Oliver v. Williams Companies, Inc., The
Filing
54
OPINION AND ORDER by Judge Claire V Eagan ; granting in part and denying in part 36 Motion for Summary Judgment (Re: State Court Petition/Complaint ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ROBIN OLIVER,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
THE WILLIAMS COMPANIES, INC.,
Defendant.
Case No. 12-CV-0585-CVE-PJC
OPINION AND ORDER
Now before the Court is Defendant’s Motion for Summary Judgment and Brief in Support
(Dkt. # 36). Defendant The Williams Companies, Inc., (Williams) seeks summary judgment on all
of plaintiff’s claims, and it argues that plaintiff has no evidence that Williams discriminated against
her because of a disability or that Williams took any adverse employment action against her because
she sought to take leave under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA).
I.
Robin Oliver was hired by Williams in 1998, and during the last two years of her
employment with Williams she worked as a senior records analyst. Dkt. # 36-1, at 4, 13. Oliver
worked in the Records Group, specifically a division of Williams called Records Information
Management (RIM), and her direct supervisor was Walt Fielding. Id. at 15-16. As a senior records
analyst, Oliver was responsible for “providing Record Center administrative assistance, ensuring
that RIM policies and procedures are followed related to physical records, reviewing and monitoring
the records management indexing system for accuracy, requesting records from storage and
identifying records for destruction.” Dkt. # 36-2, at 55. Oliver testified in her deposition that her
job kept her “very busy” on a regular basis. Dkt. # 45-1, at 32. One of the key aspects of Oliver’s
position in the Records Group was the time-sensitive nature of requests made by Williams’
employees or customers. Dkt. # 36-1, at 28-29. The Records Group often received records requests
with a two week deadline to fulfill the request, but attorneys involved in litigation regularly
requested records on short notice. Id. Oliver’s shift usually began at 8:30 a.m. and her shift ended
by 5:00 p.m. Dkt. # 36-1, at 19. Regardless of actual hours worked, Oliver was paid for a 40 hour
work week unless she noted an exception on her time records. Dkt. # 45-12, at 4. It was plaintiff’s
responsibility to keep track of her time and report any exceptions if she worked more or less than
40 hours per week. Dkt. # 36-4, at 7; Dkt. # 45-12, at 4. Oliver stated in her deposition that the
employee was responsible for reviewing his or her hours, updating the time records to note any time
off, and submitting it to his or her supervisor for review every two weeks. Dkt. # 36-1, at 116-18.
Williams provided its employees a written handbook containing its employment policies,
including its FMLA policy, and Oliver had a copy of this handbook throughout her employment.
Dkt. # 36-1, at 7. The handbook states that employees are entitled to 12 weeks of “unpaid, jobprotected leave . . . for certain family and medical reasons” during any rolling 12-month period, and
the “12-month period is measured looking back from the commencement of your leave.” Dkt. # 362, at 49. To become eligible for FMLA leave, an employee had to work at least 1,250 hours during
the 12 months preceding the request for leave. Id. Williams provides its employees leave for illness
or injury, separate and apart from the FMLA, and it also provides its employees short term disability
(STD) benefits if leave is taken for a serious health condition. Id. Williams requires its employees
to use any available paid time off while an employee is on FMLA leave. Id. Williams used a thirdparty administrator to manage its FMLA policy, and the third-party administrator would determine
2
if an employee was eligible for FMLA leave. See Dkt. # 36-1, at 46; Dkt. # 36-2, at 64. From 2007
to 2010, the third-party administrator for Williams’ FMLA program was UnumProvident
Corporation (Unum), and CIGNA Leave Solutions (CIGNA) became the third-party administrator
in 2011. Dkt. # 36-6, at 5. The FMLA policy in place in 2011 states that “[t]his program will be
interpreted in accordance with the [FMLA] and its related regulations. This program is not to be
construed as a guarantee of continued employment in any particular capacity.” Dkt. # 36-2, at 130.
When a request for FMLA leave was submitted by an employee, the third-party administrator relied
on time records supplied by Williams from its payroll system. Dkt. # 36-6, at 5. Oliver testified in
her deposition that she viewed FMLA leave as “earned” based on the number of hours worked, and
she believed that her FMLA leave was stored or “banked” for future use. Dkt. # 36-1, at 9.
Beginning in October 2009, Oliver experienced health problems related to an undiagnosed
abdominal ailment. Id. at 55. Oliver gave notice to Unum that she would be filing an STD claim.
Dkt. # 36-2, at 74. Oliver did file a claim for STD benefits and she requested FMLA leave, and both
requests were approved. Id. at 84. Over the next year, plaintiff intermittently took FMLA leave due
to her abdominal ailment. Id. at 91, 104, 106. Internal communications between Williams’
employees suggest that they were concerned about the amount of work that Oliver had missed and
whether Williams could fill Oliver’s position with a permanent employee while she was gone. Dkt.
# 45-5. Although Oliver had taken FMLA leave between September 2009 and September 2010,
Oliver’s supervisor inquired whether Oliver was actually entitled to FMLA leave for all of the leave
taken during this time period. Id. Chris Beck, a benefits specialist for Williams, investigated the
matter and it appeared that plaintiff may have taken unauthorized leave. Id. Beck suggested that
progressive discipline for absenteeism should be considered if Oliver continued to miss work. Id.
3
Oliver returned to work in September 2010 and, on September 14, 2010, Williams sent her a letter
to notify her of available FMLA leave, paid time off, and short term disability benefits remaining
as of that date. Id. at 119. Over the previous year, Oliver had received STD benefits for 89 days
of missed work.1 Id. The letter also advised plaintiff that she had 11 weeks and one day of FMLA
leave available over the next twelve months.2 Id. After returning to work, Oliver continued to miss
work due to her abdominal ailment, and her time sheets verify that she took a substantial amount of
paid time off between September 2010 and January 2011. Dkt. # 45-15, Dkt. # 45-16. Oliver claims
that Williams’ time records are inaccurate because several weeks state that she worked “0.00” hours,
even though she claims that she was actually at work. Dkt. # 45, at 11. Williams has submitted the
affidavit of Susan Hamil, a benefits analyst at Williams, who explains that an employee’s time
records will always state “0.00” if the employee works a standard or “default” work week, and the
time records include a specific calculation of hours worked only if the employee records exceptions
during the two week pay period. Dkt. # 49-2. Williams has also provided payroll records showing
that Oliver was paid for the disputed weeks which her time records show that she worked “0.00”
hours, and Hamil states that the payroll records were provided to Williams’ third party administrator.
Id. This is consistent with the evidence cited by Oliver that non-salaried employees such as Oliver
1
Plaintiff disputes defendant’s calculation of the number of days she missed work based on
her belief that defendant’s records are “notoriously inaccurate.” Dkt. # 45. However, the
letter plainly states that plaintiff missed 89 days of work and plaintiff has offered no
evidence to refute this calculation. See Dkt. # 36-2, at 119.
2
Plaintiff subsequently received a letter from Unum stating that she had five weeks and three
days of FMLA leave remaining as of September 13, 2010. Dkt. # 45-32. This is inconsistent
with the information provided to plaintiff by Williams.
4
were automatically credited for a 40 hour work week if no exceptions were listed by an employee
on his or her time records. Dkt. # 45-12, at 4.
On January 4, 2011, Oliver called her supervisor, Fielding, to report that she would be unable
to work that day due to her abdominal ailment. Dkt. # 36-5, at 2. Oliver missed work on January
6, 2011, but there is no evidence that she notified Fielding that she would be absent. Id. Fielding
sent an e-mail to Mia Parker3 stating that Oliver was “not off to a good start for 2011,” but he
wanted to be “fair and have a good understanding of how to manage [Oliver’s] time off going
forward.” Dkt. # 45-21. Oliver left work early on January 7, 2011 because she was “feeling very
bad,” and she did not come back to work for Williams after that date. Dkt. # 36-5, at 2. Fielding
called Oliver on January 10, 2011 after she failed to report for work, and Fielding advised Oliver
to contact CIGNA if she needed to take time off from work. Id. Oliver called CIGNA as Fielding
suggested and she left Fielding a message advising him that she had spoken to CIGNA. Id. On
January 11, 2011, Oliver told Fielding that she would be seeing her physician the next day, and
Fielding did not speak to Oliver again until January 13, 2011. Id.
On January 12, 2011, Williams sent Oliver a letter stating it had received notice of her claim
for STD benefits and for FMLA leave, and it stated that she “may qualify for leave under the
[FMLA].” Dkt. # 45-19. The letter contained no guarantee that Oliver was actually entitled to
FMLA leave. CIGNA sent Oliver a letter on January 13, 2011 stating that it was “undetermined”
if Oliver was eligible for short term disability, but CIGNA had determined that Oliver was ineligible
for FMLA leave because she had not worked the minimum number of hours in the preceding 12
3
The parties have not identified Parker’s position but it appears that Parker was an employee
of Williams who dealt with personnel matters.
5
months. Dkt. # 45-6. On January 13, 2011, Fielding spoke to Oliver on the telephone, and Oliver
stated that she did not know when she would be returning to work and she would be seeking
approval from her health insurer to seek treatment at the Baylor University Hospital (Baylor) in
Texas. Dkt. # 36-5, at 2. Oliver left a voicemail for Fielding on January 14, 2011 stating that she
had an appointment at Baylor on January 18, 2011.4 Id. On January 24, 2011, Oliver told Fielding
that she was returning from Baylor and that she had been diagnosed with a large ulcer. Id. Oliver
stated that she might be able to return to work the following week if her medication helped, but she
made no definite plans to return to work. Id. Oliver also had not submitted any note or record from
her healthcare providers that she had been cleared to return to work. Id. at 3. Oliver claims that she
believed that it was unnecessary to submit a doctor’s note, because she had spoken to Fielding about
taking paid time off and Fielding had not indicated that her employment was in jeopardy. Dkt. # 4517, at 3-4. Oliver states that she had requested to use paid time off, but her deposition testimony
shows that Fielding made no guarantee that such a request would be approved. Dkt. # 45-1, at 36.
On January 25, 2011, Williams sent Oliver a letter notifying her that her employment was being
terminated, because it was necessary to fill her position due to “on-going business needs.” Dkt. #
45-20. Oliver inquired about her termination and her eligibility for FMLA leave. On February 4,
2011, Williams sent a letter to Oliver explaining that it had reviewed the third party administrator’s
conclusion that Oliver was not eligible for FMLA leave, and Williams stated that Oliver had worked
4
Plaintiff claims that she told Fielding that she was going to Baylor and that she would call
him when she returned, and she also claims that she was placed on STD by CIGNA. The
citation to the record in plaintiff’s response does not support either statement. Dkt. # 45, at
12.
6
1,248 hours in the 12 months preceding her request for FMLA leave.5 Dkt. # 45-23. The minimum
hours needed to become eligible for FMLA leave is 1,250.
On September 25, 2012, plaintiff filed this case in Tulsa County District Court, alleging that
Williams discriminated against for exercising her rights under the FMLA. Plaintiff asserted claims
under the Americans with Disabilities Act, 42 U.S.C. § 12010 et seq. (ADA) and the FMLA, and
she also alleged a state law claim for intentional infliction of emotional distress.6 Plaintiff’s petition
does not expressly state whether she is alleging an FMLA claim under an interference theory, a
retaliation theory, or both. Dkt. # 2-1, at 3-4. Defendant removed the case to this Court based on
federal question jurisdiction. Dkt. # 2.
II.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored
5
Hamil testified in her deposition that plaintiff had worked only 1,071 hours in the 12 months
preceding her termination. Dkt. # 36-6, at 10.
6
The parties do not dispute that plaintiff fully exhausted her administrative remedies before
filing this lawsuit.
7
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed ‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court construes the record in the light most favorable to the party opposing summary judgment.
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
III.
A.
Defendant argues that plaintiff was not eligible for FMLA leave in January 2011 and plaintiff
cannot prevail on a claim for interference with her rights under the FMLA. Dkt. # 36, at 24-25.
Plaintiff argues that defendant kept inaccurate records of the hours worked by plaintiff, and the
burden shifts to defendant to establish that plaintiff failed to work the minimum number of hours
required to become eligible for FMLA leave.
Under the FMLA, an employer may not “interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided.” 29 U.S.C. § 2615(a)(1). To establish an FMLA
8
interference claim, a plaintiff must show “(1) that [she] was entitled to FMLA leave, (2) that some
adverse action by the employer interfered with [her] right to take FMLA leave, and (3) that the
employer’s action was related to the exercise or attempted exercise of [her] FMLA rights.” Jones
v. Denver Pub. Sch., 427 F. 3d 1315, 1319 (10th Cir. 2005). An employee may allege an FMLA
interference claim based on interference with the right to take the full amount of FMLA leave, the
denial of reinstatement after taking FMLA leave, or the denial of initial permission to take FMLA
leave. Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). Under an
interference theory, an employer’s intent in denying or interfering with an employee’s FMLA rights
is not relevant. See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877 (10th Cir. 2004).
Nonetheless, the FMLA is not a strict liability statute, and nothing in the FMLA entitles an
employee to greater protection from termination not related to her FMLA leave. Metzler v. Federal
Home Loan Bank of Topeka, 464 F. 3d 1164, 1180 (10th Cir. 2006).
In this case, plaintiff is arguing that defendant interfered with her right to take FMLA leave
in January 2011. Plaintiff claims that defendant affirmatively represented to her at least twice that
she had FMLA leave available, but it refused to allow her to take FMLA leave. However, this
aspect of plaintiff’s argument is based on a misunderstanding of the evidence, and she confuses
eligibility for FMLA leave with the amount of leave she could have taken if she established
eligibility for FMLA leave. Plaintiff argues that defendant affirmatively represented in September
2010 that she had 11 weeks of FMLA leave available, and defendant should be estopped from taking
a different position in this case. Courts have found that an employer can be liable under a theory
of interference with an employee’s FMLA rights if it gives incorrect advice about the amount of
leave available or the manner in which eligibility is calculated. Minard v. ITC Deltacom
9
Communications, Inc., 447 F.3d 352 (5th Cir. 2006); Ridgeway v. Royal Bank of Scotland Group,
2013 WL 1985016 (D. Conn. May 13, 2013). The September 2010 letter does state that plaintiff had
11 weeks and one day of FMLA leave available as of the date of the letter. However, the letter
contains no guarantee that plaintiff would be eligible for FMLA leave if she failed to work the
minimum numbers of hours to maintain eligibility for FMLA leave. Plaintiff also testified in her
deposition that she was aware that eligibility for FMLA was calculated using a rolling 12 month
period. Dkt. # 36-1, at 44. Nothing in the September 2011 letter could qualify as a guarantee or
affirmative representation that plaintiff would have 11 weeks and one day of FMLA leave available
at a future date if she failed to meet the minimum requirements to be eligible for FMLA leave, and
the letter does not bar defendant from challenging plaintiff’s eligibility for FMLA leave. Plaintiff
also cites a March 8, 2011 letter stating that plaintiff had 24 hours of FMLA leave available. This
letter was generated after plaintiff’s employment had already been terminated, and it also states that
plaintiff was ineligible for FMLA leave because of the minimum hour requirement. Dkt. # 45-24.
In any event, the issue in this case is not the amount of FMLA leave that plaintiff could take but,
instead, there is a dispute as to whether plaintiff was eligible for FMLA leave in January 2011. The
Court does not find that defendant’s representations about the amount of leave potentially available
to plaintiff could be a basis to equitably estop defendant from challenging plaintiff’s eligibility for
FMLA leave.
Plaintiff argues that defendant kept inaccurate records or failed to provide all of the records
to its third-party administrator, and this requires the Court to shift the burden to defendant to
establish that plaintiff failed to work 1,250 hours before she requested FMLA leave in January 2011.
It is generally the plaintiff’s burden to establish that she was entitled to FMLA leave. Been v. New
10
Mexico Dep’t of Information Technology, 815 F. Supp. 2d 1222 (D.N.M. 2011). Plaintiff cites 29
C.F.R. § 825.110(c), which provides that “[i]n the event an employer does not maintain an accurate
record of hours worked by an employee . . . the employer has the burden of showing that the
employee has not worked the requisite hours.” There is an inconsistency in the record as to the
number of hours worked by plaintiff. Hamil testified at her deposition that plaintiff had worked
1,071 hours in the 12 months preceding her request for FMLA leave, but defendant sent a letter to
plaintiff on February 4, 2011 stating that plaintiff had worked 1,248 hours.
This suggests that
there is an inconsistency in defendant’s record keeping and, viewing the evidence in a light most
favorable to plaintiff, the Court finds that there is a genuine dispute as to whether defendant kept
accurate records of plaintiff’s time or if it supplied accurate records to its third-party administrator
for FMLA leave. There is also evidence in the record that plaintiff contacted Fielding in January
2011 about her health condition, and plaintiff states in an affidavit that Fielding assured plaintiff that
her job was secure. Dkt. # 45-34. However, Fielding had already made inquiries about whether
plaintiff was eligible for FMLA leave and was aware that she might not be eligible. Dkt. # 45-13.
There is no evidence in the summary judgment record that plaintiff was warned before her
termination that her job was in jeopardy or that she could likely become eligible for FMLA leave
by working two more hours. Although the Tenth Circuit has not expressly adopted equitable
estoppel in FMLA cases, it has noted that there are circumstances similar to this case in which the
doctrine has been applied to prevent a defendant from challenging a plaintiff’s eligibility for FMLA
leave. Banks v. Armed Forces Bank, 126 Fed. App’x 905, 907 (10th Cir. 2005)7; see also Kosakow
7
Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
11
v. New Rochelle Radiology Assoc., P.C., 274 F.3d 706, 722 (2d Cir. 2001) (employee could have
postponed surgery and obtained eligibility for FMLA leave, but employer intentionally failed to
advise employee that she would not be eligible for leave if she proceeded with the surgery as
scheduled). This could be an appropriate case in which defendant could be estopped from
challenging plaintiff’s eligibility for FMLA leave, because a reasonable jury could find that
defendant discouraged plaintiff from returning to work to become eligible for FMLA leave. Even
though plaintiff has not conclusively established that she was eligible for FMLA leave in January
2011,8 she has raised a genuine dispute as to a material fact showing that equitable estoppel could
prevent defendant from raising this defense, and defendant’s motion for summary judgement should
be denied as to plaintiff’s FMLA interference claim.
B.
Defendant argues that plaintiff cannot establish a causal connection between the FMLA leave
she was permitted to take before January 2011 and her termination, and she cannot establish a prima
facie case of FMLA retaliation. Even if she could make out a prima facie case, defendant argues
that there is no temporal proximity between her authorized FMLA leave and her termination, and
its stated reason for terminating her employment was not pretextual. Plaintiff responds that
defendant’s internal communications reveal that plaintiff’s supervisors were looking for a way to
terminate her employment, and she was terminated in retaliation for attempting to take FMLA leave
in January 2011.
8
The Court notes that there is inconsistent evidence as to the number of hours worked by
plaintiff, and she may be able to prevail on an FMLA interference claim at trial if she can
show that she was actually eligible for FMLA leave in January 2011.
12
The FMLA prohibits an employer from retaliating against an employee for opposing a
practice made unlawful by the FMLA. 29 U.S.C. § 2615(a)(2). FMLA retaliation claims are subject
to the burden-shifting framework of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
Campbell, 478 F.3d at1287. To make out a prima facie FMLA retaliation claim, a plaintiff must
show that “(1) she engaged in a protected activity; (2) [her employer] took an action that a
reasonable employee would have found materially adverse; and (3) there exists a causal connection
between the protected activity and the adverse action.” Metzler, 464 F.3d at 1171. The Tenth
Circuit characterizes “the showing required to satisfy the third prong under a retaliation theory to
be a showing of bad intent or ‘retaliatory motive’ on the part of the employer.” Campbell, 478 F.3d
at 1287 (quoting Metzler, 464 F.3d at 1171). If plaintiff can establish a prima facie case of FMLA
retaliation, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for
the adverse employment action. Id. at 1290. The burden shifts back to the plaintiff to “show that
there is a genuine dispute of material fact as to whether [the employer’s] reasons for terminating her
are pretextual.” Id. (quoting Metzler, 464 F.3d at 1172). To establish a genuine dispute of material
fact as to pretext, a plaintiff cannot rely solely on temporal proximity of her FMLA leave and the
adverse employment action, and the plaintiff must offer some other evidence of retaliatory motive.
Metzler, 464 F.3d at 1172.
Defendant concedes the first and second elements of a prima facie case of FMLA retaliation,
but it argues that there is no evidence of a causal connection between plaintiff’s FMLA leave and
her termination. As to the third element, plaintiff argues that a January 11, 2011 e-mail shows that
Fielding was looking for a way to terminate plaintiff’s employment. In the e-mail exchange,
Fielding was communicating with Beck, a benefits analyst for Williams, about plaintiff’s absence
13
from work and her uncertain eligibility for FMLA leave, and Beck stated that “I’ll try to confirm .
. . that what we bargained for is going to happen as expected.” Dkt. # 45-13. In August and
September 2010, Beck exchanged e-mails with Parker, and Beck expressed confusion as to why
plaintiff was permitted to take time off in August 2010 when it appeared that she had exhausted her
FMLA leave. Dkt. # 45-14, at 3. Beck noted that plaintiff had stated that she would return to work
on June 3, 2010, but she her records also listed a return to work date of July 6, 2010. Id. at 2. Parker
followed up on Beck’s questions and found problems with the leave taken by plaintiff. Parker stated
that plaintiff was supposed to return to work on June 3, 2010, but she did not return to work until
July 6, 2010. Id. at 1. Plaintiff missed work from August 3 to August 16, 2010, but Unum had no
record that plaintiff had filed a claim for FMLA leave. Id. at 1. However, plaintiff received a letter
on September 14, 2010 congratulating her on her return to work, and the letter did not state that
plaintiff had taken any unauthorized leave. Dkt. # 45-11. The Court has reviewed no evidence
conclusively showing that plaintiff took any unauthorized leave before January 2011. The Court
also takes into account the facts cited in reference to plaintiff’s FMLA interference claim. In
particular, Fielding was aware that plaintiff’s absence from work could lead to her termination, but
plaintiff claims that he assured her that her job was safe and that she could remain off work while
she sought medical treatment. Beck’s statement that “what we bargained for is going to happen,”
when viewed in light of other evidence, could support a finding that defendant was looking for a
way to terminate plaintiff’s employment for requesting FMLA leave. Plaintiff has produced
evidence showing a causal connection between her protected activity and her termination, and
plaintiff can establish a prima facie case of FMLA retaliation.
14
The burden shifts to defendant to come forward with a legitimate, non-discriminatory reason
for terminating plaintiff’s employment. “The defendant’s burden is merely to articulate through
some proof a facially nondiscriminatory reason for the termination; the defendant does not at this
stage of the proceeding need to litigate the merits of the reasoning, nor does it need to prove that the
reason relied upon was bona fide, nor does it need prove that the reasoning was applied in a
nondiscriminatory fashion.” EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992). The
Tenth Circuit has described the defendant’s burden at this stage of the proceedings as “exceedingly
light.” Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1165 (10th Cir. 2007). Defendant states that
it terminated plaintiff’s employment due to her failure to return to work. Dkt. # 36, at 21. This is
a legitimate, non-discriminatory reason for terminating plaintiff’s employment, and the burden shifts
to plaintiff to show that defendant’s stated reason is pretextual.
At this stage of the proceeding, the burden shifts to plaintiff to show that defendant’s
explanation for terminating plaintiff’s employment is pretextual. Plotke v. White, 405 F.3d 1092,
1099 (10th Cir. 2005); Salguero v. City of Clovis, 366 F.3d 1168, 1176 (10th Cir. 2004). “A
plaintiff demonstrates pretext by showing either that a discriminatory reason more likely motivated
the employer or that the employer’s proffered explanation is unworthy of credence.” Stinnett v.
Safeway, Inc., 337 F.3d 1213, 1218 (10th Cir. 2003) (quoting Rea v. Martin Marietta Corp., 29 F.3d
1450, 1455 (10th Cir. 1994)). A plaintiff typically attempts to satisfy his or her burden by
“revealing ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s profferred legitimate reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence.’” Mackenzie v. City & County of Denver, 414 F.3d
1266, 1278 (10th Cir. 2005) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).
15
A plaintiff’s “mere conjecture” that the employer’s explanation is pretext is not a sufficient basis
to deny a motion for summary judgment. Branson v. Price River Coal Co., 853 F.2d 786, 772 (10th
Cir. 1988).
Viewing the evidence in a light most favorable to plaintiff, the Court finds that plaintiff has
produced evidence raising a genuine dispute of material fact calling into question whether
defendant’s stated reason for terminating her employment was pretextual. Plaintiff argues that she
requested FMLA leave in January 2011 and that there is a temporal relationship between her
protected activity and her termination. Dkt. # 45, at 30. This can be evidence of pretext in a
retaliation case. Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1001 (10th Cir. 2011). Beck’s
statement to Fielding that “what we bargained for is going to happen,” viewed in light of his prior
e-mails to Parker, could suggest that defendant’s employees had internally discussed the possibility
of plaintiff’s termination before she requested FMLA leave in January 2011. Beck’s e-mails to
Parker also suggest that defendant was dissatisfied with the amount of leave taken by plaintiff, and
this supports a finding that defendant’s termination of plaintiff’s employment was retaliatory. The
Court also takes into account the evidence tending to show that plaintiff needed only two more hours
of work to become eligible for FMLA leave, and defendant failed to give plaintiff all of the
information she needed to determine whether to proceed with her surgery as planned. Defendant’s
explanation that it needed a person to fill plaintiff’s busy position is reasonable, but this does not
excuse defendant’s failure to give plaintiff accurate information about her FMLA leave status.
There is sufficient evidence from which a reasonable jury could find that plaintiff’s employment was
terminated in retaliation for exercising her rights under the FMLA, and defendant’s motion for
summary judgment is denied as to plaintiff’s FMLA retaliation claim.
16
C.
Defendant argues that plaintiff was not qualified to perform her job due to her irregular
attendance, and she cannot establish a prima facie case of disability discrimination. Defendant also
asserts that it terminated plaintiff’s employment due to its belief that she was not eligible for FMLA
leave, and there is no evidence that it fired plaintiff because of her disability. Plaintiff argues that
defendant discriminated against her because of a disability, because defendant interfered with her
right to take FMLA leave and made misleading statements to plaintiff about her job security.
The ADA prohibits “discriminat[ion] against a qualified individual on the basis of disability
in regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). Disability discrimination can be shown by direct or circumstantial evidence.
See Reinhardt v. Albuquerque Public Schools Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010).
ADA discrimination cases based on circumstantial evidence are governed by the burden-shifting
framework announced in McDonnell Douglas. Morgan, 108 F.3d at 1323. In order to establish a
prima facie case of disability discrimination under the ADA, a plaintiff must demonstrate:
(1) that she is a disabled person within the meaning of the ADA; (2) that she is
qualified, that is, she is able to perform the essential functions of the job, with or
without reasonable accommodation; and (3) that the employer terminated her
employment under circumstances which give rise to an inference that the termination
was based on her disability.
Id. at 1324 (internal citations omitted). Pursuant to this framework, the plaintiff bears the initial
burden of establishing a prima facie case of discrimination. If she does so, “then the defendant must
offer a legitimate, non-[discriminatory] reason for the employment action. The plaintiff then bears
the ultimate burden of demonstrating that the defendant’s proffered reason is pretextual.” Metzler,
17
464 F.3d at 1170 (citations omitted). In order to defeat a motion for summary judgment, the plaintiff
must show that “there is a genuine dispute of material fact as to whether the employer’s proffered
reason for the challenged action is pretextual-i.e., unworthy of belief.” Randle v. City of Aurora,
69 F.3d 441, 451 (10th Cir. 1995).
Defendant concedes for the purpose of the motion for summary judgment that plaintiff was
disabled. Dkt. # 36, at 18 n.1. However, it disputes that plaintiff was qualified to perform the
essential functions of her job or that plaintiff’s employment was terminated under circumstances
giving rise to an inference of disability discrimination. Defendant argues that regular and punctual
attendance at work was an essential function of plaintiff’s job, and attendance can be essential job
function. Mason v. Samson Resources Co., 525 Fed. App’x 703, 708 (10th Cir. May 8, 2013).9
Plaintiff responds that FMLA leave can be considered a reasonable accommodation and that she
could have maintained her employment if her request for FMLA leave had been granted. Dkt. # 45,
at 22-23. A limited amount of leave for medical treatment can be considered a reasonable
accommodation. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002).
There is a genuine dispuate as to whether plaintiff was entitled to FMLA leave and, for the purpose
of defendant’s motion for summary judgment, the Court will assume that plaintiff could have
performed her job with a limited amount of FMLA leave. For the purposes of this Opinion and
Order, the Court will also assume that plaintiff can establish the final element of her prima facie
case, and the Court will proceed with the burden-shifting analysis. See Leibforth v. Belvidere Nat’l
Bank, 337 F.3d 931, 933 (7th Cir. 2003) (district court can presume that prima facie case is
9
Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
18
established and dispose of claim on other grounds). As the Court has previously stated, defendant
has provided a legitimate, non-discriminatory explanation for terminating plaintiff’s employment that she was not entitled to FMLA leave and that she failed to return to work - and the Court will
consider whether plaintiff can show that this explanation is pretext for disability discrimination.
Plaintiff relies on the same arguments to show pretext for her disability discrimination claim
as she did in the context of her FMLA retaliation claim. However, those arguments to not support
a finding that defendant discriminated against plaintiff because of a disability. The evidence shows
that defendant honestly, even if possibly mistakenly, believed that plaintiff was not entitled to
FMLA leave, and the record is clear that the reason for plaintiff’s termination was her failure to
return to work in January 2011. Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th
Cir. 2004) (“The relevant inquiry is not whether [the employer’s] proffered reasons were wise, fair,
or correct, but whether [it] honestly believed those reasons and acted in good faith upon those
beliefs). The evidence shows that plaintiff had a history of missing work and that defendant was
concerned that plaintiff’s irregular attendance at work was disrupting defendant’s business. While
plaintiff may have missed work due to a medical condition, the FMLA and ADA protect an
employee against different types of discrimination. As stated in Hoge v. Honda of America Mfg.,
Inc., 384 F.3d 238 (9th Cir. 2004), “[t]he ADA and the FMLA have divergent aims, operate in
different ways, and offer disparate relief.” Id. at 249. Plaintiff has produced no evidence that her
disability was a motivating factor in her termination, because this is not a case where a disability
prevented her from performing certain job functions. Instead, she completely failed to report to
work and her absences, not her underlying medical condition, prompted defendant to terminate her
employment. Plaintiff’s right to medical leave is protected by the FMLA, not the ADA, and the
19
Court has found that there is a genuine dispute as to whether plaintiff was entitled to FMLA leave.
In addition, the Court notes that plaintiff’s last day of work was January 7, 2014 and her
employment was not terminated until January 25, 2014, and she effectively received an
accommodation in the form of unpaid leave during this period before her employment was
terminated. While limited medical leave could be a reasonable accommodation, “an employer is not
required by the ADA . . . to provide an unlimited absentee policy.” Brannon v. Luco Mop Co., 521
F.3d 843, 849 (8th Cir. 2008). Plaintiff gave no indication to defendant when she intended to return
to work, and it appeared to defendant that plaintiff was taking unlimited medical leave and that
plaintiff was not eligible for such leave under the FMLA. The Court finds no evidence suggesting
that defendant’s legitimate, non-discriminatory reason for terminating her employment was pretext
for disability discrimination, and defendant is entitled to summary judgment on plaintiff’s ADA
claim.10
D.
Defendant argues that plaintiff has no evidence showing that it engaged in extreme and
outrageous conduct, and plaintiff cannot prevail on a claim of intentional infliction of emotional
distress under Oklahoma law. Dkt. # 36, at 28. Plaintiff has not responded to this argument and it
is possible that she has abandoned her intentional infliction of emotional distress claim. Even
though plaintiff has not argued in support of this claim, the Court will consider whether summary
judgment is appropriate on the merits of his intentional infliction of emotional distress claim.
10
Plaintiff seeks relief under the ADA for disability discrimination and for an alleged failure
to accommodate her disability. The Court does not separately deal with her failure to
accommodate claim because, as a matter of law, she has not shown that she requested a
reasonable accommodation. See Brannon, 521 F.3d at 849 (unlimited medical leave is not
a reasonable accommodation under the ADA).
20
Oklahoma courts have recognized a cause of action for intentional infliction of emotional
distress, also known as the tort of outrage. See Gaylord Entertainment Co. v. Thompson, 958 P.2d
128, 149 (Okla. 1998). The action is governed by the narrow standards laid out in the Restatement
Second of Torts, § 46. Id. In Breeden v. League Services Corp., 575 P.2d 1374 (Okla. 1978), the
Oklahoma Supreme Court explained:
Liability has been found only where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community. Generally,
the case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to exclaim,
‘Outrageous!’ The liability clearly does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.
Id. at 1376. To state a claim, a plaintiff must allege that “(1) the defendant acted intentionally or
recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s conduct
caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.”
Schovanec v. Archdiocese of Oklahoma City, 188 P.3d 158, 175 (Okla. 2008) (quoting Computer
Publications, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002)). Under Oklahoma law, the trial court
must assume a “gatekeeper role” and make an initial determination that the defendant’s conduct
“may be reasonably regarded as sufficiently extreme and outrageous to meet the Restatement § 46
standards.” Trentadue v. United States, 397 F.3d 840, 856 n.7 (10th Cir. 2005) (applying Oklahoma
law). If reasonable persons could reach differing conclusions in the assessment of the disputed facts,
the Court should submit the claim to the jury to determine whether the defendant’s conduct could
result in liability. Id. The Court is to make a similar threshold determination with regard to the
fourth prong, the presence of severe emotional distress. Id.
21
In cases arising out of the workplace, Oklahoma appellate courts have found that a defendant
engaged in extreme and outrageous conduct only when that defendant intentionally and persistently
engaged in a course of conduct that harmed the plaintiff. See Computer Publications, 49 P.3d at 736
(claim should have been submitted to a jury when plaintiff presented evidence that harassment lasted
more than two years and caused plaintiff to quit her job, move, and repeatedly change phone
numbers); Miner v. Mid-America Door Co., 68 P.3d 212 (Okla. Civ. App. 2002) (employer’s alleged
failure to reassign the plaintiff after learning of workplace harassment, even if unreasonable, was
not extreme and outrageous); Gabler v. Holder & Smith, Inc., 11 P.3d 1269 (Okla. Civ. App. 2000)
(noting that workplace harassment rarely rises to the level of extreme and outrageous conduct);
Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla. Civ. App. 1998) (employer’s conduct was
not extreme and outrageous when, inter alia, the plaintiff’s manager made derogatory sexual remarks
about the plaintiff, woke plaintiff up in the middle of the night to do unnecessary work, and
terminated him two hours before his wedding); Zahorsky v. Community Nat’l Bank of Alva, 883
P.2d 198 (Okla. Civ. App. 1994) (employer not liable for intentional infliction of emotional distress
when an employee forced the plaintiff to have sex with him and employer failed to fire the
employee, even though the employer allegedly knew about the conduct).
Although the Court has found that there is a genuine dispute as to whether plaintiff was
entitled to FMLA leave in January 2011, there is no evidence that defendant engaged in extreme and
outrageous conduct. Defendant believed that plaintiff was not entitled to FMLA leave and, even if
this belief was mistaken, defendant did not harass plaintiff about her decision to stop coming to work
after January 7, 2011. There is also no evidence that defendant engaged in improper conduct in
regard to plaintiff’s prior requests for leave and, in fact, it welcomed her back to work in September
22
2010 when she returned from FMLA leave. Dkt. # 45-11. The Court finds no evidence that
defendant engaged in extreme and outrageous conduct, and defendant’s motion for summary
judgment should be granted as to plaintiff’s intentional infliction of emotional distress claim.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment and
Brief in Support (Dkt. # 36) is granted in part and denied in part: the motion is granted as to
plaintiff’s ADA and intentional infliction of emotional distress claims, but it is denied as to
plaintiff’s FMLA claims.
DATED this 4th day of April, 2014.
23
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