated reasons for its
adverse action were not credible, or directly by showing that
that action was more likely motivated by a discriminatory
reason.”

Hodgens, 144 F.3d at 168.

When the issue is whether

the employer’s reasons are pretextual, “courts must be
‘particularly cautious’ about granting the employer’s motion for
summary judgment.”

Id. at 167 (quoting Stepanischen v. Merchs.

Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir. 1983)).
Fountain asserts that the evidence demonstrates pretext
because Kirkpatrick either did not initially adjust Fountain’s
sales quotas in 2012 to account for her FMLA leave or, if he
did, he never informed Fountain of the correct quotas.8

Fountain

also points to the fact that she requested, and may have been
Fountain asserts that Kirkpatrick first adjusted the
quotas in the above-referenced late-January 2013 email, only
after Baker asked him whether the quotas he provided had taken
Fountain’s FMLA leave into account. There is evidence in the
record that Kirkpatrick may have adjusted Fountain’s quota
achievement to account for her FMLA leave in October 2012, when
he issued the IAP. See Ex. 9 to Mot. (doc. no. 31-11). The
record shows, however, that regardless of whether Kirkpatrick
adjusted the numbers when he created the IAP, he was still using
the unadjusted quota achievements in January 2013.
8

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granted, FMLA leave shortly before her termination.

Further,

Fountain asserts that First Data’s investigation into her
complaint against Kirkpatrick “was a sham.”

Pl.’s Obj. (doc.

no. 32-1) at 8.
Here, although Fountain’s evidence is not overwhelming,
viewed generously, she can demonstrate “at least to the level of
trialworthiness,” Hodgens, 144 F.3d at 166, that First Data’s
stated reasons for termination were a mere pretext.

For

example, viewing the evidence in the light most favorable to
Fountain, a reasonable jury could infer that the reason
Kirkpatrick improperly failed to adjust Fountain’s revenue goal
to account for her FMLA leave was because he was dismayed by
Fountain taking another leave, particularly after a month in
which she performed poorly.

See, e.g., Lukacinsky v. Panasonic

Serv. Co., No. 03-40141-FDS, 2004 WL 2915347, at *16 (D. Mass.
Nov. 29, 2004) (holding that a genuine issue of material fact
existed as to pretext when the employee’s supervisor improperly
took into account the employee’s FMLA absences from work when
evaluating his performance).
In addition, Fountain testified in her deposition that
Kirkpatrick failed to adequately support her throughout 2012,
for example, by not assisting her in generating new business or
otherwise increasing her sales numbers.

Taken in the light most

favorable to Fountain, her testimony could support a theory that
14

Kirkpatrick failed to do so because of dismay at Fountain’s FMLA
leave.9

The record, viewed favorably to Fountain, also shows

that after receiving Fountain’s fourth FMLA request in January
2013, Baker may not have conducted a thorough investigation into
Fountain’s complaint about Kirkpatrick.

Baker’s failure to

conduct a thorough investigation could support the inference
that First Data wanted to terminate Fountain because of her FMLA
leave.
Although Fountain has certain evidentiary hurdles to
overcome at trial, at this stage of the litigation, Fountain
receives the benefit of every favorable inference.

Construed

favorably to her, the record shows the existence of genuine
issues of material fact as to whether First Data terminated her
in retaliation for her having exercised her rights under the
FMLA.

See McAleer v. Starbucks Corp., No. 12-11631-RGS, 2014 WL

346004, at *3 (D. Mass. Jan. 31, 2014) (“It is open to a jury to
find that Lane was irritated by McAleer’s leave requests,
resented having to fill in for him during his absences, and
imposed a PIP with conditions that were designed to ensure
First Data notes that Fountain’s complaint alleges that
Kirkpatrick failed to give her adequate support even before she
requested FMLA leave in 2012. In light of the summary judgment
standard, that allegation does not negate the potential
inference that Kirkpatrick’s continued failure to support
Fountain was due to her having exercised her rights under the
FMLA.
9

15

McAleer’s failure, in retaliation for his exercise of his FMLA
rights.”); Surprise v. Innovation Grp., Inc./First Notice Sys.,
Inc., 925 F. Supp. 2d 134, 144 (D. Mass. 2013) (“It is certainly
true that the evidence of discrimination is slight; indeed, the
claim hangs by the slenderest of threads.

It is also true that

there is an inherent danger that a bad employee will begin to
make complaints of discrimination in order to intimidate the
employer and prevent his or her termination.

Nonetheless, in

the circumstances here, a reasonable juror could conclude that
the proffered reason for plaintiff’s termination was
pretextual.”); Lukacinsky, 2004 WL 2915347, at *16.
Accordingly, First Data is not entitled to summary
judgment.
Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment (doc. no. 31) is denied.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
January 27, 2016
cc:

Darlene M. Daniele, Esq.
K. Joshua Scott, Esq.
Kenneth M. Wentz, III, Esq.
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