Chauncey v. Life Cycle Engineering Inc et al
Filing
37
ORDER granting in part and denying in part 21 Motion for Summary Judgment; denying 22 Motion for Partial Summary Judgment; adopting in part Report and Recommendations re 31 Report and Recommendation.; denying 32 Motion to Strike Signed by Honorable David C Norton on 9/30/2013.(cahe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
LOIS CHAUNCEY,
)
)
No. 2:12-cv-968-DCN
Plaintiff,
)
)
vs.
)
)
ORDER
LIFE CYCLE ENGINEERING, INC.,
)
ROBERT F. FEI, II, JAMES R. FEI,
)
GREG WALLS, AND MICHAEL E.
)
SCHWARTZ
)
)
Defendants.
)
)
This matter is before the court on Magistrate Judge Bristow Marchant’s Report
and Recommendation (“R&R”) that this court deny plaintiff Lois Chauncey’s
(“Chauncey”) motion for partial summary judgment and grant defendants’ motion for
summary judgment, except as to plaintiff’s FMLA interference claim against defendants
Life Cycle Engineering, Inc. (“Life Cycle”) and Greg Walls (“Walls”). Plaintiff and
defendants each filed written objections to the R&R. For the reasons set forth below, the
court accepts the R&R in part and rejects the R&R in part.
I. BACKGROUND
A.
Procedural History
Chauncey filed this action asserting claims for gender discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e),
et seq.; discrimination and retaliation in violation of the Americans with Disabilities Act
(“ADA”), as amended by the ADA Amendments of 2008 (“ADAAA”), 42 U.S.C. §
12101, et seq.; retaliation in violation of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 215(a)(3), the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
1
623, et seq., and the ADA1; interference with, and retaliation for, exercising her rights
under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq.;
breach of contract; breach of implied covenant of good faith and fair dealing; violation of
the Equal Pay Act (“EPA”), 29 U.S.C. § 206(D), et seq.; and promissory estoppel.2
The defendants moved for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure on January 11, 2013. Chauncey moved for partial summary
judgment as to her FMLA interference claim on the same day.3 Chauncey and
defendants opposed each other’s motions on January 28, 2013. Both plaintiff and
defendants filed reply memoranda on February 7, 2013. Defendants filed a supplemental
memorandum on July 26, 2013. The magistrate judge filed an R&R on July 29, 2013,
recommending that plaintiff’s motion for partial summary judgment be denied and that
defendants’ motion for summary judgment be granted as to all of plaintiff’s claims, with
the exception of the FMLA interference claim against Life Cycle and Walls relating to
Chauncey having to call in weekly and perform work while out on FMLA leave. ECF
No. 31. Defendants filed objections to the R&R on August 12, 2013, and Chauncey filed
objections to the R&R on August 15, 2013. Defendants filed a reply to Chauncey’s
objections on September 3, 2013. Chauncey also moved to strike defendants’
supplemental memorandum as untimely on July 29, 2013. ECF No. 32. These matters
are now ripe for the court’s review.
1
This is a separate claim based on different facts than the ADA retaliation claim set forth in Chauncey’s
second cause of action.
2
Chauncey originally also asserted a defamation claim against Life Cycle and Walls, though she has since
conceded that claim. Pl.’s Opp’n to Summ. J. 35.
3
Plaintiff also asserts an FMLA retaliation claim that is not the subject of her partial motion for summary
judgment.
2
B.
Factual Allegations4
Chauncey initially interviewed with defendant Greg Walls, Life Cycle’s vice
president for human resources, in May 2008 for a position at Life Cycle as an
organizational development specialist in the human resources department. Pl’s Dep.
63:2-64:10, Dec. 14, 2012. During the interview, Walls indicated that he was not
planning to stay at Life Cycle much longer and was looking for someone to take over his
position when he left, which Chauncey got the impression would be in a year or two.
Pl.’s Dep. 63:25-64:10, 73:11-21, 88:6-15. Walls told Chauncey that, while he did not
have the final say on who would replace him when he retired, he did have a lot of
influence. 5 Pl.’s Dep. 77:17-22, 90:23-91:4. Shortly thereafter, Chauncey was hired as a
senior organizational specialist with an annual salary of $90,000. Pl.’s Dep. 62, 69; Pl.’s
Dep. Ex. 1.
Chauncey began working for Life Cycle on July 7, 2008. Pl.’s Dep. Ex. 2. In
January 2009, Chauncey was given a raise to $120,000 per year and her job title was
changed to organization development manager. Pl.’s Dep. 97:25-98:11; Pl.’s Dep. Ex. 4.
In July 2009, in response to an email asking Chauncey to contact two individuals about
the status of a pending project, Chauncey sent an email, copying Walls, stating that she
was at the hospital with her daughter-in-law who was in labor and that she would contact
the individuals later. Pl.’s Dep. Ex. 9. Walls’ response to Chauncey indicated that he did
not realize this individual was Chauncey’s daughter-in-law. Id. In fact, the individual in
question was not Chauncey’s daughter-in-law, but rather the wife of a Citadel cadet who
4
The facts and evidence are considered and discussed in the light most favorable to the party opposing each
motion for summary judgment, respectively. Pittman v. Nelms, 87 F.3d 116, 118 (4th Cir. 1996).
5
Although Walls made repeated references to this plan, by May 2009 he had made it clear that he could not
afford to retire due to the economy, and instead he would remain at Life Cycle. Pl.’s Dep. 102:13-17.
3
Chauncey hosted and considered a “son.” Id. Walls was concerned that Chauncey had
been “less than honest” about the situation. Walls 30(b)(6) Dep. 72:7-12. 6
In October 2009, Walls tried to discuss with Chauncey some negative feedback he
had received regarding the company’s performance review initiative and recruiting
process. Pl.’s Dep. 206:6-23; Walls 30(b)(6) Dep. 9-14. There were concerns regarding
inadequate training and overloading the organization, and Walls wanted to provide
Chauncey with feedback before she rolled out another change with respect to
performance management. Walls 30(b)(6) Dep. 73:7-10, 74:9-14. Chauncey told Walls
that she was sick and walked out of the meeting, stating that she would like to talk about
it later. Pl.’s Dep. 206:24-25, 209:1-14. Walls claimed that Chauncey refused to accept
feedback and was “rude[]” and “disrespectful[]” in leaving the meeting early. Walls
30(b)(6) Dep. 74:16-18. Walls also felt there was friction in the human resources office,
particularly between himself and Chauncey, and that everyone in the department needed
to “work on it together.” Pl.’s Dep. 213:1-16, 217:1-9. Nonetheless, Chauncey received
a $10,000 bonus in October 2009 and a pay raise to $125,000 at the end of 2009. Pl.’s
Dep. 226:14-23. Robert F. Fei, II (“Bob Fei”), president of Life Cycle, provided a
positive reference for Chauncey’s application for an advanced degree at Northeastern
College in November 2009, and Walls was also supportive. Pl.’s Dep. 136:14-137:19.
In December 2009, Chauncey responded to an anonymous employee survey by
commenting that she was working 80-90 hours per week, that she was concerned about
the workload, that the workload was not evenly distributed, and that the amount of work
hours was impacting her physical health. Pl.’s Dep. 236:16-237:15. On January 8, 2010,
6
In addition to the submission of Walls’ individual deposition excerpts, the parties have also submitted
excerpts from his separate deposition as Life Cycle’s 30(b)(6) representative.
4
Walls called Chauncey in for a meeting with himself and defendant Michael Schwartz,
chief financial officer of Life Cycle. Pl.’s Dep. 230:11-13. At the meeting, Walls told
Chauncey that it was clear that she had a problem working for him, offered to help her
leave the company, and told her that he could probably assist her in getting a severance
package. Pl.’s Dep. 230:18-20. Chauncey thought that Walls was acting in retaliation for
her comments on the anonymous employee survey. Pl.’s Dep. 234:9-15. During the
same meeting, Walls communicated his belief that Chauncey had been defensive when he
had tried to talk with her about negative feedback in October 2009, and also shared his
concerns about a performance management communication that went out in December
2009 and a confrontation that had occurred between Chauncey and another employee in
November 2009. Pl.’s Dep. 246:12-247:11. Chauncey understood that Walls was not
happy with her performance, and she blamed the unhappiness on assumptions he was
making about her, her survey responses, and the fact that she was pushing back on some
“illegal” practices. Pl.’s Dep. 247:12-20.
Also on January 8, 2010, Chauncey met with James R. Fei (“Jim Fei”), chief
executive officer of Life Cycle, who felt that she had a problem working with Walls and
that she was upset she did not get Walls’ job when he decided not to retire. Pl.’s Dep.
260:21-261:13. At the end of the meeting, Jim Fei expressed a need for Chauncey and
Walls to try harder to work through their some of their differences. Pl.’s Dep. 263:17-23.
Thereafter, Chauncey and Walls went to lunch to clear the air about some of the
things that were bothering them. Pl.’s Dep. 264:10-19. Later, they developed a plan
known as the “Relationship Guiding Principles” and decided to have weekly one-on-one
meetings where they would go over the principles. Pl.’s Dep. 266:6-12; Pl.’s Dep. Ex.
5
16. Chauncey often felt intimidated and patronized during these meetings. Pl.’s Dep.
266:19-267:5. Chauncey reported her feelings of intimidation to Bob Fei on multiple
occasions. Pl.’s Dep. 267:18-24.
In February 2010, Chauncey received a “2,” indicating “not meeting
expectations,” in interpersonal relationships on her annual performance review, with
Walls observing “[o]pportunity to improve here, especially with relationships on the CSG
leadership team. Encourage you to listen and accept feedback when others approach you
[versus] becoming defensive, deflecting feedback.” Pl.’s Dep. Ex. 17. Despite this, the
review was “satisfactory overall.” Pl.’s Dep. 271:3-272:3; Pl.’s Dep. Ex. 17. On June 2,
2010, Chauncey was issued a performance improvement template with several areas of
concern outlined, specifically presentations by Chauncey that were not well done,
resulting in Wells “losing confidence” in Chauncey. Pl.’s Dep. Ex. 18.
On August 9, 2010, Chauncey submitted a request for intermittent FMLA leave
for cervical stenosis, a serious medical condition, which was approved on August 11,
2010. Pl.’s Dep. Exs. 22, 23; Answer ¶ 27. On or about August 11, 2010, Chauncey
went on full, as opposed to intermittent, leave under the FMLA. Answer ¶ 30. After
going on full-time leave, Chauncey sent Walls ten emails updating her status. Defs.’
Opp’n Ex. 1. On September 21, 2010, Walls responded to an email from Chauncey
stating “[t]hank you for the update; it will be helpful if we can stay in communications on
a weekly basis regarding your status. Hope you get to feeling better.” Pl.’s Mem. in
Supp. of Partial Summ. J. Ex. 3. On September 28, 2010, Walls sent an email to
Chauncey asking her where he could find certain information so that others could work
with that information while she was on leave. Pl.’s Dep. Ex. 21. In making this request,
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Walls specifically indicated that “there is no expectation for you to update or do work,
just send what you have or point folks to where the files are.” Id. On October 6, 2010,
Walls, after leaving a message on Chauncey’s cell phone, called Chauncey at home,
noting in his call log that he had woken her up from pain killers. Pl.’s Supp. Ex. 4. On
October 12, 2010, Walls again talked to Chauncey on the phone, checking on her
condition and requesting again that she send two co-workers information. Id.
On August 13, 2010, four days after Chauncey submitted her request for FMLA
leave, Walls shared with Chauncey her mid-year performance review. Pl.’s Dep. 286:19; Pl.’s Dep. Ex. 20. Walls told Chauncey that he did not like how she was treating him,
Pl.’s Dep. 287:19-20, and rated her as “not meet[ing] expectations” in her relationships
with other employees and being a team advocate. Pl.’s Dep. Ex. 20. Walls also
commented on Chauncey’s “insistence that things go your way and . . . refusal to accept
feedback and take responsibility” and noted a “lack of trust” between her and other
employees, which resulted in “teammates questioning [her] intentions.” Id. Walls noted
that these deficiencies “have been discussed with you on a number of occasions with little
or no improvement,” and that if Chauncey did not immediately meet expectations, there
would be “no other alternative but to terminate [her] employment.” Id. Walls rated
Chauncey as “generally not meeting expectations” overall. Id.
On or about October 1, 2010, Life Cycle’s annual salary increases went into effect
and Chauncey did not receive an annual salary increase for the first time since her
employment with Life Cycle. Answer ¶¶ 33-34. Defendants contend that Chauncey’s
salary was the highest among her peers in the Corporate Services Group and that she did
7
not receive an increase because she was on notice that her performance was not
acceptable. Answer ¶ 34.
Chauncey returned from FMLA leave on November 8, 2010. Pl.’s Dep. 307:1819. While Chauncey had been on leave, Walls sent out an email reminding other
employees of a recruiting team meeting scheduled for November 9, 2010. Pl.’s Dep. Ex.
29. Walls forwarded this email to Chauncey. Id. Chauncey changed the meeting to the
next day, November 10, without getting Walls’ approval because she had a doctor’s
appointment at the time the meeting was originally scheduled. Pl.’s Dep. 310:3-10,
312:17-23. It was Chauncey’s duty to schedule these meetings and she had previously
rescheduled such meetings for various reasons. Pl.’s Dep. 310:3-4, 312:11-14. An email
from Chauncey to Walls acknowledged that the time she rescheduled the meeting for had
been “blocked out” by Walls for vacation, but she said, “I think you’ll be here.” Pl.’s
Dep. Ex. 29. However, Chauncey testified in her deposition that the schedule did not
show a conflict. Pl.’s Dep. 313:12-10. When Chauncey saw Walls in the hallway shortly
after she rescheduled the meeting, she verbally informed him of her actions, the reason,
and that she would be happy to reschedule again if that did not work for his schedule.
Pl.’s Dep. 312:20-313:3. At that time, Walls did not express that he was upset she had
rescheduled the meeting. Pl.’s Dep. 313:4-8.
Walls met with Chauncey on November 10, 2010 and expressed concern over the
fact that she had changed the meeting without checking with him. Pl.’s Dep. 308:12309:4. Chauncey told him that she had always changed meeting times in the past when
there were conflicts. Pl.’s Dep. 309:19-21. Walls also reminded her that the conditions
stated in her mid-year performance review were still in place. Pl.’s Dep. 308:16-20, Ex.
8
28. Walls emphasized in this meeting that “[i]mmediate and lasting improvement is
expected in your performance; specifically in relationships and being a team player.”
Pl.’s Dep. Ex. 28.
On November 16, 2010, a weekly human resources meeting was held. Pl.’s Dep.
314:16-17. At this meeting, Chauncey testified that she stood in the doorway and did not
sit down because her neck was hurting and it helped ease her pain to hold her neck
against the wall. Pl.’s Dep. 314:4-13. She also testified that a chair was not available.
Pl.’s Dep. 314:6. Walls was not happy that Chauncey did not come into the meeting
room and participate in a meaningful way, even when he directed a question to her and
attempted to engage her in the conversation. Walls Dep. 34:12-19. During the meeting,
a proposed team bowling event was discussed. When Walls asked Chauncey if she was
okay with the bowling party, she responded that she was. Pl.’s Dep. 315:25-316:2.
However, she testified that she had previously informed Walls that she was not permitted
to lift anything larger than a milk jug due to a medical condition. Pl.’s Dep. 315:11-13.
Chauncey was concerned that she would not be able to participate in bowling. Pl.’s Dep.
315:21-23.
Thereafter, Chauncey retained legal representation. Pl.’s Mem. in Opp’n to Defs.’
Mot. for Summ. J. 9. In a letter dated November 17, 2010, Chauncey’s attorney informed
Walls that he was representing Chauncey with regard to illegal employment action,
although the letter did not specify what type of illegal employment action had
purportedly occurred. Pl.’s Opp’n Ex. A. Chauncey returned to work full-time from
FMLA leave without restrictions on November 22, 2010. Pl.’s Opp’n 9. On December
1, 2010, Walls and Schwartz called Chauncey in for a meeting where she was officially
9
terminated. Pl.’s Dep. 313:20-24. Walls told Chauncey that he wanted to go through a
list of events that precipitated her termination, Pl.’s Dep. 314:1-2, but Chauncey walked
out before Walls could finish the list. Pl.’s Dep. 314:1-2, 317:1-318:1-10.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In absence of a
timely filed objection to a magistrate judge’s R&R, this court need not conduct a de novo
review, but instead must “only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s
note). The recommendation of the magistrate judge carries no presumptive weight, and
the responsibility to make a final determination rests with this court. Mathews v. Weber,
423 U.S. 261, 270-71 (1976). This court may accept, reject, or modify the report of the
magistrate judge, in whole or in part, or may recommit the matter to him with instructions
for further consideration. 28 U.S.C. § 636(b)(1).
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will
not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that
10
a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary
judgment stage, the court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in his favor. Id. at 255.
III. DISCUSSION
Chauncey objects to the R&R on five grounds: (1) the magistrate judge erred in
concluding that defendants’ refusal to follow its FMLA leave policy did not interfere
with Chauncey’s FMLA rights; (2) the magistrate judge erred in determining that the
defendants issuing their first negative performance review two days after Chauncey
started FMLA leave was not sufficient to create a genuine dispute that defendants
interfered with her FMLA rights; (3) the magistrate judge erred in concluding that
Chauncey’s work authority and job duties were not diminished immediately upon her
return to work from FMLA leave; (4) the magistrate judge erred in concluding that the
FMLA retaliation cause of action should not proceed because there was no evidence of
pretext; and (5) the magistrate judge erred in concluding that there was no genuine
dispute of fact as to whether plaintiff’s discharge was the result of discrimination because
of a disability. Pl.’s Objections 2-3.
Defendants object to the R&R on two grounds: (1) the magistrate judge erred in
concluding that there is sufficient evidence to create a genuine issue of fact as to whether
Life Cycle requiring Chauncey to check in weekly while on leave interfered with her
FMLA leave rights; and (2) the magistrate judge erred in concluding that there is
sufficient evidence to create a genuine issue of fact as to whether Life Cycle requiring
Chauncey to perform work tasks while on leave interfered with her FMLA leave rights.
Defs.’ Objections 1.
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As an initial matter, all of Chauncey’s objections relate to her FMLA and ADA
causes of action. None of her objections are directed to the recommended dismissal of
her claims under Title VII, the FSLA, the ADEA, breach of contract, breach of the duty
of good faith and fair dealing, or promissory estoppel. With respect to her claims under
the ADA, Chauncey does not object to either the recommended dismissal of her ADA
retaliation claim or the recommended dismissal of the individual defendants from her
ADA claim. Because Chauncey has not objected to the R&R on these issues, the court
need not conduct de novo review, but must “only satisfy itself that there is no clear error
on the face of the record in order to accept the magistrate judge’s recommendation.”
Diamond, 416 F.3d at 315. The court finds no clear error on the face of the record.
Therefore, the court adopts the R&R and grants defendants’ motion for summary
judgment as to the following claims: (1) gender discrimination and retaliation under Title
VII; (2) discrimination on the basis of disability under the ADA, with respect to the
individual defendants; (3) retaliation on the basis of disability under the ADA; (4)
retaliation in violation of the FLSA and ADEA; (5) breach of contract; (6) breach of the
implied covenant of good faith and fair dealing; (7) violation of the EPA; and (8)
promissory estoppel.
The court now considers Chauncey’s remaining claims, which are the subject of
the parties’ objections.
A.
ADA Discrimination Claim
Chauncey argues that the magistrate judge erred in concluding that the cause of
action for violation of the ADA should be dismissed because he could “discern no
inference from [the] evidence sufficient to give rise to a genuine issue of fact as to
12
whether Plaintiff’s discharge was the result of discrimination because of disability.” Pl.’s
Objections to R&R 3.
The ADA prohibits discrimination by a covered entity, including a private
employer, against any “qualified individual on the basis of disability” in regard to any
term or condition of employment. 42 U.S.C. § 12112(a). To maintain a claim under the
ADA, a plaintiff must present evidence to show that (1) she is a “qualified” person with a
disability under the ADA, and (2) the defendant is a “covered entity” subject to suit under
that statute. 42 U.S.C. § 12112(a); see Pollard v. High’s of Balt., Inc., 281 F.3d 462, 467
(4th Cir. 2002). For purposes of summary judgment, Life Cycle does not dispute that
Chauncey is a “qualified individual” with a disability7 or that it is subject to suit under the
ADA. Chauncey brings two separate discrimination claims under the ADA: (1) a claim
for wrongful discharge, and (2) a claim for failure to accommodate.
1.
Wrongful Discharge
In general, there are “two avenues” by which a plaintiff may prove wrongful
discharge based on discrimination. See Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277, 285 (4th Cir. 2004) (en banc). The first is to offer “direct or indirect
evidence” of discrimination, under “ordinary principles of proof.” Burns v. AAF–
McQuay, Inc., 96 F.3d 728, 731 (4th Cir.1996) (internal quotations omitted). The second
avenue available is to follow the burden-shifting approach first articulated by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Halperin v.
7
The term “disability” is defined as a physical or mental impairment that substantially limits one or more
major life activities of an individual, a record of such an impairment, or being regarded as having such an
impairment. 42 U.S.C. § 12102(1). “Major life activities” include, but are not limited to, activities such as
caring for oneself, seeing, hearing, walking, standing, communicating, and working. 42 U.S.C. § 12102(2).
Plaintiff alleges that she has a “disabilities” which include intracranial hypertension, pseudo turmor cerebri,
and spinal stenosis with disc compression and herniation. Am. Compl. ¶ 140.
13
Abacus Tech. Corp., 128 F.3d 191, 196-97 (4th Cir. 1997) (“Absent direct evidence of
discrimination, [plaintiff] must satisfy the three-step proof scheme established in
McDonnell Douglas to prevail on his ADA . . . claim[].”), overruled on other grounds by
Baird v. Rose, 192 F.3d 462 (4th Cir. 1999).
To avoid summary judgment when proceeding under ordinary principles of proof,
“the plaintiff must produce direct evidence of a stated purpose to discriminate and/or
[indirect] evidence of sufficient probative force to reflect a genuine issue of material
fact.” Rhoads v. FDIC, 257 F.3d 373, 391 (4th Cir.2001) (internal citations and quotation
marks omitted). The Fourth Circuit has held that the “motivating factor” causation
standard of Title VII is applicable to ADA claims. Baird v. Rose, 192 F.3d 462, 470 (4th
Cir. 1999). Therefore, a plaintiff who “demonstrates that his or her disability played a
motivating role in the employment decision” is “entitled to relief.” Id.
Chauncey asserts that several facts provide direct evidence of discrimination on
the basis of disability. Pl.’s Opp’n 12-15. First, Chauncey argues that Walls’ displeasure
with her refusal to engage in the November 16, 2010 meeting – including standing in the
doorway and not coming to sit down at the table – constitutes direct evidence of disability
discrimination. Id. at 12-13. Plaintiff alleges that Walls was “fully aware of Ms.
Chauncey’s discomfort from sitting due to cervical stenosis. . . .” Id. at 13. However,
there is no evidence that Walls knew that Chauncey’s medical condition was the reason
she did not sit down or enter the room. While Chauncey relies on her testimony that she
informed Walls that she could not lift anything larger than a milk jug, this reliance is
misplaced. Pl.’s Dep. 315:11-13. Chauncey’s lifting restriction is hardly the same thing
14
as a sitting restriction. This evidence does not show that her disability was a motivating
factor in her termination.
Plaintiff next asserts that Walls chastising her for rescheduling a November 9,
2010 meeting because of a doctor’s appointment constitutes direct evidence of
discrimination on the basis of disability. Pl.’s Opp’n 13-14. Contrary to Chauncey’s
assertions, Walls’ admonishment does not evidence unlawful discrimination. Rather,
Walls testified that he was upset because Chauncey rescheduled the meeting “without
respect to other members of the recruiting team” and during a time Walls had blocked out
for vacation. Walls Dep. 34:6-11. There is no evidence that suggests that Walls’
frustration was motivated by the fact that the change was made because of a doctor’s
appointment.
Finally, Chauncey claims that Walls called attention to her disability and
embarrassed her during a November 16, 2010 meeting by asking her about attending a
team bowling activity. Chauncey asserts that this further evidences discrimination on the
basis of her disability. Pl.’s Opp’n 14-15. This argument fails. Even if Chauncey were
unable to bowl due to her medical condition, she admitted that she could nevertheless
have participated in the planned activity. Pl.’s Dep. 316:13-17. Confirming that a
disabled employee can participate in a planned work event may, indeed, be the very
opposite of discrimination on the basis of disability.
In short, Chauncey has failed to produce “direct evidence of a stated purpose to
discriminate.” Rhoads, 257 F.3d at 391. Additionally, plaintiff has not identified – and
the court cannot glean – any indirect evidence of sufficient probative force to raise a
genuine dispute as to whether disability was a motivating factor in Chauncey’s
15
termination. Id.; Baird, 192 F.3d at 470. Since Chauncey fails to establish discrimination
under ordinary principles of proof, the focus shifts to the approach outlined in McDonnell
Douglas, 411 U.S. 792.
The McDonnell Douglas framework establishes a three-step proof scheme under
which the burden of evidentiary production is shifted back and forth between the plaintiff
and defendant; however, the ultimate burden of persuasion never shifts from the plaintiff
to prove intentional unlawful discrimination. See Williams v. Cerberonics, Inc., 871 F.2d
452, 456 n.2 (4th Cir. 1989). Under McDonnell Douglas, the plaintiff must first establish
a “prima facie case of discrimination.” Merritt v. Old Dominion Freight Line, Inc., 601
F.3d 289, 294 (4th Cir. 2010) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252-53 (1981)). Once the plaintiff establishes a prima facie case, the burden of
production shifts to the employer to produce evidence of a legitimate, non-discriminatory
reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802.
Finally, if the defendant meets this burden, the plaintiff must then prove that the
defendant’s proffered reasons “were not its true reasons, but were a pretext for
discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
At the first step of the McDonnell Douglas approach, a plaintiff establishes a
prima facie case of wrongful discharge under the ADA if she demonstrates that (1) she
was within the ADA’s protected class; (2) she was discharged; (3) she was fulfilling her
employer’s legitimate expectations at the time of discharge; and (4) the circumstances of
her discharge raise a reasonable inference of unlawful discrimination. Reynolds v. Am.
Nat’l Red Cross, 701 F.3d 143, 150 (4th Cir. 2012); Haulbrook v. Michelin N. Am., 252
F.3d 696, 702 (4th Cir. 2001). “Evidence of all four of these elements is necessary to
16
survive summary judgment.” Id. As noted, defendants do not contest that Chauncey was
within the ADA’s protected class or that Chauncey was discharged.
Chauncey argues that she has demonstrated the third element of her prima facie
case by showing that her job performance was satisfactory. Pl.’s Opp’n 16-17; see Pl.’s
Dep. 226:14-23 (Chauncey received a $10,000 bonus in October 2009 and a pay raise at
the end of 2009.); Pl.’s Dep. 136:14-137:19 (Bob Fei provided a positive reference for
Chauncey’s application for an advanced degree.); Pl.’s Dep. Ex. 17 (In Chauncey’s
February 2010 annual performance review, despite not meeting expectations in
interpersonal relationships, her performance was “satisfactory overall.”).
However, to establish a prima facie case of wrongful termination under the ADA,
Chauncey must demonstrate that she “was fulfilling h[er] employer’s legitimate
expectations at the time of discharge.” Reynolds, 701 F.3d at 150 (emphasis added).
Chauncey provides no evidence of satisfactory performance in the final six months of her
employment. In fact, the record is replete with evidence of Walls’ dissatisfaction with
Chauncey’s performance. In considering whether a claimant was adequately performing
their job, “[i]t is the perception of the decision maker which is relevant not the selfassessment of the plaintiff.” Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997)
(internal citations omitted), overruled on other grounds by Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002). Walls had concerns about Chauncey being “less than
honest” about the situation involving her “daughter-in-law,” who was not, in fact, her
daughter-in-law. Walls 30(b)(6) Dep. 72:7-12. He also claimed that Chauncey was
“rude[]” and “disrespectful[]” in leaving a meeting early where he was trying to discuss
some negative feedback she had received. Walls 30(b)(6) Dep. 74:16-18. Walls
17
indicated that he felt there was friction in the human resources office, especially between
Chauncey and himself. Pl.’s Dep. 213:1-16, 217:1-9. In a January 8, 2010 meeting,
Walls told Chauncey it was clear that she had a problem working for him and offered to
help her leave the company. Pl.’s Dep. 230:18-20. Chauncey herself understood that
Walls was not happy with her performance. Pl.’s Dep. 247:12-20. In June 2010, Walls
began “losing confidence” in Chauncey as a result of presentations that she had not done
well. Pl.’s Dep. Ex. 18. In an August 2010 mid-year review, Walls noted that Chauncey
continued to refuse to accept feedback and that there was a “lack of trust” between her
and other employees. Pl.’s Dep. Ex. 20. Walls gave Chauncey an overall rating of
“generally not meeting expectations,” and informed her that if she did not immediately
meet expectations, there would be “no other alternative but to terminate [her]
employment.” Id. In the weeks leading up to her termination, Chauncey rescheduled a
meeting for a time Walls had blocked out for vacation without approval, Pl.’s Dep.
310:3-10, and did not participate in a human resources meeting. Walls Dep. 34.
The evidence shows that, beginning in January 2010, Walls had concerns with
Chauncey’s performance, and that those concerns escalated until the time of her
termination. Even considered in the light most favorable to Chauncey, this evidence does
not create a genuine issue as to whether she was “fulfilling h[er] employer’s legitimate
expectations at the time of discharge.” Reynolds, 701 F.3d at 150 (emphasis added).
Therefore, plaintiff has failed to establish a prima facie case of wrongful discharge under
the ADA.
18
2.
Failure to Make Reasonable Accommodations
Under the ADA, unlawful discrimination on the basis of disability can also
include the failure to make “reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an applicant or
employee . . . .” 42 U.S. C. § 12112(b)(5)(A). Chauncey asserts an ADA discrimination
claim based on Life Cycle’s failure to reasonably accommodate her disability. Am.
Compl. ¶ 141. In her few fleeting references to this claim, Chauncey appears to allege
that Life Cycle failed to reasonably accommodate her disability because the company did
not let her reschedule a meeting that was scheduled for the same time as a doctor’s
appointment. See Pl.’s Opp’n 11, 14 n.9; Pl.’s Objections 26, 28.
In order for a plaintiff to establish a prima facie case against her employer for
failure to accommodate under the ADA, the plaintiff must show: “(1) that [she] was an
individual who had a disability within the meaning of the statute; (2) that the employer
had notice of [her] disability; (3) that with reasonable accommodation [she] could
perform the essential functions of the position; and (4) that the employer refused to make
such accommodations.” Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013)
(internal quotes omitted). Even viewed in the light most favorable to Chauncey, there is
insufficient evidence to raise a genuine dispute as to whether Life Cycle refused to make
an accommodation. Chauncey claims she was “entitled to a reasonable accommodation
in the form of a few hours off from work to attend a critical doctor’s appointment on the
afternoon of November 10, 2010.”8 Pl.’s Opp’n 14 n.9. Neither the complaint nor the
record show that Chauncey was unable to reschedule the meeting or that she missed her
8
The court believes that Chauncey likely means November 9, 2010, as that was the date on which the
meeting at issue was originally scheduled. See Pl.’s Opp’n 14; Pl.’s Dep. Ex. 29.
19
doctor’s appointment. An employer expressing frustration over the approach used to
reschedule a meeting is not the same as refusing to make an accommodation. Since there
is no evidence that defendants denied the accommodation she sought, Chauncey has
failed to show a prima facie case of discrimination based on the denial of a reasonable
accommodation.
Chauncey has failed to make a prima facie showing of discrimination under the
ADA based on either wrongful discharge or failure to accommodate. Therefore, the court
adopts the R&R and grants Life Cycle’s motion for summary judgment as to Chauncey’s
ADA discrimination claim.
B.
FMLA Claims
Chauncey alleges the magistrate judge erred both in concluding that several
actions by defendants did not interfere with her FMLA rights and in determining that the
FMLA retaliation cause of action should not proceed because there was no evidence of
pretext. Pl.’s Objections 2-3. Defendants allege the magistrate judge erred in concluding
that there is sufficient evidence to create a genuine issue of fact as to whether Life Cycle
requiring Chauncey to check in weekly and perform work tasks while on leave interfered
with her FMLA rights. Defs.’ Objections 1.
The FMLA provides that covered employees are entitled to a total of twelve work
weeks of leave during any twelve month period for family- and health-related matters, as
well as a right to be restored to a position of employment equivalent to the one held by
the employee when the leave commenced. 29 U.S.C. §§ 2612, 2614. The FMLA entitles
employees to leave for, among other reasons, a serious health condition that renders the
employee unable to perform employment functions. See 29 U.S.C. § 2612(a)(1)(D).
20
Chauncey brings two separate claims under the FMLA: (1) a claim for interference with
her rights, and (2) a claim for retaliation based on the exercise of those rights.
1.
Interference9
To make out a prima facie case of interference under the FMLA, an employee
must establish that (1) she is an eligible employee; (2) her employer was covered by the
FMLA; (3) she was entitled to leave under the FMLA; (4) she gave her employer
adequate notice of her intention to take leave; and (5) the employer denied her FMLA
rights to which she was entitled. Car v. Mike Reichenbach Ford Lincoln, Inc., No. 4:11cv-2240, 2013 WL 1282105, at *7 (D.S.C. Mar. 26, 2013). Additionally, a plaintiff must
show she has been prejudiced by the violation. Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 89 (2002); Moticka v. Weck Closure Sys., 183 F. App'x 343, 347 (4th Cir.
2006) (“Before liability will be imposed on an employer for violating an employee's
rights under the FMLA, the employee must show that she was prejudiced by the
violation.”). It is undisputed that Chauncey satisfies the first four elements of her
interference claim. See Defs.’ Objections 3.
The FMLA regulations issued by the Department of Labor state that the terms
“interfering with” an employee’s FMLA rights include not only refusing to authorize
FMLA leave, but violating the FMLA or its regulations, discouraging an employee from
using such leave, and avoiding responsibilities under the FMLA. 29 C.F.R. § 825.220(b).
[P]rejudice can be proven by showing that the employee lost compensation or benefits
“by reason of the violation,” 29 U.S.C. § 2617(a)(1)(A)(i)(I); sustained other monetary
losses “as a direct result of the violation,” § 2617(a)(1)(A)(i)(II); or suffered some loss in
9
Both plaintiff and defendants have moved for summary judgment on Chauncey’s FMLA interference
claim.
21
employment status remediable through “appropriate” equitable relief, such as
employment, reinstatement, or promotion, § 2617(a)(1)(B). Anderson v. Discovery
Commc'ns, LLC, 517 F. App'x 190, 198 (4th Cir. 2013).
Chauncey argues that several actions taken by Life Cycle constitute interference
with her FMLA rights: (1) requiring her to check-in on a weekly basis while on leave;
(2) requiring her to do work while on leave; (3) placing more stringent FMLA
requirements on her than required by the company’s FMLA handbook; (4) giving her a
negative performance review two days after starting FMLA leave; (5) failing to give her a
raise or salary increase while on leave; and (6) giving her diminished authority and duties
upon returning from leave.
a.
Weekly Update Requirement
Chauncey first argues that Life Cycle’s requirement that she check in weekly
regarding her status interfered with her FMLA rights. A check-in requirement in and of
itself does not violate the FMLA; in fact, the regulations expressly contemplate that
employers may require employees to periodically report their status. 29 C.F.R. §
825.311(a) (“An employer may require an employee on FMLA leave to report
periodically on the employee’s status and intent to return to work.”). Therefore,
Chauncey must show that sending weekly updates interfered with her FMLA rights by
discouraging her from taking leave. See 29 C.F.R. § 825.220(b).
Chauncey went on full-time FMLA leave on August 19, 2010. Answer ¶ 30. In
an email from Walls to Chauncey on September 21, 2010, Walls told her that “it will be
helpful if we can stay in communications on a weekly basis regarding your status.” Pl.’s
Supp. Ex. 3; see also Pl.’s Dep. 291:16-20. Between going on full-time leave and Walls’
22
email requesting weekly updates, a time period of just over a month, Chauncey sent
Walls ten emails updating her status. Defs.’ Objections Ex. 1. In an August 29, 2010
email, Chauncey indicated that she would likely be out until at least mid-September, but
that she could send daily updates if Walls would like. Id. Even after indicating that she
would be on leave for an extended period, and with no suggestion that Walls requested
daily reports, Chauncey voluntarily sent the company five more updates. Id.
Defendants assert that Walls, by instituting weekly updates, was trying to reduce
the amount of emails Chauncey was sending. Defs.’ Objections 3. According to Walls,
“[Chauncey] had left me just numerous voice messages, e-mails, and it got to the point
where it was just too much.” Walls Dep. 48:1-3. So Walls asked Chauncey to keep him
informed on a weekly basis in “an attempt to reduce the volume of communications . . . .”
Walls Dep. 48:3-6. Regardless of Walls’ intentions, no reasonable jury could find that
Walls asking Chauncey to do something she was already doing with regularity would
interfere with her FMLA leave. Chauncey’s reliance on Terwilliger v. Howard Mem’l
Hosp., 770 F. Supp. 2d 980 (W.D. Ark 2001), for the proposition that requiring
employees to initiate contact with the employer is an unreasonable interference with an
employee’s right to FMLA leave is misplaced. See Pl.’s Mot. for Partial Summ. J. 10.
Crucial to the holding in Terwilliger were weekly calls by the employer pressuring the
employee to return to work. 770 F. Supp. 2d at 981. There is no evidence here that
Walls or other Life Cycle employees repeatedly pressured Chauncey to return to work.
Requiring an employee on leave to provide reports is consistent with the FMLA
regulations, and without more, does not give rise to a claim for interference. To the
23
extent Chauncey’s interference claim is based on defendants’ request that she report her
status to them weekly, defendants are entitled to summary judgment.
b.
Contacting Chauncey and Requesting Work
Chauncey next argues that defendants interfered with her FMLA rights by
contacting her and asking her to do work. While the mere fact that an employer
communicates with an employee during FMLA leave is not per se evidence of
interference, see Dodgens v. Kent Mtf. Co., 955 F. Supp. 560, 564 (D.S.C. 1997),
“calling [the employee] can be probative of [interference] when the [employee] is asked
to continue working.” Sullivan v. Cato Corp., 2006 WL 644469 (D.S.C. 2006).
Generally, requiring an employee to perform work during FMLA leave constitutes
interference with that employee’s FMLA rights. See, e.g., Arban v. W. Pub. Corp., 345
F.3d 390 (6th Cir. 2003); Franks v. Indian Rivers Mental Health, 2012 WL 4736444
(N.D. Ala. Sept. 30, 2012). However, “[f]ielding occasional calls about one's job while
on leave is a professional courtesy that does not abrogate or interfere with the exercise of
an employee's FMLA rights.” Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y.
2009) (holding that there was no interference where a temporary replacement called the
plaintiff, who was out on FMLA leave, once or twice about where to find things on the
computer).
On September 28, 2010, Walls sent an email to Chauncey asking her where he
could find certain information so that others could work with that information while she
was on leave. Pl.’s Dep. Ex. 21. In making this request, Walls specifically indicated that
“there is no expectation for you to update or do work, just send what you have or point
24
folks to where the files are.” Id. Walls requested the information again during a phone
conversation on October 12, 2010. Pl.’s Mot. for Partial Summ. J. Ex. 4.
Chauncey told one of the employees who the information was intended for “that it
wasn’t as simple as sending files because [you] wouldn’t understand where the data was
because of the various places that they were put in the files” and “it would be absolutely
no use of you. . . .” Pl.’s Dep. 293:3-9. Chauncey then told the employee to “tell [Walls]
that . . . I’ll just put it together and send it to you.” Pl.’s Dep. 293:14-15. However,
Chauncey did not communicate with Walls that further work was needed. Pl.’s Dep.
293:16-25. To the extent that Chauncey performed any work while on leave, that choice
was completely voluntary.
No reasonable jury could find that defendants interfered with Chauncey's right to
FMLA leave by asking her to send information to other employees. Walls’ limited
request, which emphasized that no additional work was to be done, does not give rise to a
claim for interference. To the extent Chauncey’s interference claim is based on Walls’
request that she send information to other employees, defendants are entitled to summary
judgment.
c.
Application of Life Cycle’s FMLA Handbook to
Chauncey
Chauncey argues that the fact that defendants did not follow Life Cycle’s FMLA
check-in policy, and instead required her to check in more frequently, constitutes
interference with her FMLA rights. As discussed above, “[a]n employer may require an
employee on FMLA leave to report periodically on the employee’s status and intent to
return to work.” 29 C.F.R. § 825.311(a). However, such a policy “may not be
25
discriminatory and must take into account all of the relevant facts and circumstances
related to the individual employee’s leave situation.” Id.
Life Cycle’s company policy requires that an employee on leave “contact his/her
supervisor or department head every 30 days” concerning her medical status and
intention to return to work. Pl.’s Mot. for Partial Summ. J. Ex. 8. Therefore, Chauncey
argues that Life Cycle disregarded its own FMLA policy, violating 29 C.F.R. §
825.311(a), by requiring her to advise Walls of her status on a weekly basis. Pl.’s Mot.
for Partial Summ. J. 13. Violations of the FMLA or its regulations can be considered
interference under 29 C.F.R. § 825.220(b).
Assuming that interference has been shown, Chauncey must still show prejudice.
See Ragsdale, 535 U.S. at 89 (“To prevail under [the FMLA], an employee must prove,
as a threshold matter, that the employer violated § 2615 by interfering with . . . her
exercise of FMLA rights. Even then, [the FMLA] provides no relief unless the employee
has been prejudiced by the violation. . . .”). However, Chauncey has not offered evidence
of any prejudice suffered because she was subjected to a more frequent call-in
requirement than company policy required. Chauncey has not shown “any wages, salary,
employment benefits, or other compensation denied or lost . . .by reason of the violation.”
29 U.S.C. § 2617(a)(1)(A)(i)(I) (emphasis added). Likewise, Chauncey has not shown
“any actual monetary losses sustained . . . as a direct result of the violation,” Id. §
2617(a)(1)(A)(i)(II) (emphasis added), or equitable relief that may be appropriate, Id. §
2617(a)(1)(B). While Chauncey claims that she is owed back pay as damages, Pl.’s Mot.
for Partial Summ. J. 14, there is no indication that those damages were suffered by reason
26
of, or as a direct result of, Life Cycle not applying its company-wide FMLA policy to
Chauncey.
Because Chauncey has failed to show prejudice, to the extent Chauncey’s
interference claim is based on Life Cycle requiring her to update her status more than
often than called for in the company’s FMLA policy, defendants are entitled to summary
judgment.
d.
No bonus or Salary Increase
Chauncey argues that not receiving a salary increase or a bonus, as she had in
years past, constitutes interference with her FMLA rights. An employee who takes leave
is entitled, on return from such leave, “to be restored . . . to the position of employment
held by the employee when the leave commenced” or “an equivalent position with
equivalent benefits, pay, and other terms and conditions of employment.” 29 U.S.C.
2614(a)(1). An employee is “entitled to any unconditional pay increases which may have
occurred during the FMLA period, such as cost of living increases.” 29 C.F.R. §
825.215(c)(1). However, pay increases conditioned upon seniority, length of service, or
work performed must be granted in accordance with the employer’s policy with respect
to employees on an equivalent leave status for a reason that does not qualify as FMLA
leave. Id. Equivalent pay also includes “any bonus . . . , whether it is discretionary or
non-discretionary, made to employees consistent with the provisions [for salary
increases].” Id. § 825.215(c)(2).
There is relatively little evidence regarding either Life Cycle’s bonus or its salary
increase policies. Defendants assert that Chauncey did not receive a salary increase
because she was on notice that her performance was not acceptable and her annual salary
27
was already the highest among her peers. Answer ¶ 34. Therefore salary increases seem
to be at least partially performance-driven. Chauncey admits that her bonus arrangement
is based on “performance and other factors,” Pl.’s Dep. 28:14-19, but the evidence does
not clarify what those other factors are.
Genuine issues remain about the exact nature of Life Cycle’s salary increase and
bonus policies, especially as they applied to Chauncey, as well as whether denying
Chauncey either resulted in her being returned to a position of equivalent pay or
interfered with her FMLA rights by discouraging her from taking leave. Because of these
genuine issues, to the extent that Chauncey bases her FMLA interference claim on not
receiving a bonus or salary increase while on leave, summary judgment is inappropriate.
e.
Negative Performance Review
Chauncey argues that receiving a negative performance review on August 13,
2010, four days after she requested FMLA leave and two days after she was placed on
leave, interfered with her FMLA rights. Chauncey has presented no evidence to show
that receiving the negative review interfered with her right to take FMLA leave. As
discussed at length above, Walls had been dissatisfied with Chauncey’s job performance
for quite some time before issuing the performance review. Moreover, there is no
evidence that the performance review discouraged Chauncey from taking leave. Because
Chauncey has failed to show a genuine issue as to whether her negative performance
review interfered with her FMLA rights, defendants are entitled to summary judgment to
the extent Chauncey’s interference claim is based on her negative performance review.
28
f.
Diminished Authority and Duties
Chauncey argues that her diminished authority and duties, based on her inability
to reschedule recruiting meetings, upon her return from leave interfered with her FMLA
rights. An employee who takes leave is entitled, on return from such leave, “to be
restored . . . to the position of employment held by the employee when the leave
commenced” or “an equivalent position with equivalent benefits, pay, and other terms
and conditions of employment.” 29 U.S.C. 2614(a)(1). An equivalent position must
have “substantially similar duties, conditions, and responsibilities as the employee’s
original position.” 29 C.F.R. 825.215(e).
When Chauncey returned from work, she attempted to reschedule a recruiting
meeting originally scheduled for November 9, 2010, because she a doctor’s appointment
scheduled at the same time. Pl.’s Dep. 310:1-10. Walls admitted that Chauncey had the
authority to reschedule the meetings before taking leave, but that since she was “just
returning” he “expected” that she would consult him before rescheduling the meeting.
Walls Dep. 27:15-29:15. Walls told Chauncey after she got back that she should not
have rescheduled the meeting. Pl.’s Dep. 309:18-21.
Whether Chauncey was restored to the position of employment held when leave
commenced or an equivalent position, and whether Chauncey having to consult Walls
before rescheduling meetings constituted a “substantially similar duty,” are subject to
genuine dispute. To the extent Chauncey relies on her diminished duties upon return
from leave, a reasonable jury could find for either side, and therefore summary judgment
is inappropriate.
29
As to Chauncey’s FMLA interference claim, the court accepts the R&R in part
and rejects the R&R in part. The court denies plaintiff’s partial motion for summary
judgment and grants defendants’ motion for summary judgment except to the extent
plaintiff’s claim relies on her diminished duties upon return from leave and not receiving
a salary increase or bonus while on leave.
2.
Retaliation
The FMLA makes it “unlawful for any employer to discharge or in any other
manner discriminate against any individual for opposing any practice made unlawful by
this subchapter.” 29 U.S.C. § 2615(a)(2). FMLA retaliation claims are analyzed under
the burden-shifting framework of McDonnell Douglas. Yashenko v. Harrah’s NC Casino
Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006). A plaintiff must first make a prima
facie showing that she (1) “engaged in protected activity”; (2) that the “employer took
adverse action against [her]”; and (3) that “the adverse action was causally connected to
the plaintiff’s protected activity.” Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th
Cir. 1998). An adverse employment action is one that “adversely affect[s] the terms,
conditions, or benefits of the plaintiff's employment.” Holland v. Washington Homes,
Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation marks omitted). If the plaintiff
puts forth sufficient evidence to establish a prima facie case of retaliation and the
employer then offers a “non-discriminatory explanation” for the plaintiff’s termination,
the plaintiff bears the burden of establishing that the employer’s proffered explanation is
“pretext for FMLA retaliation.” Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502 (4th
Cir. 2001).
30
It is undisputed that Chauncey engaged in a protected activity by taking FMLA
leave.10 It is also undisputed that Chauncey’s failure to receive a salary increase in
October 2010 and her ultimate termination qualify as adverse employment actions.
Chauncey alleges that her August 2010 mid-year performance evaluation was also an
adverse employment action. Pl.’s Opp’n 23. A negative written evaluation, by itself,
generally does not constitute an adverse employment action. See Thompson v. Potomac
Elec. Power Co., 312 F.3d 645, 652 (4th Cir. 2002) (citing Spears v. Mo. Dep’t of Corr.
& Human Res., 210 F.3d 850 (8th Cir. 2000)). However, a negative performance
evaluation may be an adverse employment event when plaintiff can “point to a tangible
employment action that she alleges she suffered, or is in jeopardy of suffering, because of
the downgraded evaluation.” White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th
Cir. 2008). Because Chauncey’s mid-year performance review threatened termination if
she did not immediately meet expectations, Pl.’s Dep. Ex. 20, the court will treat this
evaluation as an adverse employment action.
To meet the third element of her prima facie case, the adverse actions must be
causally connected to the protected activity. Chauncey offers evidence of the close
temporal proximity of the protected activities and the adverse actions. She notes that the
negative mid-year performance review was issued “[a] mere three days” after she had
applied for FMLA leave. Pl.’s Opp’n 23. Additionally, Chauncey was terminated
fourteen days after her attorney sent a letter to Life Cycle alleging that she had been
subject to illegal employment action and soon after coming back from FMLA leave. Pl.’s
Opp’n 23-24. While evidence as to the closeness in time of the protected activity and
10
Chauncey’s attorney writing to Life Cycle was potentially a protected activity under FMLA, although
counsel did not specify what discriminatory acts he was alleging. See Pl.’s Opp’n Ex. A. The court will
assume for the purposes of the present motion that the letter was a protected activity.
31
adverse employment action “far from conclusively establishes the requisite causal
connection, it certainly satisfies the less onerous burden of making a prima facie case of
causality.” Yashenko, 446 F.3d at 551 (quoting Williams v. Cerberonics, Inc., 871 F.2d
452, 457 (4th Cir. 1989)). Therefore, Chauncey has made a prima facie showing of
retaliation.
The burden then shifts to defendants to offer a non-discriminatory explanation for
their actions. As discussed at length above, there is extensive evidence documenting
Walls’ dissatisfaction with Chauncey’s job performance. The adverse employment
actions taken were the culmination of job performance problems dating back over a year,
to October 2009. Therefore, defendants have met their burden of production, and the
burden shifts back to Chauncey to establish that the proffered reasons were pretext for
FMLA retaliation. See Glunt v. GES Exposition Servs., Inc., 123 F. Supp. 2d 847, 872
(D. Md. 2000) (“[P]oor job performance qualifies as a legitimate nondiscriminatory
reason to demote an employee.”).
“[T]he plaintiff can prove pretext by showing that the [defendant's] explanation is
unworthy of credence or by offering other forms of circumstantial evidence sufficiently
probative of [retaliation].” Price v. Thompson, 380 F.3d 209, 212 (4th Cir.2004) (internal
quotation marks omitted). While closeness in time “far from conclusively establishes the
requisite causal connection,” Yashenko, 446 F.3d at 551, “the trier of fact may still
consider the evidence establishing the plaintiff's prima facie case and inferences properly
drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.”
Reeves, 530 U.S. at 143 (quoting Burdine, 450 US at 255 n.10 (1981)). In addition to
close temporal proximity, Chauncey notes her previous satisfactory performance reviews
32
as well as evidence discrediting defendants’ two primary reasons for her termination.11
Because the facts are such that a “reasonable jury could return a verdict for [Chauncey],”
Anderson, 477 U.S. at 248, Chauncey has produced sufficient evidence to give rise to a
genuine issue as to whether defendants’ non-discriminatory explanation is pretextual.
Therefore the court rejects the R&R and denies defendants’ motion to dismiss
Chauncey’s FMLA retaliation claim.
IV. CONCLUSION
Based on the foregoing, the court REJECTS the magistrate judge’s R&R
in part and ACCEPTS the magistrate judge’s R&R in part. The court DENIES
plaintiff’s motion for partial summary judgment. The court GRANTS defendants’
motion for summary judgment as to the following claims: (1) gender discrimination and
retaliation under Title VII; (2) discrimination and retaliation on the basis of disability
under the ADA; (3) retaliation in violation of the FLSA and ADEA; (4) breach of
contract; (5) breach of the implied covenant of good faith and fair dealing; (6) violation
of the EPA; and (7) promissory estoppel. The court GRANTS defendants’ motion for
summary judgment on plaintiff’s FMLA interference claim, except that the court
DENIES summary judgment on this claim to the extent it relates to plaintiff’s diminished
duties upon return from leave and not receiving a salary increase or bonus while on leave.
The court DENIES defendants’ motion for summary judgment as to plaintiff’s FMLA
retaliation claim. Plaintiff’s motion to strike is DENIED as moot because the court has
disposed of the substantive motions.
11
Chauncey refers to the two grounds mentioned by Walls for her termination, rescheduling a meeting and
failure to sit and participate at another meeting, Pl.’s Dep. 314:1-8, apparently inferring that those grounds
alone were not sufficient for termination. Pl.’s Objections 25.
33
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 30, 2013
Charleston, South Carolina
34
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