Douglas v. City of Cleveland et al
Filing
25
Opinion and Order signed by Judge James S. Gwin on 3/22/16. The Court, for the reasons set forth in this order, grants the defendants' motion for summary judgment as to Counts I and II of the complaint. (Related Doc. 16 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
ELAINE DOUGLAS,
:
:
Plaintiff,
:
:
vs.
:
:
CITY OF CLEVELAND, et al.,
:
:
Defendants
:
:
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CASE NO. 14-CV-00887
OPINION & ORDER
[Resolving Doc. No. 16]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Elaine Douglas worked for the City of Cleveland until May 31, 2013, when she
was laid off1 from her position in the City Health Department’s MomsFirst program. MomsFirst
employed Douglas as a full-time assistant administrator. In July 2013, the City hired another
person as a part-time assistant administrator in the same program. Douglas sues Defendant City
of Cleveland and Defendant Lisa Matthews, who supervised Douglas at MomsFirst.
Douglas claims that MomsFirst fired Douglas in retaliation for her use of family medical
leave, in violation of 29 U.S.C. § 2615(a).2 Douglas argues that MomsFirst failed to re-hire her
in retaliation for that same leave, in violation of 29 U.S.C. § 2615(a).3 Defendants move for
1
Defendants dispute the legal implication of the term laid off versus terminated. Doc. 16-1 at 20.
As Plaintiff correctly points out, the terminology has little weight in the context of a Family Medical
Leave Act retaliation claim. Doc. 20 at 21. As a result, this Court uses the terms interchangeably.
2
Doc. 1-1.
3
Id. In the initial complaint, Douglas also raised a whistleblower claim under state law. Douglas
alleged that she had conversations with her supervisors regarding the lack of accountability in handling
gift cards administered by her program. Douglas contended that firing her after these conversations
violated Ohio Revised Code § 4113.52(B)(1). The parties have since stipulated to the dismissal of this
count. See Doc. 19; Non-Document Entry, dated August 10, 2015. As a result, this opinion does not
address the whistleblower count, although it was briefed in part in the opening and opposition brief.
Case No. 14-CV-00887
Gwin, J.
summary judgment as to both claims.4 Plaintiff opposes.5 For the following reasons, the Court
GRANTS Defendants’ motion.
I.
Background
a. Beginning of Employment
Douglas worked from April 2012 through May 2013 as an assistant administrator at the
MomsFirst Program.6 MomsFirst is a federally-funded grant program aimed at reducing
disparities in Cleveland infant mortality.7
At the relevant times, six employees and a supervisor, Defendant Lisa Matthews worked
on the MomsFirst program. Grant funding paid the salaries for MomsFirst employees.8 Of the
six employees, Douglas was the last-hired. She was the only non-essential staff, meaning that
that the “core functions of the program could be carried out” without her role.9
After being hired, Douglas initially struggled with work performance. Her 30-day, 60day and 90-day reviews noted the need for improvement.10 Matthews gave Douglas an
additional thirty days to improve performance.11 At the end of the probationary period,
Matthews gave Douglas a “satisfactory” rating in each category.12
4
Doc. 16-1.
Doc. 20. Defendants submitted a reply brief. Doc. 22.
6
Doc. 16-1 at 3-4.
7
Id.
8
Doc. 16-1 at 7.
9
Id.; Doc. 16-3 at 219:21 to 220:2.
10
Doc. 16-1 at 9; Doc. 20-23.
11
Doc. 16-3 at 89:5 to 91:2.
12
Id. at 111:25 to 113:19.
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Gwin, J.
b. Course of Employment from 2012 to 2013
From the end of 2012 to May, 2013, when Douglass was laid off, three overlapping sets
of events occurred related to Douglas’s employment in the MomsFirst group.
First, on January 22, 2013, Douglass applied for intermittent FMLA leave.13 Douglas
requested the leave to provide assistance to her mother, who suffered from dementia.14 On
January 29, 2013, the City’s Human Resources department approved the FMLA leave.15
Matthews testified that she became aware of the FMLA leave as early as February 1, 2013.16
Douglas ultimately took four days of FMLA leave in 2013: February 1, February 11, March 1
and March 20.17
Douglas testified that when she used the FMLA leave “Lisa [Matthews’] attitude changed
towards me.”18 Douglas elaborated that, while Matthews never said anything directly, she
“would smack her lips and roll her eyes” when Douglas discussed taking FMLA leave.19
Douglas also testified that Matthews would “try to get me to do work before I left [for FMLA
leave]. If I had to leave, she would say, ‘Well, can you do this before you leave.’ And I was like
‘Well, I really need to leave now.’”20 Douglas shows no other evidence that Matthews required
Douglas to stay or take extra steps before exercising her FMLA leave.
Second, on February 4, 2013, Douglas received a poor annual performance review in a
meeting with Matthews.21 In that February 4, 2013, meeting, Matthews put Douglas on a
13
Doc. 20 at 3
Id.
15
Id.
16
Id.
17
Doc. 16-1 at 12.
18
Doc. 16-2 at 46:1-3.
19
Id. at 52:24 to 53:3.
20
Id. at 51:8-13.
21
Doc. 20 at 5-6.
14
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Gwin, J.
performance improvement plan (“PIP”).22 Matthews testified that although the meeting was held
on February 4, she prepared the annual review and PIP in January, before the performance
meeting and before Plaintiff’s FMLA application.23
The PIP outlined specific tasks that Douglas needed to complete in her position as
administrative assistant.24 Among the tasks was creating a system to keep track of gift cards to
the local Dave’s grocery store chain. The MomsFirst program distributed these gift cards to new
Cleveland mothers, but there was not a comprehensive tracking or inventory system for the
cards.25 Douglas did not complete this task on time.26 Although she was given an extension to
complete the task, and completed the task within the extended window, Douglas served a oneday suspension on May 7, 2013 for violating the PIP.27
22
Id.
Doc. 16-3 at 119:2-9.
24
Doc. 20-24. Douglas’ Performance Improvement Plan cited five tasks: (1) maintain and update
the MomsFirst referral logs; (2) Stock and inventory supplies and materials for the program (3) get a
system in place for tracking expiring Dave’s gift cards; (4) send bereavement cards quarterly when the list
is received from the Child Fatality committee; (5) logging executive council reports.
25
Plaintiff paints the Dave’s gift card element of the PIP as evidence of Matthews’ retaliatory
motive. Doc. 20 at 5-7. This misconstrues the facts. Plaintiff points out that the Dave’s gift card task
seems inconsistent with Douglas’ 90-day evaluation, which stated that Douglas had already met her goal
of, “devlop[ing] a system for tracking expiring Dave’s cards.” Doc. 20-23 at 5. However, Matthews
explained the discrepancy in her deposition: “At the time this was done, these were only done for the new
cards that had full balances on them. We discovered after the fact that there were loose cards hanging
around with partial balances on them. Like I said, someone would buy something, and they wouldn’t use
the entire card. That was what this was referring to, the loose cards.” Doc. 16-3 at 168:10-18. Requiring
Douglas to finalize the system for tracking Dave’s cards was a proper use of the PIP procedure.
Moreover, Douglas herself testified that she did not believe she was placed on the PIP because of
her FMLA Leave. Doc. 16-2 at 84:5 to 84:13 (“Q: Now is it your contention you were placed on a PIP,
because you took Family Medical Leave Act leave? A: No, I don’t believe that. Q: Okay. I think you
testified you were put on a PIP, because Lisa believed you were not performing in your job? A: There
were some things that she, I guess, felt that I didn’t complete; yes.”).
26
Doc. 16-2 at 90:14-23.
27
Doc. 16-1 at 7. Plaintiff’s version of the facts makes several other unsupported conclusions
regarding the PIP and Douglas’ disciplinary action. First, Plaintiff attempts to drum up evidence of
Matthews’ retaliatory motive by arguing that two other employees – Lydia Hill and Mike Cummings –
were responsible for the Dave’s gift cards and yet were not placed on PIPs. This conjecture ignores
Matthews’ uncontradicted testimony that Douglas was the one ultimately accountable for the gift card
system. Doc. 16-3 at 166:23 to 167:9.
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Gwin, J.
Third, a federal funds sequestration resulted in a 5.28% reduction in the funds to the
MomsFirst program.28
c. Termination and Failure to Rehire
The MomsFirst program fired Douglas, citing the loss of federal funds.29 The head of the
Health Department, Karen Butler, had sole authority to terminate, layoff, and rehire employees
in the Health Department. Butler approved and authorized Douglas’ layoff, and signed Douglas’
layoff notice.30 It is undisputed that Butler did not directly know about Plaintiff’s use of FMLA
leave.31 Matthews testified that the recommendation to terminate Douglas was related
exclusively to budget, and not to Douglas’ previous performance issues.32
On May 17, 2013, The Health Department’s Human Resources representative, Cherita
Anglen met with Douglas to inform her of the layoff and provide her written notice.33 At the
Second, Plaintiff argues that the bases for the disciplinary action were “specious” and part of
Matthews’ effort to “discipline Douglas without cause or justification.” Doc. 20 at 8-9. However,
Plaintiff ignores that Human Resources, not Matthews, conducted the disciplinary proceedings.
Matthews testified that she did not make the disciplinary decision. Doc. 16-3 at 177:12 to 178:12.
Indeed, the Notice of Pre-Discipline Conference, of which Plaintiff complains at length, was sent by an
HR Manager, not Matthews. Doc. 20-26 at 1. Plaintiff has failed to prove any connection between the
alleged inaccuracies in the disciplinary process to anybody with knowledge of Plaintiff’s FMLA leave, or
any employee with influence over Plaintiff’s later termination.
28
Doc. 16-3 at 21:2 to 21:7; Doc. 20 at 10. The parties agree that the date of this fund reduction
is not precisely known. The parties refer to “late Spring of 2013” and “Spring 2013.”
29
Doc. 16-1 at 8; Doc. 20-20 (termination letter from the City of Cleveland, which begins, “We
regret to inform you that due to a lack of funds, resulting from Federal imposed budget cuts; [sic] on June
1, 2013 the Health Start Grant program will be reduced for fiscal year 2013-2014 . . . As a result, you are
being laid off from your position of Assistant Administrator, effective the end of business day on Friday
May 31, 2013.”)
30
Doc. 16-4 at 75:4 to 75:20.
31
Doc. 16-1 at 18; Doc. 20 at 17.
32
Doc. 16-2 at 215:10 to 216:7.
33
Id.
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Gwin, J.
time, Matthews and Anglen were aware that funding would become available for a part-time
assistant administrator position, as opposed to Douglas’s full time position.34
Anglen testified that she informed Douglas that the MomsFirst program would have a
part-time administrative assistant position available.35 Anglen testified that Douglas stated she
did not want the job and that she did not want to work for MomsFirst again.36 Douglas disputes
that she said this.37
Matthews ultimately hired a former MomsFirst employee named Maria Roman to fill the
part-time assistant position.38
The City of Cleveland Civil Service Rules require the City to prioritize a former
employee who was laid off for lack of funds when a position in the same “classification”
becomes available.39 Defendants present testimony that the new part-time position was not the
same as Douglas’s full-time position.40 As a result, Defendants argue that they were not required
to re-hire Douglas for the new position.
Plaintiff argues that City policy required Cleveland to notify Douglas of the position and
allow her to interview for it. It is undisputed that Douglas was placed on the eligibility list for
the classification of assistant administrator.41 Plaintiff contends that by virtue of being on the
list, Douglas had to have been informed of the position.42
34
Doc. 16-5 at 41:9 to 42:14.
Id. at 43:12 to 46:24.
36
Id.
37
Doc. 16-2 at 117:24 to 118:5.
38
Doc. 20 at 14-15.
39
Id. at 13 (quoting from the Cleveland Civil Services Rules).
40
Doc. 16-1 at 24-25; Doc. 16-5 at 115:1-19 (the conclusion from discussion with Civil Service
was that “no, that’s a different position, so you don’t have to hire her back.”); Doc. 16-6 at 104:1-6; see
also Doc. 16-6 at 29:6 to 30:20 (providing background on the classification system and stating that a part
time and full-time assistant administrator position would not necessarily be the same classification).
41
Doc. 20 at 11; Doc. 16-1 at 24.
42
Doc. 20 at 14-15; 26-28. Plaintiff also raises impassioned arguments that Matthews improperly
schemed to hire Roman by, among other things, informing Roman of the position before the notice was
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Case No. 14-CV-00887
Gwin, J.
Plaintiff does not identify any other evidence that connects Plaintiff’s FMLA leave with
the failure to re-hire her.
II.
Legal Standard
a. Summary Judgment
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’”43 The moving party must first demonstrate that there is an absence of a genuine dispute as
to a material fact entitling it to judgment.44 Once the moving party has done so, the non-moving
party must set forth specific facts in the record—not its allegations or denials in pleadings—
showing a triable issue.45 The existence of some doubt as to the material facts is insufficient to
defeat a motion for summary judgment.46 Indeed, in order to withstand a motion for summary
judgment, the party opposing the motion must present “affirmative evidence” to support her
position; a mere “scintilla of evidence” is insufficient.47 The Court views the facts and all
reasonable inferences from those facts in favor of the non-moving party.48
officially published. Id. at 14-15; 27-28. Even if Matthews’ actions were improper, which it is not clear
they are, Plaintiff has failed to raise any connection between them and alleged retaliation against Douglas
for FMLA leave.
43
Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. Pro.
56(a)).
44
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
45
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
46
Id. at 586.
47
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
48
Killion, 761 F.3d at 580 (internal citation omitted).
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Gwin, J.
The moving party may also meet its burden under Rule 56 by “demonstrating the absence
of evidence to support one of the essential elements of the nonmoving party’s claim.”49
b. FMLA Retaliation
Retaliation claims under the FMLA “impose liability on employers that act against
employees specifically because those employees invoked their FMLA rights.”50
To establish a prima facie retaliation case, a plaintiff must show (1) that she engaged in
some activity that is protected by the FMLA; (2) that the employer knew the employee was
exercising his rights under the FMLA; (3) after learning of the employee’s exercise of his FMLA
rights, the employer took an adverse employment action against him; and (4) there was a causal
connection between the employee’s FMLA activity and the adverse employment action.
An adverse employment action can include either a firing or a failure to rehire.51
However, in a failure-to-rehire case, the plaintiff must show that the employer is under an
obligation to consider the plaintiff for the position.”52
Some courts have recognized the “cat’s paw” theory of retaliation to allow a plaintiff to
meet the prima facie case.53 In a “cat’s paw” case, an unknowing supervisor is encouraged to
take an adverse employment action by another employee who knows about the protected activity
and has discriminatory animus about the use of the protected activity. The cat’s paw theory
allows a plaintiff to meet the second and third prong of the prima facie analysis even when the
49
Marie v. American Red Cross, 771 F.3d. 344, 351 (6th Cir. 2014) (citing Celotex, 477 U.S. at
322-25).
50
Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir. 2006).
Callaway v. Academy of Flint Charter School, 904 F.Supp.2d 657, 659 (E.D. Mich. 2012); cf.
Kocak v. Community Health Partners of Ohio, 400 F.3d 466 (6th Cir. 2005) (recognizing failure to re-hire
in the pregnancy discrimination context).
52
Wagner v. G.A. Gray Co,, 872 F.2d 142, 146 (6th Cir. 1989).
53
The term “cat’s paw” derives from a fable in which a monkey tricks a cat into scooping
chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. EEOC
v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006).
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firing supervisor had no direct knowledge of the protected activity. However, the Sixth Circuit
has declined to state definitively whether the cat’s paw theory is available to plaintiffs in FMLA
retaliation suits.54
Even if a plaintiff can use the cat’s paw theory, a plaintiff must still prove the fourth
prong of a prima facie case: a causal connection between the FMLA activity and the adverse
employment action. A plaintiff can prove the causal connection with indirect evidence.55 In
some circumstances, temporal proximity between the FMLA leave and the adverse action can be
sufficient to establish a causal connection.56 However, temporal proximity does not necessitate a
finding of causal connection in all cases. Rather, other employment circumstances may negate
the existence of a potential “causal connection” raised by close temporal proximity.57
If a plaintiff can make out a prima facie case, the burden then shifts to the defendant to
offer a legitimate, non-discriminatory reason for the adverse employment action.58 The plaintiff
has the burden of showing that the reason proffered is mere pretext.59
Vander Boegh v. EnergySolutions, Inc., 536 F. App’x 522, 531-32 (6th Cir. 2013) (“The district
court seemed to operate under the assumption that [the cat’s paw] theory is available in a retaliation case
such as this. . . . But the availability of cat’s paw theory to impute knowledge of protected activity to the
decisionmaker is less than clear under this court’s precedent, and for this reason, it may become necessary
for the district court to analyze the issue on remand.”).
55
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (“The burden of proof at the prima facie
stage is minimal; all the plaintiff must do is put forth some credible evidence that enables the court to
deduce that there is a causal connection between the retaliatory action and the protected activity.”).
56
See, e.g., Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283-84 (6th Cir. 2012).
57
Cf. Krumheuer v. GAB Robins North America Inc., 484 F. App’x 1, at 5-6 (6th Cir. 2012)
(Plaintiff notified his employee of intent to take FMLA leave on January 24, 2007. He was terminated
approximately 14 days later. The court recognized the “close temporal proximity.” Nevertheless, the
court found that the Plaintiff still had not established a causal connection as the termination had been part
of nation-wide layoffs that happened to occur near the time of the Plaintiff’s FMLA leave request).
58
Weigel v. Baptist Hosp., 302 F.3d 367, 377-78 (6th Cir. 2002)
59
Id.
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III.
Discussion
a. Count I
In the absence of the cat’s paw theory of liability, Plaintiff’s claims for FMLA retaliation
must fail. It is undisputed that Butler—the only person with final hiring and firing authority—
did not know of Douglas’s FMLA leave. As a result, Plaintiff’s claim would fail at the second
prong of the prima facie analysis.
Even if Plaintiff could rely on the cat’s paw theory, Plaintiff would still have to
demonstrate a causal connection under the fourth prong: namely, that Matthews harbored
discriminatory animus and that this animus caused Matthew’s actions that lead to Plaintiff being
fired and then not rehired.
Viewing these facts in the light most favorable to Plaintiff, the Court recognizes a
disputed question of fact as to whether Matthews did in fact “roll her eyes” and request (but not
require) that Plaintiff finish particular tasks before taking days of FMLA leave.60
However, this dispute is immaterial, and—at best—represents a mere scintilla of
evidence as to discriminatory animus. Matthews’ alleged actions, even if true, are not sufficient
alone for a reasonable jury to conclude that Matthews harbored discriminatory animus, and that
such animus motivated her to recommend Douglas’ termination.61
60
Compare Doc. 16-3 at 93:10 to 94:7 with Doc. 16-2 at 49:11 to 53:6. Plaintiff has not put
forward any evidence that disputes Defendants’ evidence that the performance evaluation and PIP were
prepared before Douglas applied for FMLA leave. See Doc. 22 at 4-6.
61
Moreover, Plaintiff’s reliance on Green v. Wal-Mart Stores, East, L.P., No. 3:11–cv–440., 2013
WL 3223629 (S.D. Ohio June 25, 2013), is misplaced. The case stands for the proposition that a causal
connection can be shown when employers treat an employee differently before and after the employee
engages in protected activity. But this disparate treatment analysis necessarily requires similar
circumstances on either side of the protected activity. Here, the MomsFirst budget cuts had not
previously been encountered during Douglas’ tenure.
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Plaintiff’s efforts to demonstrate causal connection through the PIP fail. Plaintiff does
not dispute that the Matthews wrote the PIP before Plaintiff’s application for FMLA leave,
negating the inference that the PIP was part of a scheme to get Plaintiff fired for the FMLA
leave. Moreover, Human Resources, not Matthews (and not Butler) disciplined Plaintiff for
failing to follow the PIP. As a result, Plaintiff cannot show how the discipline, even if flawed,
was in any way connected to the alleged FMLA retaliation. Lastly, Douglas’s work performance
was not cited as a reason for Douglas’s termination. The PIP and disciplinary action are not
indirect evidence of retaliation.
By contrast, the parties do not dispute that MomsFirst faced budget cuts. The parties do
not dispute that the budget cuts were the reason given at the time for Douglas’s termination. The
parties do not dispute that Plaintiff was the last-hired and only non-essential employee in the
group.
Three months separate Plaintiff’s four days of FMLA leave and her ultimate termination.
However, this supposed temporal proximity is not sufficient in a case such as this where other
undisputed employment circumstances explain the termination. Taking FMLA leave cannot
shield Douglas from being laid off as a result of established and documented budget cuts.
Plaintiff has not demonstrated any other causal connection between her FMLA activity and the
adverse employment action.62
62
Alternatively, even if Plaintiff could make out a prima facie case, her claim would fail pretext
analysis. Courts analyzing FMLA retaliation claims apply McDonnell-Douglas burden shifting. After
making out a prima facie case, the burden shifts back to the employer to offer legitimate, nondiscriminatory reason. After making this showing, the burden shifts back to the plaintiff to establish that
the reason given is mere pretext.
Plaintiff puts forward three arguments for why the budget cuts are mere pretext. Doc. 20 at 2425. First, Plaintiff contends, Douglas was the only member of the MomsFirst staff who was terminated.
This is undisputed, but is immaterial. On a staff of seven, it is not unusual that budget cuts would result
in one staff member being fired.
Second, Plaintiff contends that Defendants “were already aware that they were to receive
additional grant funding before Douglas was terminated. Indeed, Defendants were already engaged in the
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Gwin, J.
The Court GRANTS Defendants’ motion for summary judgment as to Count I.
b. Count II
Moreover, Plaintiff has also failed to demonstrate that the failure to re-hire her was in
violation of the Family Medical Leave Act.
Plaintiff must show that the employer is under an obligation to consider the plaintiff for
the position. She has not done so. Defendants offered consistent testimony that the City reached
the proper conclusion that City policies did not require the City to consider Douglas for the parttime position.
Plaintiff attempts to create a dispute of fact by selectively quoting the testimony of
Director of Civil Service Lucille Ambroz. Christine Anglen, the human resources officer who
fired Douglas, testified that she spoke with Ambroz in reaching the conclusion that Douglas did
not have to be considered in the re-hiring process.63 Ambroz, who has numerous such
process of replacing Douglas as she was being laid off.” Id. at 24. However, this is not the complete
story. The MomsFirst program obtained separate funding to hire a part-time, no-benefits employee. The
creation of the part-time position does not throw into question that the federal sequestration caused the
budget cuts that eliminated Douglas’ position.
Third, Plaintiff argues that the MomsFirst program suffered even more significant cuts in funding
since Douglas’s termination, yet no one had to be laid off. This is also insufficient to demonstrate pretext.
The other employees were deemed “essential” to the program. It is not this Court’s job to determine that
later budget cuts were improperly applied to program funding rather than personnel. Even if evidence to
that effect was before the Court, it would not bring into question Douglas’s termination in the first round
of cuts.
Finally, Plaintiff states that there remain genuine issues of material fact as to whether the budget
cuts actually motivated the termination. Plaintiff offers the conclusory statement that a reasonable jury
could find that the budget cuts were a “convenient excuse.” Plaintiff took four days of FMLA leave in
February and March of 2013. Plaintiff has not put forward evidence not already addressed in this opinion
that connects this activity to her layoff in the face of budget cuts two months later. Plaintiff must raise
genuine issues of material fact for her claim to survive summary judgment. She has not done so.
63
Doc. 16-5 at 115:1-19.
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Gwin, J.
discussions on a regular basis, could not recall the specific conversation.64 In Plaintiff’s excerpt
of the deposition, Ambroz appeared to deny having the conversation altogether. However, the
quote is taken out of context. It is clear that Ambroz is merely saying she cannot specifically
answer the employment question at the present time and that, if she answered it in the past, she
does not recall the conversation.65 There is no contradictory evidence put forward by Ambroz’s
and Anglen’s testimony. The City concluded that it did not have the obligation to consider
Douglas for the position.
Even if Plaintiff was supposed to be reconsidered for the position, Plaintiff’s failure-torehire claim still fails. Plaintiff still must raise some possibility that there was a causal
connection between the failure to re-hire and the FMLA leave. Plaintiff offers no direct or
indirect evidence. Plaintiff presumes that the failure to consider her is sufficient at this stage. It
is not.
The Court GRANTS Defendants’ motion for summary judgment as to Count II.
IV.
Conclusion
For the foregoing reasons, Defendants are entitled to summary judgment on Counts I and
II of the complaint.
IT IS SO ORDERED.
Dated: March 22, 2016
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Doc. 16-6 at 41:4 to 42:2 (“Q: Did you ever tell Ms. Anglen that Ms. Douglas didn’t need to be put in
the part-time assistant administrator position? A: I don’t recall that . . . Did Ms. Anglen ever ask you if
they have to hire Ms. Douglas back? A: I don’t recall that.”).
65
Compare 16-6 at 42:10-15 (Plaintiff’s excerpt) with Doc. 16-6 from 42:10 to 43:4.
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