Snipes v. The Southwest Virginia Regional Jail Authority

Filing 31

OPINION and ORDER denying 23 Motion for Summary Judgment. Signed by Judge James P. Jones on 3/11/19. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CHRISTOPHER EARL SNIPES,
Plaintiff,
v.
THE SOUTHWEST VIRGINIA
REGIONAL JAIL AUTHORITY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 1:18CV00025
OPINION AND ORDER
By: James P. Jones
United States District Judge

Rodney B. Rowlett, III, Shine & Rowlett, PLLC, Kingsport, Tennessee, for
Plaintiff; Joseph A. Piasta, Johnson, Ayers & Matthews, P.L.C., Roanoke,
Virginia, for Defendant.
In this action arising out of the Family and Medical Leave Act (“FMLA”),
plaintiff Christopher Earl Snipes alleges that defendant The Southwest Virginia
Regional Jail Authority (“Jail Authority” or “the Authority”) violated the FMLA
by terminating his employment in retaliation for his use of FMLA-protected leave.
The Jail Authority has moved for summary judgment, arguing that it terminated
Snipes’ employment for a legitimate, nondiscriminatory reason and Snipes cannot
show that this reason was pretext for discrimination based on his use of FMLA
leave.

For the reasons that follow, I will deny the defendant’s Motion for

Summary Judgment.

I.
The following facts taken from the summary judgment record are either
undisputed or, where disputed, are presented in the light most favorable to the
plaintiff as the nonmoving party.
The Jail Authority operates four jails in Southwest Virginia. The Authority
organizes its correctional officers in a paramilitary structure — they begin as
officers and may progress in rank to corporal, sergeant, lieutenant, captain, and
major. Officers directly supervise the inmate population and the jail’s day-to-day
operations.

To prepare to take on a higher rank, officers may apply to be

corporals, who are given additional responsibilities for disciplining inmates and
training new officers. Sergeants supervise the officers on each shift and handle
more serious inmate disciplinary processes. Lieutenants are shift commanders and
are ultimately responsible for the functioning of each shift. Lieutenants also have
administrative responsibilities, including determining the appropriate staffing for
each shift, scheduling employees’ time off, and documenting and investigating any
accidents that occur during the shifts. Captains supervise the lieutenants, and
majors oversee all of the staff.
Discipline of correctional officers is approached on a case-by-case basis and
can be tailored to the rank of the officer. Supervisors may give employees verbal
warnings, and the Authority’s employee handbook provides for formal disciplinary
-2-

actions, which include written counseling, written reprimands, suspension with or
without pay, and termination of employment. Termination may occur after an
employee commits multiple minor violations of the Authority’s policies or because
of an employee’s poor job performance. Supervisory personnel are usually not
demoted when issues arise; rather, they “move up and out.” Mot. Summ. J. Ex. 5,
Kilgore Dep. 66:25, ECF No. 23-5.
Snipes began working for the Jail Authority as an officer in 2005, and he
became a corporal in 2007.

In 2010, he was promoted to sergeant, and in

December 2012, he was promoted to lieutenant. During his time as a lieutenant, he
oversaw the jail’s night shift.
In 2015, Snipes’ wife developed a medical condition that was ultimately
diagnosed as Cacchi-Ricci disease. As a result, she required inpatient care and
experienced periods of incapacity. In October 2015, she underwent a medical
procedure, and Snipes notified the Authority that he needed to take FMLA leave to
care for her. The Authority approved his FMLA leave request, allowing him to
take leave intermittently per doctor’s orders. On March 14, 2016, Snipes’ wife
underwent another medical procedure, which her doctor determined would leave
her incapacitated from March 14, 2016, to April 13, 2016. After both occasions,
Snipes submitted to the Authority certifications from the doctor describing his
wife’s health issues and the care she required. Snipes is uncertain of the exact
-3-

dates on which he took FMLA leave, but he did so intermittently between October
2015 and March or April 2016.
The Authority uses a form to notify employees of their eligibility for FMLA
leave and their rights and responsibilities when taking this leave. Snipes’ form
stated that, among other things, he was required to provide to the Authority every
thirty days reports about his leave status and intent to return to work. The form
also noted that he had a right under the FMLA to up to twelve weeks of leave. The
Authority’s Human Resources Manager, Georgia Fitzgerald, testified in her
deposition that employees using FMLA leave may be disciplined if they do not
provide the Authority with the required status updates. Moreover, employees may
be terminated if they exceed the twelve weeks of permitted leave.
In March 2016, Larry Kilgore, then a captain supervising Snipes, met with
Fitzgerald regarding Snipes’ leave. In a memorandum that Kilgore prepared on
March 29, 2016, to document his conversations with Fitzgerald and Snipes, 1
Kilgore noted that he had told Snipes that he was out of compliance with the
Authority’s FMLA reporting requirements and the Authority would terminate him

1

“[H]earsay evidence, which is inadmissible at trial, cannot be considered on a
motion for summary judgment.” Md. Highways Contractors Ass’n v. Md., 933 F.2d
1246, 1251 (4th Cir. 1991). In his deposition, Kilgore stated that he prepared this
memorandum on or about March 29, 2016, but he could not fully remember the meeting
at the time of his deposition. Accordingly, I find the memorandum admissible as an
exception against hearsay pursuant to Federal Rule of Evidence 803(5) as Kilgore’s
recorded recollection.
-4-

if he exceeded his twelve weeks of leave and did not communicate with Human
Resources about his leave status. Snipes returned to work sometime after this
conversation.
On April 26, 2016, Snipes missed a scheduled supervisory meeting that
Kilgore and Dwayne Lockhart, then a major, had expected him to attend. Shortly
after the meeting was supposed to have begun, Lockhart called Snipes at home,
and Snipes said that he had forgotten about the meeting and would try to arrive in
time for the remainder of it. Lockhart told Snipes that they were going to begin
without him and not to rush to arrive. Snipes came to the jail that day for his shift,
which was after the supervisory meeting, but he did not arrive in time for any of
the meeting.
Also on April 26, Snipes received a written performance appraisal from the
Authority, which described his leadership and staff relations as commendable, the
second highest rating. It also described his ability to interact with others and his
teamwork skills as distinguished, the highest rating. Snipes’ overall performance
was characterized as competent, the median rating. According to the appraisal
form, competent performance “clearly meets the requirements of the position” and
“reflects a solid level of performance,” and “[c]ontinued performance at this level
would be perfectly acceptable.”

Mot. Summ. J. Ex. 6, Kilgore Dep. Ex. 2 at 2,

ECF No. 23-6. The appraisal also established three goals for Snipes to meet by the
-5-

end of the year, including spending more time in the back of the jail rather than in
his office, and encouraging teamwork and building morale during his shifts.
On May 10, a video recording showed Snipes using inappropriate language
with an inmate. Kilgore later referenced this incident in a supervisory meeting,
stating, “Let’s make sure we’re doing the right thing. . . . You know what I’m
talking about, Snipes.” Mot. Summ. J. Ex. 1, Snipes Dep. 40:5–7, ECF No. 23-1.
On May 24, Snipes met with Kilgore and Tony Mullins, an administrative
lieutenant. Snipes told Kilgore that the procedure his wife had undergone on
March 14 had not resolved her health problems and she would need to be seen at a
clinic in Ohio. In what Snipes thought was a negative tone, Kilgore stated, “Snipes
what are you going to do, you are out of time you cannot take anymore leave.”
Mot. Summ. J. Ex. 3, Pl.’s Resp. to Def.’s Interrogs. 4, ECF No. 23-3. Snipes
responded that he did not believe that he was out of leave time, and Kilgore told
him to speak with Human Resources about his remaining leave because he and
Fitzgerald believed he was out of time.

This conversation concerned Snipes

because a previous major, Mathew Pilkenton, had once told him that he should not
have suggested FMLA leave to an employee who was considering quitting due to
mental health issues.2 Pilkenton had told Snipes that doing so would keep a

2

This statement was made by the Authority’s agent or employee in a matter
within the scope of his employment, and it is therefore not inadmissible hearsay. See
Fed. R. Evid. 801(d)(2)(D).
-6-

position at the jail open and unfillable until the employee decided whether or not to
return. Snipes understood this statement to mean that employees who take FMLA
leave are “sucking the system dry,” and that use of FMLA leave was generally
looked down upon by jail administrators. Snipes Dep. 59:21–22, ECF No. 23-1.
Pilkenton had been Lockhart and Kilgore’s direct supervisor, and he had trained
them in their duties.
At the conclusion of the meeting with Kilgore and Mullins, Snipes was
given a list of subordinates and instructed to notify them that they had received
interviews for a corporal position.

Snipes asserts that he spoke with or left

messages for all of the interviewees. However, two individuals did not appear for
their interviews, and one told Kilgore that Snipes had not contacted him. Around
the same time, an inmate had a medical emergency during a shift from which
Snipes had been excused. Tonia Henley was the sergeant on duty when the
incident occurred, and Snipes contends that Henley did not contact him about it.
On May 27, Kilgore mentioned the missed interviews and Snipes’ lack of
knowledge about the medical emergency to Snipes, and Snipes became upset and
cursed at Kilgore. Immediately after this interaction with Kilgore, Snipes went to a
meeting that he was to lead prior to the start of the night shift. There were
approximately twenty-eight of Snipes’ subordinates at this meeting. In front of
these individuals, Snipes spoke to Henley about her communications with Kilgore
-7-

regarding the emergency during Snipes’ shift. Snipes lost his temper and raised his
voice during this conversation, telling Henley that Kilgore was “jumping [his] ass”
because of her communications with Kilgore about Snipes. Snipes Dep. 63:14,
ECF No. 23-1. In a separate, private conversation the same day, Snipes spoke with
one of the individuals who did not appear for the corporal interview.3 Snipes later
told Kilgore and Lockhart that he had lost his cool with him and owed him an
apology. In light of Snipes’ behavior during the meeting and the incidents leading
up to it, Kilgore sent Snipes home from the May 27th shift. When Kilgore sent
Snipes home, he stated, “With everything going on with your wife, I think it’s best
you go home.” Snipes Dep. 67:15–16, ECF No. 23-1.
In Kilgore’s opinion, Snipes had been losing the confidence of his
subordinates prior to the May 27 incident.

During interviews for a corporal

position on Snipes’ shift, Kilgore had heard from Snipes’ subordinates that they
rarely saw Snipes during the shift because he stayed in his office. Kilgore had also
observed this behavior himself. In February 2016, Kilgore had spoken with Snipes
about the need for him to spend more time in the back of the jail with his
subordinates rather than in his office. Kilgore had also written a memorandum to
memorialize this conversation.

3

This individual is identified as “Woodleaf” or “Woodlief.”
-8-

In his deposition, Kilgore testified that the May 27 incident was the tipping
point at which he recommended that Snipes’ employment be terminated. Lockhart
agreed with Kilgore, and he received approval to terminate Snipes. On May 31,
2016, Lockhart and Kilgore requested that Snipes come to the jail to meet with
them. Snipes secretly recorded the meeting with his cell phone. At the beginning
of the meeting, Snipes agreed that what he had done in the May 27 meeting was
wrong and he had lost respect from everyone at the meeting. Lockhart told Snipes
that his work performance had been declining, his behavior in the meeting was
unacceptable, and his leadership and support for his staff was nonexistent. As an
example of Snipes’ lack of leadership, Kilgore referenced the amount of time
Snipes spent in his office rather than in the jail with his subordinates, and he stated
that other employees had told him that there was no leadership on Snipes’ shift.
Lockhart told Snipes that as a result, the Authority was terminating his
employment. Snipes was also given an Employee Status Change form, which
stated as the basis for his termination, “Leadership and support for staff is not
acceptable.” Mot. Summ. J. Ex. 2, Pl.’s Initial Disclosures 8, ECF No. 23-2.
In his deposition, Kilgore testified that the decision to terminate Snipes’
employment stemmed from Snipes’ failure to interact with his staff outside of his
office, along with his behavior in the May 27 meeting, change in demeanor, and
use of profanity with an inmate. Kilgore also testified that Snipes’ behavior in the
-9-

May 27 meeting constituted a failure of leadership and misconduct, and the
Employee Status Change form might not have included misconduct as a basis for
Snipes’ termination because it could have harmed Snipes’ future employment
prospects. Lockhart also testified in his deposition that Snipes’ behavior in the
May 27 meeting amounted to misconduct and was part of the basis for his
termination. Lockhart testified that he may not have included the full extent of
Snipes’ misconduct on the Employee Status Change form in an effort to protect
Snipes’ future employment prospects.
Thereafter Snipes filed the present action against the Authority, alleging that
it violated the FMLA by interfering with his use of FMLA-protected leave and
retaliating against him for using FMLA-protected leave.

I dismissed Snipes’

allegation of interference for failure to state a claim upon which relief may be
granted. Snipes v. Sw. Va. Reg’l Jail Auth., 350 F. Supp. 3d 489 (W.D. Va. 2018).
The Jail Authority now moves for summary judgment on Snipes’ remaining
retaliation claim. The summary judgment motion has been fully briefed and orally
argued and is now ripe for decision.
II.
Federal Rules of Civil Procedure require a court to grant a motion for
summary judgment “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.
-10-

Civ. P. 56(a). A fact is material if its existence or non-existence could result in a
different jury verdict. JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d
459, 465 (4th Cir. 2001). Only disputes over material facts will preclude the entry
of summary judgment. Factual disputes that are irrelevant or unnecessary will not
be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
ruling on a summary judgment motion, the court should consider the parties’
pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“[T]he court is

required to view the facts and draw reasonable inferences in a light most favorable
to the nonmoving party.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
However, the court may not itself weigh the evidence or determine the truth of the
matter. Anderson, 477 U.S. at 249.
Snipes contends that the Jail Authority terminated his employment in
retaliation for his use of FMLA leave. In its Motion for Summary Judgment, the
Jail Authority counters that it instead terminated Snipes for a legitimate,
nondiscriminatory reason — his failure of leadership — that he cannot show was
pretextual.
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 [the FMLA].” 29 U.S.C. § 2615(a)(2). FMLA discrimination claims
-11-

are analogous to discrimination claims brought under Title VII of the Civil Rights
Act (“Title VII”). Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013).
Thus, a court will evaluate a plaintiff’s FMLA discrimination claim using Title VII
standards. Id. A plaintiff may successfully make an FMLA discrimination claim
by providing direct evidence of discrimination or by satisfying the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
A.
A plaintiff provides direct evidence of discrimination if the evidence directly
reflects the alleged discriminatory attitude and bears on the contested employment
decision. Id. An employer’s accurate explanation of the FMLA’s requirements for
employers and employees is also not evidence of discrimination. See Sharif v.
United Airlines, Inc., 841 F.3d 199, 205 (4th Cir. 2016) (“factual communication
between human resources personnel [and employees] is not, without more,
evidence of discriminatory animus”); Laing, 703 F.3d at 718 (holding that a
reasonable jury could not find evidence of a discriminatory attitude when the
employer “accurately explained that the FMLA did not ‘necessarily’ require the
company to keep [the employee]’s job open.”).

Further, employers may ask

employees questions regarding their need for FMLA leave and the details of their
leave. 29 C.F.R. § 825.302(c). Moreover, “[t]he FMLA does not impose ‘a
general civility code for the American workplace.’” Hasenwinkel v. Mosaic, 809
-12-

F.3d 427, 434 (8th Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006)). “[P]etty slights or minor annoyances that often take place
at work and that all employees experience” do not amount to discrimination.
Burlington, 548 U.S. at 68. Direct evidence of discrimination cannot be based on
the employee’s conclusory allegations or subjective beliefs. Mitchell v. Toledo
Hosp., 964 F.2d 577, 584–85 (6th Cir. 1992).
I find that there is no direct evidence of discrimination. Kilgore’s comment
to Snipes in the May 24 meeting was a question regarding Snipes’ need for FMLA
leave and a factual communication regarding his assessment of Snipes’ remaining
FMLA leave.4 Accepting that he made this comment in an exhausted tone, this is
no more than a petty slight that all employees may experience at work. Thus, it is
not direct evidence of discrimination. Moreover, Pilkenton’s past comment to
Snipes did not directly bear on Snipes’ termination, and Snipes’ conclusion that the
comment reflected a negative attitude that Pilkenton had instilled in Kilgore and
Lockhart is conclusory and insufficient to show direct evidence of discrimination.
Accordingly, I will consider whether Snipes has satisfied the McDonnell Douglas
burden-shifting framework.

4

Although the parties do not address Kilgore’s March 29, 2016, conversation
with Snipes regarding Snipes’ failure to comply with the Authority’s FMLA reporting
requirements and the Authority’s right to fire him if he exceeded twelve weeks of FMLA
leave, I find that this statement was also a factual communication and not direct evidence
of discrimination.
-13-

B.
To successfully make a discrimination claim under the McDonnell Douglas
framework, plaintiffs must first make a prima facie showing that (1) they engaged
in protected activity, (2) the employer took adverse action against them, and (3) the
adverse action was causally connected to the plaintiff’s protected activity.
Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 551 (4th Cir. 2006). Taking
FMLA leave constitutes engaging in protected activity, and termination is an
adverse action. Id. A close temporal relationship between these two events is
sufficient to make a prima facie showing of causality, Laing, 703 F.3d at 720, and
the Fourth Circuit has held that periods of two, three, and five months between
them are sufficient to make this showing. Moss v. City of Abbeville, 740 F. Supp.
2d 738, 745 (D.S.C. 2010) (citing cases).
Once the plaintiff puts forth evidence sufficient to establish a prima facie
case of discrimination, the burden shifts to the employer to put forth a legitimate,
nondiscriminatory reason for the employment action.

Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). This burden is one of production
rather than persuasion.

Id.

“[W]hen an employer gives a legitimate, non-

discriminatory reason for discharging the plaintiff, ‘it is not our province to decide
whether the reason was wise, fair, or even correct, ultimately, so long as it truly
was the reason for the plaintiff’s termination.’” Hawkins v. PepsiCo, Inc., 203
-14-

F.3d 274, 279 (4th Cir. 2000) (quoting DeJarnette v. Corning, Inc., 133 F.3d 293,
299 (4th Cir. 1998)).
If the employer produces this evidence, the burden shifts back to the
employee to prove by a preponderance of the evidence that the employer’s
legitimate reason was a pretext for discrimination. Reeves, 530 U.S. 143. The
employee may do so by showing that the employer’s proffered explanation is
unworthy of credence. Id. “Prior satisfactory performance evaluations can be
evidence that a more recent claim of poor performance is pretext for
discrimination.” Moss, 740 F. Supp. 2d at 746–47. When the employer’s reason
was based in the employee’s performance, evidence that the employer actually
believed the performance was good may show that the reason was a pretext. See
Hawkins, 203 F.3d at 279. It is “the perception of the decisionmaker which is
relevant not the self-assessment of the plaintiff.” Holland v. Washington Homes,
Inc., 487 F.3d 208, 218 (4th Cir. 2007) (quoting Beall v. Abbott Labs., 130 F.3d
614, 620 (4th Cir. 1997)). Thus, an employee’s disagreement as to the quality of
his or her work is irrelevant. Hawkins, 203 F.3d at 280.
The Authority does not contest that the temporal proximity of Snipes’
FMLA leave and termination is sufficient to make out his prima facie showing of
discrimination. However, it asserts that Snipes’ termination was for a legitimate,
nondiscriminatory reason — his misconduct and failure of leadership at the May
-15-

27 meeting and the lack of leadership and support for staff on his shifts. The
Authority also argues that there is no evidence pursuant to which a jury could find
that this reason was pretext for discrimination based on Snipes’ FMLA leave.
However, Snipes contends that he has set forth evidence sufficient to raise a
genuine issue of fact as to whether the Authority’s reason was pretext.
Snipes argues that a jury could find that the Authority’s proffered reason for
his termination was pretext because he has set forth evidence suggesting that the
Authority’s concerns with his leadership were unworthy of credence. In particular,
Snipes relies on the positive ratings he received for leadership and staff relations in
his April 26, 2016, performance appraisal. Snipes also alleges that his superiors
had discussed with him the need to spend more time outside of his office only
once, rather than on numerous occasions, as the Authority contends. In addition,
Snipes notes the lack of any disciplinary record regarding leadership issues or his
interactions with his subordinates.
I find, as the Authority has conceded, that Snipes has made a prima facie
showing of discrimination. I also find that Snipes has set forth evidence sufficient
to raise a genuine issue of fact as to whether the Authority’s reason for his
termination was pretextual. In his performance appraisal, just a month before his
termination for allegedly ongoing failures of leadership, Snipes was given high
ratings in areas that are directly relevant to leadership. Moreover, the appraisal
-16-

rated his overall performance as competent, or clearly meeting the requirements of
the position. Snipes’ termination occurred just a week after he had told Kilgore
and Mullins that he may need to take more FMLA leave and Kilgore had reacted to
this news negatively. Snipes also testified that a previous jail administrator had
told him that he shouldn’t extend FMLA leave to employees because doing so
creates an open position that the Authority cannot fill until the employee returns.
Although the Authority has emphasized Snipes’ conduct at the May 27 meeting as
a significant part of its reason for his termination, it is up to the jury to weigh this
evidence against that described above to determine the issue of pretext.
Accordingly, the Authority is not entitled to summary judgment as to Snipes’ claim
that it violated the FMLA by discriminating against him for his use of FMLAprotected leave.
III.
For the foregoing reasons, it is ORDERED that the Motion for Summary
Judgment, ECF No. 23, is DENIED.

ENTER: March 11, 2019
/s/ James P. Jones
United States District Judge

-17-