Fields v. Integris Health Inc

Filing 39

ORDER granting in part and denying in part 25 Plaintiff's Motion for Partial Summary Judgment; denying 26 Defendants' Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 3/29/2019. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TAMRA J. FIELDS,
Plaintiff,
v.
INTEGRIS HEALTH, INC., d/b/a
INTEGRIS HEALTH d/b/a CORPORATE
INTEGRIS HEALTH,
Defendant.

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Case No. CIV-17-730-D

ORDER
This matter comes before the Court on cross-motions for summary judgment filed
pursuant to Fed. R. Civ. P. 56: Plaintiff’s Motion for Partial Summary Judgment [Doc.
No. 25]; and Defendant’s Motion for Summary Judgment [Doc. No. 26]. Both parties seek
a summary adjudication of Plaintiff’s claim that Defendant terminated her employment in
violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Each
party also seeks the determination of a discrete issue: Plaintiff, whether Defendant’s
affirmative defense of failure to mitigate damages lacks factual support; and Defendant,
whether an affirmative defense based on the after-acquired evidence doctrine limits
Plaintiff’s available damages. The Motions are fully briefed and ready for disposition. 1

1

Defendant filed a response [Doc. No. 28] in opposition to Plaintiff’s Motion and a reply
brief [Doc. No. 33] in support of its Motion. Plaintiff filed a response [Doc. No. 29] in opposition
to Defendant’s Motion and a reply brief [Doc. No. 32] in support of her Motion.

Standard of Decision
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In appropriate circumstances, a party may obtain summary
judgment on a part of a claim or defense. See id.; see also Harrison v. Eddy Potash, Inc.,
248 F.3d 1014, 1023 (10th Cir. 2001) (plaintiff “was entitled to summary judgment on
three elements of her Title VII claim”). A material fact is one that “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute is genuine if the evidence is such that a reasonable jury could
return a verdict for either party. Id. at 255.
The movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). If the movant carries this burden, the nonmovant must go beyond the
pleadings and “set forth specific facts” that would be admissible in evidence and that show
a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). “To accomplish this, the
facts must be identified by reference to affidavits, deposition transcripts, or specific
exhibits incorporated therein.” Adler, 144 F.3d at 671; see Fed. R. Civ. P. 56(c)(1)(A). If
a party who would bear the burden of proof at trial lacks sufficient evidence on an essential
element of a claim or defense, all other factual issues concerning the claim or defense
become immaterial. See Celotex, 477 U.S. at 322.

2

Statement of Undisputed Facts
Plaintiff Tamra Fields was employed by Defendant Integris Health, Inc. as an IT
applications analyst. Defendant is an FMLA-covered employer, and Plaintiff met the
statutory requirements for entitlement to FMLA leave.

She was approved to take

intermittent FMLA leave to care for each of her two children (a son and a daughter) in
October 2015. The approvals for this leave were set to expire in March and April of 2016.
Between October 2015 and May 2016, Plaintiff was disciplined for attendance and work
performance issues, and she received a performance evaluation with an overall rating of
“Needs Improvement.” 2
In April and May, 2016, Plaintiff sought to recertify her intermittent FMLA leave.
The facts surrounding the paperwork required for recertification are contested. On June 6,
2016, Mr. Jung went to Plaintiff’s desk to speak to her about work-related matters and
learned that she was not at work. The parties dispute whether Plaintiff’s absence on this
occasion was excused. Plaintiff has testified that she had a preexisting agreement with Mr.
Jung to take her son to counseling sessions; Defendant denies that such an agreement
existed. Mr. Jung contacted a human resources employee, Stephanie Curd, about how to
treat Plaintiff’s absence and whether her FMLA paperwork had been approved. Ms. Curd
consulted Defendant’s leave specialist, Mechele Berry, about Plaintiff’s FMLA leave
status. In checking Plaintiff’s FMLA papers, Ms. Berry noticed irregularities that caused

2

Plaintiff contends any absenteeism and performance issues are irrelevant because she
was not terminated for these reasons, according to Defendant’s contemporaneous explanations for
the termination decision.

3

her to conclude Plaintiff had submitted false or forged certification forms. She informed
Ms. Curd of this finding, and Ms. Curd relayed the information to Mr. Jung.
Mr. Jung terminated Plaintiff’s employment on June 7, 2016, for falsification of her
FMLA papers. It later became unclear whether Ms. Berry may have been mistaken and a
miscommunication of information may have caused the papers to appear false or forged.
Defendant contends the facts surrounding the FMLA paperwork support a conclusion that,
regardless whether a falsification actually occurred, Defendant held a sincere, honest belief
that Plaintiff had been dishonest or untruthful when it terminated her employment. Plaintiff
disputes this contention and asserts that this excuse, even if established, is legally
insufficient to avoid liability for interfering with Plaintiff’s exercise of FMLA rights.
During discovery, Defendant acquired evidence – consisting of medical records for
Plaintiff’s son and her deposition testimony – that tends to show her absence from work on
June 6, 2016, was not caused by a legitimate FMLA-protected activity. Plaintiff disputes
that Defendant can show it would have terminated Plaintiff on this basis if it had known of
the evidence on June 7, 2016. Also, as a procedural matter, Plaintiff points out that
Defendant has not pleaded an affirmative defense based on the after-acquired evidence
doctrine, discussed infra.
After her termination, Plaintiff was unable to find a comparable job, but she did not
try using a temporary employment or staffing agency. Plaintiff currently works part-time
as a cafeteria monitor at a public elementary school earning an hourly wage of $8.00.
During her employment by Defendant, she earned an annual salary of $83,433.40 or $40.11
per hour.
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Discussion
A.

FMLA Liability
The Tenth Circuit “has recognized two theories of recovery under § 2615(a): an

entitlement or interference theory arising from § 2615(a)(1), and a retaliation or
discrimination theory arising from § 2615(a)(2).” Metzler v. Fed. Home Loan Bank, 464
F.3d 1164, 1170 (10th Cir. 2006). “These two theories of recovery are separate and distinct
theories that ‘require different showings[,] differ with respect to the burden of proof,’ and
‘differ with respect to the timing of the adverse action.’” Dalpiaz v. Carbon Cty., 760 F.3d
1126, 1131 (10th Cir. 2014) (quoting Campbell v. Gambro Healthcare, Inc., 478 F.3d
1282, 1287 (10th Cir. 2007)).
1.

Interference

The Tenth Circuit has explained FMLA liability under an entitlement or interference
theory as follows:
To establish a claim of FMLA interference under § 2615(a)(1), an
employee 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.” Campbell, 478 F.3d at 1287 (internal
quotation marks and brackets omitted). To satisfy the second element of an
interference claim – adverse action interfering with the right to take FMLA
leave – “the employee must show that she was prevented from taking the full
12 weeks[] of leave guaranteed by the FMLA, denied reinstatement
following leave, or denied initial permission to take leave.” Id. Thus, an
interference claim arises when an adverse employment decision is made
before the employee has been allowed to take FMLA leave or while the
employee is still on FMLA leave. Id.
Dalpiaz, 760 F.3d at 1132 (footnote omitted). Under this theory, “the employer bears the
burden of proof on the third element of an interference claim.” Campbell, 478 F.3d at
5

1287. “The interference or entitlement theory is derived from the FMLA’s creation of
substantive rights. If an employer interferes with the FMLA-created right to medical leave
or to reinstatement following the leave, a deprivation of this right is a violation regardless
of the employer’s intent.” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960
(10th Cir. 2002); see Metzler, 464 F.3d at 1180.
It is undisputed that Plaintiff was entitled to FMLA leave, that she had been
approved to take intermittent leave to care for her children, and that she was in the process
of renewing the prior approval at the time of her termination. Defendant takes inconsistent
positions regarding whether Plaintiff can satisfy the first two elements of an interference
theory under these facts. Defendant assumes in argument regarding its Motion that
Plaintiff can establish these elements (Def.’s Mot. at 9-10), but argues in opposition to
Plaintiff’s Motion that she cannot establish them (Def.’s Resp. Br. at 10-11). 3
Regardless of this inconsistency, however, Defendant’s challenge to this aspect of
Plaintiff’s interference claim is based solely on later-developed facts showing that she may
not have an FMLA-protected reason for her absence from work on June 6, 2016. See Def.’s
Resp. Br. at 11; Def.’s Reply Br. at 3. This is an inappropriate use of after-acquired
evidence, discussed infra, and these facts have no bearing on whether Plaintiff can establish
the requisite elements of her claim. Plaintiff has presented sufficient evidence to show for
summary judgment purposes that she was entitled to FMLA leave and her termination

3

Defendant also adopts the latter position in its reply brief regarding its Motion. See
Def.’s Reply Br. at 3. However, a reply brief is an improper means of raising new matter that was
not argued in the original motion.

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prevented her from taking the full 12 weeks of leave guaranteed by the FMLA. Thus, the
burden of proof regarding the third element shifts to Defendant.
“If the employee can demonstrate that the first two elements of interference are
satisfied, the employer then bears the burden of demonstrating that the adverse decision
was not ‘related to the exercise or attempted exercise of [the employee’s] FMLA rights.’”
Dalpiaz, 760 F.3d at 1132 (quoting Campbell, 478 F.3d at 1288-89) (internal quotation
omitted). Defendant attempts to meet its burden in this case by presenting evidence that
Plaintiff was terminated for a reason unrelated to the fact she was claiming FMLA leave,
that is, she was terminated for falsification of the documents that were required to obtain
such leave. Defendant argues that, regardless whether that decision was mistaken in
hindsight, it is protected from FMLA liability because the decision was based on a sincere
belief that a falsification had occurred.
Defendant relies on Dalpiaz, 760 F.3d at 1134, in which the Tenth Circuit held that
only an indirect causal link existed between an employee’s FMLA leave and her
termination where the employee failed to submit her leave forms in a timely manner,
abused the employer’s sick leave policy, and appeared untruthful about her health
condition. The court of appeals concluded that the employer had “successfully established
that [the employee] would have been dismissed regardless of her request for an FMLA
leave” by showing that it “terminated her because it sincerely, even if mistakenly, believed
she had abused her sick leave and demonstrated significant evidence of untruthfulness.”
Id.

7

As a factual matter, Plaintiff disputes that Defendant can satisfy its burden of proof
on this element of her interference claim. She points to evidence that draws into question
whether Defendant made an honest mistake when it accused her of falsifying documents.
The Court agrees with Plaintiff that there is a genuine dispute of material fact on this issue.
Plaintiff also asserts, however, that the reasoning of Dalpiaz does not apply to the
circumstances of this case or, if it does, the court in Dalpiaz cannot possibly have meant
what it said. Plaintiff argues that allowing an employer who interferes with FMLA leave
to escape liability based on an honest belief that its action was justified by a reason
indirectly related to such leave, re-introduces a question of the employer’s subjective
intent; she contends such a rule would be contrary to binding precedent precluding the use
of a pretext analysis for interference claims. See Pl.’s Resp. Br. at 14-15.
This Court is bound by published decisions of the Tenth Circuit, absent en banc
consideration, “unless an intervening Supreme Court decision is contrary to or invalidates
[the] previous analysis.” Chevron Mining Inc. v. United States, 863 F.3d 1261, 1281 (10th
Cir. 2017). Plaintiff points to no intervening Supreme Court decision or en banc decision
of the Tenth Circuit; she simply seems to argue that Dalpiaz was wrongly decided. See
Pl.’s Reply Br. at 5. Further, the Court is not persuaded by Plaintiff’s attempt to distinguish
Dalpiaz on its facts. If Defendant establishes that Plaintiff was terminated based on an
honest belief that she had falsified and forged her FMLA paperwork, Defendant may be
able to carry its burden to show that its termination decision was not related to Plaintiff’s
exercise or attempted exercise of her FMLA rights.

8

Therefore, because there is a genuine dispute of material facts that precludes a
finding of liability on Plaintiff’s FMLA interference claim, the Court finds that neither
party is entitled to summary judgment on this claim.
2.

Retaliation

“Retaliation claims under the FMLA are subject to the burden shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973).” Metzler, 464 F.3d at 1170.
“To make out a prima facie retaliation claim, [a plaintiff] must show that: ‘(1) she engaged
in a protected activity; (2) [the 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.’” Campbell, 478 F.3d at 1287 (quoting Metzler,
464 F.3d at 1171). With regard to the third element, the Tenth Circuit “ha[s] repeatedly
recognized temporal proximity between protected conduct and termination as relevant
evidence of a causal connection sufficient to justify an inference of retaliatory motive.”
Metzler, 464 F.3d at 1171 (internal quotation omitted). If a prima facie case is established,
“the defendant must offer a legitimate non-retaliatory reason for the employment action,”
and “[t]he plaintiff then bears the ultimate burden of demonstrating that the defendant’s
proffered reason is pretextual.” Metzler, 464 F.3d at 1170; see Campbell, 478 F.3d at 1290.
In this case, Defendant challenges only Plaintiff’s ability to establish the third
element of her prima facie case. The Court finds this challenge lacks merit. Temporal
proximity between an exercise of FMLA rights and a termination of employment is
sufficient to establish a causal connection “if the termination is very closely connected in
time to the protected activity.” See Metzler, 464 F.3d at 1171 (internal quotation and
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emphasis omitted). Plaintiff has presented evidence that she communicated her latest
request for re-approval of FMLA leave to care for her son on May 23, 2016; her termination
occurred on June 6, 2016. This close proximity is sufficient to show a causal connection.
Defendant also relies on its showing of a legitimate, nonretaliatory reason for
Plaintiff’s discharge (her alleged falsification and dishonesty) and argues that Plaintiff
cannot show this reason is pretextual. “A plaintiff can establish pretext by showing the
defendant’s proffered non-discriminatory explanations for its actions are so incoherent,
weak, inconsistent, or contradictory that a rational factfinder could conclude they are
unworthy of belief.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1038-39 (10th Cir. 2011)
(internal quotations and alterations omitted); see Foster v. Mountain Coal Co., 830 F.3d
1178, 1194 (10th Cir. 2016). “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.” Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1166
(10th Cir. 2007) (internal quotation omitted).
In her summary judgment response, Plaintiff has come forward with evidence
showing weaknesses in Defendant’s explanation of its reason for terminating her
employment, and evidence from which a factfinder could reasonably infer that a retaliatory
motive existed. Plaintiff points to facts suggesting that Mr. Jung was frustrated by
Plaintiff’s continued absences and resistant to her use of intermittent FMLA leave. 4

4

Defendant also provides in its summary judgment materials performance-based reasons
that might justify Plaintiff’s termination, and argues that Plaintiff’s “dishonesty, in conjunction
with the history of absenteeism and work performance issues justified Plaintiff’s dismissal.” See

10

Viewing the facts and evidence in the light most favorable to Plaintiff, as required by
Rule 56, the Court finds that Plaintiff has made a minimally sufficient showing to
demonstrate a genuine dispute of material fact regarding pretext.
Therefore, the Court finds that Defendant is not entitled to summary judgment on
Plaintiff’s FMLA retaliation claim.
B.

After-Acquired Evidence Defense
In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), the

Supreme Court held in a wrongful termination case that “after-acquired evidence of
misconduct by the former employee during the time of employment, while not relieving
the employer of liability, may be relevant to the issue of damages.” See Perkins v. Silver
Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1145 (10th Cir. 2009) (emphasis
omitted); see also Ricky v. Mapco, Inc., 50 F.3d 874, 876 (10th Cir. 1995) (“after-acquired
evidence of misconduct cannot act as a complete bar to recovery in an [employment
discrimination] action, but rather only affects the amount of damages an employee may
recover”). 5 The Tenth Circuit has stated that applying McKennon involves “a two step
process”:
First, the employer must establish “that the wrongdoing was of such severity
that the employee in fact would have been terminated on those grounds alone
if the employer had known of it at the time of the discharge.” McKennon,
Def.’s Mot. at 13. This argument seems inconsistent with its position that Plaintiff was terminated
solely for falsifying her leave papers.
5

“Under McKennon, information that an employer learns after it has discharged an
employee is not relevant to the determination of whether an employer violated Title VII because
it necessarily played no role in the actual decision.” Medlock v. Ortho Biotech, Inc., 164 F.3d 545,
554 (10th Cir. 1999).

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513 U.S. at 362-63, 115 S.Ct. 879; see Ricky v. Mapco, Inc., 50 F.3d 874,
876 (10th Cir.1995) (stating the employer must not only show that it was
unaware of the misconduct at the time it terminated the employee, but that
the misconduct was “serious enough to justify discharge” and that it would
have discharged the employee had it known about the misconduct). Second,
and only after an employer has met this initial showing, the after-acquired
evidence may then be considered to limit the damages remedy available to
the wrongfully terminated employee. McKennon, 513 U.S. at 362, 115 S.Ct.
879 (“The beginning point in the trial court's formulation of a remedy should
be calculation of backpay from the date of the unlawful discharge to the date
the new information was discovered.”).
Perkins, 557 F.3d at 1145-46. Defendant seeks the benefit of the defense in this case based
on evidence developed during discovery that shows Plaintiff was not absent from work on
June 6, 2016, to take her son to a counseling session, as she previously claimed.
Plaintiff first resists Defendant’s assertion of the after-acquired evidence defense
in a summary judgment motion because it is an affirmative defense that was not included
in Defendant’s Answer, as required by Fed. R. Civ. P. 8(c). Defendant argues that its
failure to plead the defense should be excused because it necessarily learned of the afteracquired evidence after the Answer was filed and Plaintiff will not be prejudiced by
consideration of the defense because she received notice of it well in advance of trial.
Plaintiff disagrees regarding the alleged lack of prejudice, arguing that Defendant’s delay
in raising the defense has permitted pertinent evidence (such as her recollection of what
she did that afternoon) to be lost.
At least one federal appellate court has held that the after-acquired evidence doctrine
“is an affirmative defense that an employer must plead in its answer or otherwise ensure
that it is a subject of the pretrial order.” Holland v. Gee, 677 F.3d 1047, 1065 (11th Cir.
2012). In Holland, the employer’s failure to plead the defense prevented the district court
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from applying it to vacate an award of back pay. Id.

However, the Tenth Circuit has

declined to adhere strictly to the pleading requirement of Rule 8(c) “when the purpose of
the requirement has been otherwise fulfilled.” See Ahmad v. Furlong, 435 F.3d 1196, 1201
(10th Cir. 2006). “Rather than demanding that the defendant first move to amend the
answer [to plead an affirmative defense], [courts] need only apply the same standards that
govern motions to amend when [they] determine whether the defendant should be
permitted to ‘constructively’ amend the answer by means of the summary-judgment
motion.” Id. at 1202.
Although the parties’ briefs do not squarely address whether a constructive
amendment of Defendant’s Answer should be allowed, the Court finds that Defendant
should not be precluded from asserting the defense. Plaintiff does not argue that Defendant
engaged in undue delay in failing to raise the defense earlier or that Defendant acted with
dilatory motive. See Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009); Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (listing appropriate reasons for denying
leave to amend a pleading under Rule 15(a)(2)).

Plaintiff also does not present a

convincing case of undue prejudice from permitting Defendant to raise the defense in a
timely-filed motion for summary judgment.
Turning to the merits of the after-acquired evidence defense, the Court finds that
genuine disputes of material facts preclude summary judgment in Defendant’s favor on
this defense, as requested by its Motion. To prevail on the defense, Defendant must prove
that Plaintiff engaged in misconduct serious enough to justify discharge and that it would
have discharged Plaintiff on this basis if it had known about the misconduct. Plaintiff has
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responded to Defendant’s Motion by identifying facts and evidence from which reasonable
minds could differ as to whether an unexcused absence by Plaintiff on the afternoon of
June 6, 2016 (after 3:00 p.m.), would have resulted in her immediate termination.
For these reasons, the Court finds that Defendant is not entitled to summary
judgment on its after-acquired evidence defense.
C.

Defendant’s Mitigation Defense
Defendant has asserted as an affirmative defense to Plaintiff’s claim for damages

allegedly caused by the termination of her employment that Plaintiff failed to mitigate her
damages. See Answer [Doc. No. 3] at 4, ¶ 6. It is well settled that this defense requires
Defendant to prove that Plaintiff “did not exercise reasonable efforts to mitigate damages.”
McClure v. Ind. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000). “To satisfy its
burden, ‘the [employer] must establish (1) that the damage suffered by plaintiff could have
been avoided, i.e. that there were suitable positions available which plaintiff could have
discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable
care and diligence in seeking such a position.’” Id. (quoting EEOC v. Sandia Corp., 639
F.2d 600, 627 (10th Cir. 1980)).
By her Motion, Plaintiff challenges Defendant to come forward with facts and
evidence to demonstrate the first element of its defense, that other comparable jobs were
available. Defendant makes no effort to respond to this challenge but, instead, simply
asserts that it may yet obtain evidence of available jobs before the close of discovery and
that such evidence could be used to impeach Plaintiff at trial without violating a duty of
disclosure under Fed. R. Civ. P. 26(a)(3). See Def.’s Resp. Br. [Doc. No. 28] at 18-19.
14

Regarding the issue raised by Plaintiff’s Motion, Defendant presents no facts or
evidence that would establish the availability of suitable positions after Plaintiff’s
termination that she failed to apply for or otherwise pursue. Defendant’s speculative
arguments about what evidence it might discover should it engage further factual
development in this subject area are insufficient to avoid summary judgment. Defendant
does not seek to delay a decision in the manner provided by Rule 56(d), nor has it requested
to supplement its brief to present any evidence it might have obtained during the pendency
of Plaintiff’s Motion. Under the circumstances, the Court finds that Defendant has failed
to satisfy its obligation under Rule 56 to provide support for an issue on which it bears the
burden of proof.
In summary, the Court finds that Defendant has failed to demonstrate the existence
of a genuine dispute of material fact regarding an essential element of its affirmative
defense. Therefore, Plaintiff is entitled to summary judgment in her favor on the defense
of failure to mitigate damages.
Conclusion
For these reasons, the Court finds that neither party is entitled to summary judgment
on any issue related to Plaintiff’s FMLA claim against Defendant, and that Defendant is
not entitled to summary judgment on its after-acquired evidence defense, but that Plaintiff
is entitled to summary judgment on the affirmative defense of failure to mitigate damages.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Partial Summary
Judgment [Doc. No. 25] is GRANTED in part and DENIED in part, as set forth herein, and
Defendant’s Motion for Summary Judgment [Doc. No. 26] is DENIED.
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IT IS SO ORDERED this 29th day of March, 2019.

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