Rice v. Kellermeyer Company
Filing
48
Memorandum Opinion and Order Re: 33 Motion for summary judgment and Memorandum in Support filed by Kellermeyer Company. Defendant Kellermeyer's motion for summary judgment is denied. Judge Jeffrey J. Helmick on 7/15/14. (SG,D)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Ronald Rice,
Case No. 3:13-cv-00263
Plaintiff
v.
MEMORANDUM OPINION
AND ORDER
Kellermeyer Company,
Defendant
I.
INTRODUCTION
Before me is the motion of Defendant Kellermeyer Company for summary judgment. (Doc.
No. 33). Plaintiff Ronald Rice has filed a response to Kellermeyer’s motion. (Doc. No. 41).
Kellermeyer filed a reply. (Doc. No. 43). For the reasons stated below, I deny Kellermeyer’s
motion for summary judgment on all claims.
II.
STANDARD
A district court shall grant a party’s motion for summary judgment if the movant
demonstrates there is no genuine dispute of material fact and that the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). The movant may meet its burden by showing there is an
absence of evidence to support an element of a claim on which the nonmovant has the ultimate
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant has satisfied its
burden, the nonmovant then must set forth “specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). All evidence must
be viewed in the light most favorable to the nonmovant, and all reasonable inferences drawn in the
nonmovant’s favor. White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008). A factual
dispute is genuine if a reasonable jury could resolve the dispute and return a verdict in the
nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is
material only if its resolution might affect the outcome of the case under the governing substantive
law. Rogers v. O’Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).
III.
BACKGROUND
Rice worked for Kellermeyer as the Vice-President of Sales from January 2011 until his
termination on June 15, 2012. At the beginning of 2012, Rice announced to his coworkers that his
wife was pregnant with their first child. (Doc. No. 25 at 23; Doc. No. 26 at 6). Days later, Rice was
assigned to additional duties, previously filled by a full-time employee who had just left Kellermeyer.
(Doc. No. 31-6 at 1).
On June 6, Rice requested permission to use vacation time from June 11 through June 15, in
part because of “an unexpected appointment” for his pregnant wife. (Doc. No. 32-1 at 3). Jill
Kegler, as Rice’s supervisor and Kellermeyer’s Co-President along with her husband Greg Kegler,
reviewed his request and declined to permit Rice to use paid leave to cover June 14 and June 15.
She informed Rice that if he “chose to take those days off, they will be unpaid.” (Doc No. 32-2 at
1). Rice subsequently requested Family and Medical Leave Act (“FMLA”) paperwork from Michele
Miles, Kellermeyer’s director of human resources, to enable him to attend the appointment,
explaining that Jill had not approved his request for paid time off. (Doc. No. 29 at 29). On June 15,
2012, three days after he requested the FMLA paperwork, Rice was terminated. (Doc. No. 39 at 28).
Jill hired Mike Pisa to replace Rice, and Pisa started a few days after Rice’s termination. (Doc. No.
30 at 47).
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Rice contends Kellermeyer violated provisions of the FMLA by interfering with, restraining,
or denying Rice the exercise of rights provided under the FMLA and retaliating against Rice by
discharging him for asserting or otherwise exercising his rights under the FMLA. (Doc. No. 1 at 3).
Kellermeyer asserts Rice’s termination was a result of months of his failure to reach goals, execute
plans, and meet the expectations of a Vice-President of Sales.
IV.
ANALYSIS
The Sixth Circuit recognizes two distinct theories for recovery under the FMLA: (1) the
“interference” theory arising under 29 U.S.C. § 2615(a)(1), and (2) the “retaliation” theory arising
under 29 U.S.C. § 2615(a)(2). Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 282 (6th Cir. 2012). Rice
has brought claims under both theories, asserting Kellermeyer interfered with his rights under the
FMLA and that his termination was the result of retaliation for his attempt to utilize his FMLA
rights.
A. INTERFERENCE
The interference provision of the FMLA makes it unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise any right provided in the Act. 29
U.S.C. § 2615(a)(1). To establish a prima facie case of interference under the FMLA, a plaintiff must
demonstrate: (1) he was an eligible employee; (2) the defendant was an employer as defined in the
FMLA; (3) he was entitled to leave under the FMLA; (4) he gave defendant notice of his intention to
take leave; and (5) the defendant denied the plaintiff FMLA benefits to which he was entitled. Edgar
v. Jac Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006). The interference theory does not convert the
FMLA into a strict-liability statute because “interference with an employee’s FMLA rights does not
constitute a violation if the employer has a legitimate reason unrelated to the exercise of the FMLA
rights for engaging in the challenged conduct.” Id. at 508.
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Rice identifies evidence to establish, and Kellermeyer does not directly dispute, the existence
of the five elements necessary to form an interference claim. Instead, Kellermeyer offers an
explanation for his termination it claims to be unrelated to Rice’s FMLA claim, which I will address
below.
B. RETALIATION
The FMLA also makes it unlawful for an employer to discharge an employee for a reason
prohibited by the statute. Seeger , 681 F.3d at 282; see 29 U.S.C. § 2615(a)(2). In contrast to the
interference theory, here the defendant’s motive “is relevant because retaliation claims impose
liability on employers that act against employees specifically because those employees invoked their
FMLA rights.” Seeger, 681 F.3d at 282 (quoting Edgar, 443 F.3d at 508) (emphasis in original). To
establish a prima facie case of retaliation, the plaintiff must show that: (1) he was engaged in an
activity the FMLA protects; (2) the defendant knew he was exercising his FMLA rights; (3) the
defendant took an employment action adverse to him; and (4) there was a causal connection
between the protected FMLA activity and the adverse employment action. Jaszczyszyn v. Advantage
Health Physician Network, 504 F. App’x 440, 447 (6th Cir. 2012) (quoting Killian v. Yorozu Auto. Tenn.,
Inc., 454 F.3d 549, 556 (6th Cir. 2006)). The plaintiff’s burden to establish a prime facie case is not
difficult; instead the burden is easily met. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987) (citing
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Kellermeyer asserts that Rice cannot
establish the second and fourth criteria of his prima facie case.
a. KNOWLEDGE
Kellermeyer claims Rice can show no evidence that Jill knew about the FMLA request prior
to terminating Rice. The Sixth Circuit has held “one cannot retaliate against an employee for
engaging in protected activity unless he knew the employee had done so.” Scott v. Eastman Chem. Co.,
275 F. App’x. 466, 482 (6th Cir. 2008) (emphasis added). Knowledge may be inferred from evidence
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in the record. Id.; see, e.g., Proffitt v. Metro. Gov’t of Nashville & Davidson Cnty., 150 F. App’x 439, 44243 (6th Cir. 2005); Bills v. Aseltine, 958 F.2d 697, 708 (6th Cir. 1992) (“Facts may be established by
inference, but the inferences must be reasonable ones.”). Rice points to evidence in the record
sufficient to show there is a genuine issue of material fact as to whether Kellermeyer’s decision
makers had knowledge of his protected activities.
First, Rice asserts a reasonable juror could infer Jill learned of Rice’s FMLA request from
Greg, Michelle Miles, or both. After Rice informed Miles he needed FMLA paperwork because Jill
had not approved his request for time off to attend his wife’s appointment, Miles conducted an
internet search to obtain the necessary documents, as there were no copies in her office. (Doc. No.
29 at 29). Moreover, several days before Rice’s termination, Miles informed Greg that Rice had
requested FMLA paperwork. (Doc. No. 25 at 30). Greg testified he is normally notified of a FMLA
request only if an employee who directly reports to him is approved for leave. (Doc. No. 25 at 30).
Consequently, the conversation between Miles and Greg was unusual because Rice did not directly
report to Greg, nor had the leave request been approved. (Doc. No. 25 at 31).
Kellermeyer asserts this circumstantial evidence is not enough to overcome the deposition
testimony from Miles, Jill, and Greg that neither Miles nor Greg told Jill of Rice’s FMLA request.
(See Doc. No. 29 at 29; Doc. No. 25 at 31). Rice argues I should disregard this testimony at the
summary judgment stage because Miles, Greg, and Jill are interested witnesses, and the jury would
not be required to believe their statements. The Supreme Court has instructed lower courts
weighing Rule 501 motions to “give credence to the evidence favoring the nonmovant as well as that
evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent
that the evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S.
133, 151 (2000) (emphasis added). This does not require a court to disregard all evidence provided
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The Reeves Court noted the inquiry is the same under Rule 50 and Rule 56. Reeves, 530 U.S. at 150.
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by an interested witness in support of the moving party, as “defendants will often be able to respond
only through the testimony of their employees.” Stratienko v. Cordis Corp., 429 F.3d 592, 598 (6th Cir.
2005) (citing Almond v. Abb Indus. Sys., Inc., 56 F. App’x 672, 675 (6th Cir. 2003)). It is well
established “that courts need not deny the conclusiveness of testimony of the moving party that ‘is
not contradicted by direct evidence, nor by any legitimate inferences from the evidence[,]’ because
the rule requiring the testimony be considered by the jury is not ‘an absolute and inflexible one.’”
Stratienko, 429 F.3d at 598 (quoting Chesapeake & Ohio Ry. v. Martin, 283 U.S. 209, 218 (1931)
(alteration in original)).
Here a reasonable juror could reject the interested-witness testimony by drawing legitimate
inferences from the record evidence. Although there is no direct evidence to contradict Greg’s and
Miles’ assertions they never spoke with Jill about Rice’s FMLA request, it is unlikely there would be.
Miles knew Jill denied Rice’s request to use paid leave for June 14 and 15, and also testified she
never had received a request for FMLA forms prior to Rice’s request. Mile’s office was three doors
from Jill’s. (Doc. No. 29 at 30). It is unlikely any evidence of a short, in-person conversation
between them existed, just as it is unlikely there would be evidence of a similar conversation
between the Keglers. As husband and wife, Greg and Jill would have more frequent interactions
than typical coworkers. Moreover, the Keglers are members of Kellermeyer’s leadership team and
co-owners of the company. Given the unusual circumstances – the Keglers’ uncommon personal
and professional relationship and Miles’ conversation with Greg about Rice’s FMLA request despite
the fact that company policy did not require Greg be told even after the request was processed – a
reasonable juror could reject the proffered testimony and conclude Jill learned about Rice’s FMLA
request before his termination.
Second, Rice argues that, even if Jill did not know of the FMLA request, Greg was a
decision-maker in his termination. To be considered a decision-maker, a supervisor must be
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meaningfully involved in or influence the adverse employment decision at issue. Wells v. New
Cherokee Corp., 58 F.3d 233, 237-38 (6th Cir. 1995); see also Marsh v. E. Assoc. Estates Realty, 521 F.
App’x. 460, 467 (6th Cir. 2013) (a plaintiff must cite evidence that would permit a jury reasonably to
conclude an individual made or had the power to make termination decisions).
Jill asserts she made the decision to terminate Rice unilaterally, with no input from her
leadership team and that the team was unaware of Rice’s termination until it occurred on June 15.
Rice has pointed to sufficient evidence to identify a genuine dispute of material fact as to whether
Greg was a decision-maker in Rice’s termination. Greg was a member of the “leadership team” at
Kellermeyer and played a part in hiring Rice. (Doc. No. 30 at 20; Doc. No. 25 at 25). Greg also
admitted to interviewing Rice’s replacement, Mike Pisa. (Doc. No 25 at 32). This interview was
referenced as early as May 24 in an email from Jill to Pisa and appears to have occurred on June 6 or
7. (Doc. 35-1 at 9). It was only after this planned meeting and Rice’s termination that Jill made Pisa
an offer for the position. A reasonable juror could find Greg was meaningfully involved in Rice’s
termination. There is sufficient evidence to establish Rice’s supervisors knew of his FMLA request
prior to terminating him.
b. CASUAL CONNECTION
Kellermeyer claims that there is no causal connection between the protected FMLA activity
and the adverse employment action taken against Rice three days after the request was made.
“[W]here temporal proximity between the protected activity and the adverse employment action is
acutely near in time, that close proximity is deemed indirect evidence, such as to permit an inference
of their claim retaliation to arise.” DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004). “Although no
one factor is dispositive in establishing a causal connection, evidence . . . that the adverse action was
taken shortly after the Plaintiff’s exercise of protected rights is relevant to causation.” Singfield v.
Akron Metro. Hous. Auth., 389 F.3d 555, 563 (6th Cir. 2004) (quoting Nguyen v. City of Cleveland, 229
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F.3d 559, 563 (6th Cir. 2000)) (concluding three month time frame constituted sufficient evidence to
establish a causal connection). Numerous Sixth Circuit decisions have held a close temporal
proximity between the protected activity and adverse employment action meets the low threshold of
proof necessary to establish a prima facie case of retaliation. See, e.g., Mickey v. Zeidler Tool and Die
Co., 516 F.3d 516, 525-26 (6th Cir. 2008); Seeger, 681 F.3d at 283-84; Pettit v. Steppingstone, Ctr. for the
Potentially Gifted, 429 F. App’x 524, 533-34 (6th Cir. 2011); Davidson v. Roadway Express, Inc,, 562
F.Supp.2d 971, 983 (N.D.Ohio 2008); see also Vereecke v. Huron Sch. Dist., 609 F.3d 392, 400 (6th Cir.
2010) (“the more time that elapses between the protected activity and the adverse employment
action, the more the plaintiff must supplement his claim with ‘other evidence of retaliatory conduct
to establish causality.’” (quoting Mickey, 516 F.3d at 525)).
Kellermeyer argues Rice’s termination was not retaliatory because (1) Jill had no knowledge
Rice requested FMLA paperwork and (2) Jill had been in discussions with Pisa to replace Rice
months prior to his FMLA request. I concluded above that given evidence in the record, a
reasonable juror could find Jill in fact knew of the FMLA request. Further, Kellermeyer has not
identified any evidence to support its assertion Jill had been planning “for months” to hire Pisa to
replace Rice. (Doc. No. 33 at 16). Rather, Jill’s emails frequently reflect only a promise to “stay in
touch” and desire “to keep [the] conversation going.” (Doc. No. 35-1 at 2, 7). Even Jill’s suggestion
that “[t]here may be a place in BG” for Pisa makes no reference to the job duties involved. (Doc.
No. 35-1 at 3).
Rice was terminated very shortly after he requested FMLA paperwork. (Doc. No. 32-2 at 1;
Doc. No. 30 at 47-48). While Rice actually was terminated on June 15, Jill met with Pisa to discuss a
sales leadership position on June 14, (Doc. No. 35-1 at 10), and stated she made the decision to fire
Rice two or three days (i.e., June 12 or 13) before terminating him. (Doc. No. 30 at 48). The close
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temporal proximity of Rice’s request for FMLA paperwork and his termination is sufficient to
establish the casual connection prong of his prima facie case.
C. PRETEXT
The McDonnell Douglas burden-shifting framework applies in FMLA interference and
retaliation claims, as the employer must offer a legitimate reason unrelated to the exercise of FMLA
rights for terminating an employee after the employee establishes the elements of the prima facie
case. Jaszcyszyn, 504 F. App’x at 447-48 (citing Donald v. Sybra, Inc., 667 F.3d 757, 761-62 (6th Cir.
2012)); Edgars, 443 F.3d at 508. Kellermeyer argues it had a legitimate reason to terminate Rice
unrelated to his request for FMLA paperwork – Rice underperformed as VP of Sales and failed to
meet the company’s expectations.
“Should the defendant carry this burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 248. “The plaintiff
may show that (1) the employer’s stated reason for terminating the employee has no basis in fact, (2)
the reason offered for terminating the employee was not the actual reason for the termination, or (3)
the reason offered was insufficient to explain the employer’s action.” Imwalle v. Reliance Medical Prod.
Inc., 515 F.3d 531, 545 (6th Cir. 2008) (citing Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078,
1084 (6th Cir. 1994)). The plaintiff bears the burden of producing evidence sufficient to allow a jury
to reasonably reject the defendant’s justifications and infer the defendants intentionally discriminated
against the plaintiff. Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003). See also Braithwaite v.
Timken Co., 258 F.3d 488, 493 (6th Cir. 2001).
Kellermeyer asserts Rice was terminated because of underperformance. Rice has identified
enough evidence to allow a reasonable juror to find this justification is an insufficient reason to
support his termination. Kellermeyer argues the reviews Rice received and the email exchanges
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between Rice and Jill show consistent underperformance and continued long enough to justify his
termination. The reviews, however, also contain very positive material and highlight numerous
positive aspects Jill viewed in Rice’s work. Both reviews expressly state that Rice is a valued member
to Kellermeyer and the skillset Rice exudes is a benefit to the company. (Doc. No. 31-2; Doc. No.
31-4). Tellingly, in Rice’s annual review in December 2011, Jill stated “it takes time to see the fruits
of his labor, I expect next year to be scoring Ron higher.” (Doc. No. 31-4). The reviews do not
conclusively demonstrate Rice’s underperformance and they could allow a reasonable juror to find
that Kellermeyer’s justification is insufficient to support Rice’s termination. Furthermore, after
completing the reviews, Jill gave Rice additional responsibilities; namely he was tasked to fill the void
of another full-time position that had been vacated. The email messages that followed this
delegation of new responsibilities similarly are not sufficient to justify Rice’s termination. Given that
Jill delegated new responsibilities to Rice, a reasonable juror could find that these emails
demonstrate Jill continually guiding Rice with his new responsibilities instead of evidence warranting
his termination.
Rice also offers enough evidence to create a jury question as to the actual reason for his
termination. Specifically, Rice asserts Jill had a change of position in regards to his status at
Kellermeyer after learning of his wife’s pregnancy. Prior to this announcement, Jill reviewed Rice’s
work twice and stated her belief Rice would improve with time and was an important figure at
Kellermeyer. The email exchanges between Jill and Rice that point to performance concerns and a
breakdown in communication occurred only after the pregnancy announcement. This timing allows
a juror to make the reasonable inference of retaliation and interference when considered in light of
all of the evidence.
Jill did not have conversations with Pisa that alluded to future employment until after her
knowledge of Rice’s wife’s pregnancy. Furthermore, the conversations Jill had with Pisa do not
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demonstrate any clear intention that Jill was interested in replacing Rice with Pisa. A reasonable
juror could find these conversations as evidence the actual reason for Rice’s termination is centered
on his impending absences from work due to his wife’s pregnancy, not underperformance.
Rice has met his “burden of producing evidence sufficient to allow a jury to reasonably reject
the defendant’s justifications and infer the defendants intentionally discriminated against” him.
Johnson, 319 F.3d at 866. This evidence permits the conclusion that Kellermeyer’s explanation for
Rice’s termination merely is a pretext for retaliation and interference. Therefore, Kellermeyer’s
motion for summary judgment is denied.
V.
CONCLUSION
For the reasons stated above, I deny Kellermeyer’s motion for summary judgment.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
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