Opinion
No. 4:21-cv-00365-JEG-SBJ
2023-02-07
Raymond BLACK, Plaintiff, v. SWIFT PORK COMPANY d/b/a JBS, Defendant.
David Ronald Albrecht, Amy Rachelle Beck, Fiedler Law Firm PLC, Johnston, IA, for Plaintiff. Christine E. Bestor Townsend, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Milwaukee, WI, Charlotte McEwen, Pro Hac Vice, Jonathon Michael Watson, Pro Hac Vice, Tara Ann Bailes, Pro Hac Vice, Spencer Fane LLP, Denver, CO, Randi Joy Winter, Pro Hac Vice, Spencer Fane LLP, Minneapolis, MN, Wesley T. Graham, Duncan Green PC, Des Moines, IA, for Defendant.
David Ronald Albrecht, Amy Rachelle Beck, Fiedler Law Firm PLC, Johnston, IA, for Plaintiff. Christine E. Bestor Townsend, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Milwaukee, WI, Charlotte McEwen, Pro Hac Vice, Jonathon Michael Watson, Pro Hac Vice, Tara Ann Bailes, Pro Hac Vice, Spencer Fane LLP, Denver, CO, Randi Joy Winter, Pro Hac Vice, Spencer Fane LLP, Minneapolis, MN, Wesley T. Graham, Duncan Green PC, Des Moines, IA, for Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
JAMES E. GRITZNER, Senior Judge
This matter is before the Court on a Motion for Summary Judgment, ECF No. 25, filed by Defendant Swift Pork Company (Swift Pork). Plaintiff Raymond Black (Black) resists. ECF No. 31. Swift Pork filed a reply. ECF No. 34. Both parties requested oral argument. After reviewing the record, the Court determined oral argument was not necessary to resolve the issues adequately presented in the briefing. ECF No. 41. The motion is ready for disposition. I. BACKGROUND
On November 15, 2022, by agreement of the parties, Black sought and was granted leave to file an amended brief, amended fact statements, and an amended appendix in resistance to summary judgment. The Court relies upon Black's amended submissions for purposes of this order.
For purposes of summary judgment, the Court "view[s] facts in the light most favorable to the nonmoving party, and . . . make[s] no determinations of credibility; nor do[es] [it] weigh the evidence or draw inferences, as those functions belong to the jury." Cottrell v. Am. Fam. Mut. Ins. Co., 930 F.3d 969, 971 (8th Cir. 2019). Unless expressly attributed to a party, the facts set forth in this section are undisputed.
Swift Pork operates a pork processing plant in Ottumwa, Iowa, where it employs approximately 2,500 workers. During the period relevant to this case, Black was employed by Swift Pork as a mechanic in the Ottumwa plant's maintenance department. Swift Pork fired Black after he left the plant in the middle of his shift on June 16, 2020. In this lawsuit, Black contends Swift Pork's termination of his employment violated his rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654.
A. Swift Pork's Policies
Swift Pork maintains a written attendance policy applicable to all employees at the Ottumwa plant. Under the policy's "nofault" framework, employees who miss work incur "points" for their absences, regardless of the reason. Attendance Policy—Def.'s App. 54, ECF No. 25-3. Gaining too many points in a twelve-month period triggers progressive discipline, up to automatic termination. Among other provisions, the attendance policy requires employees to remain at the plant for the duration of their scheduled shifts. Leaving a shift early is considered "job abandonment (voluntary resignation)" unless an employee has the permission of a supervisor. Id. Between January 2017 and June 2020, Swift Pork terminated 145 employees for leaving work without permission.
Swift Pork also maintains a written employee handbook for production and maintenance workers at the Ottumwa plant. The handbook features a leave of absence policy, which includes information regarding FMLA leave. A section of the policy entitled "Notice of Leave" provides:
The handbook also includes a disciplinary policy, which, like the attendance policy, prohibits employees from leaving the company premises during a scheduled shift without the permission of a supervisor.
If your need for family/medical leave is foreseeable, you must give the Company at least 30 days prior written notice. Failure to provide such notice may be grounds for delay of leave. In cases where the need for leave is not foreseeable, you are expected to notify the Company as soon as possible, generally within 1 to 2 business days of learning of your need for leave. The Company has Request for Family/Medical Leave forms available from the Human Resources Department. You must use these forms when requesting leave.Id. at 84. Notwithstanding, the parties agree that Swift Pork employees requesting FMLA leave for a scheduled shift may notify the company by calling a hotline at least 30 minutes prior to their shift and selecting "FMLA" using touch tone numbers. These employees must then complete an FMLA reporting form within 48 hours of their return to work. Approved FMLA leave does not count towards an employee's attendance points.
B. Black's FMLA Leave
Black's wife, Janet, suffers from severe cardiovascular disease. In September 2017, Black began requesting intermittent FMLA leave to provide care for Janet. Black supplied Swift Pork with a certification form completed by Janet's doctor, who stated Janet would need Black's help with transportation for medical appointments or emergency treatment approximately four times per month for up to two days at a time. Janet's doctor also certified that she would need assistance with "transportation" and "help [with] medications [and] oxygen" in the event of "hospitalizations." FMLA Certification—id. at 35.
Swift Pork approved Black to take intermittent FMLA leave up four times per month for two days per episode. Between September 2017 and June 2020, Black took FMLA leave to care for Janet on 158 occasions. All but three of these absences were for full-day shifts.
C. Black's Termination
According to his job description, Black's duties as a mechanic at Swift Pork's Ottumwa plant included repairing and maintaining equipment throughout the facility, carrying out preventative maintenance, responding to radio calls for mechanical issues, and performing related maintenance tasks as assigned by his supervisor. Black typically worked in the upper cut area of the plant on a machine called the loin puller, which is used to cut the loin, ribs, and bacon off a hog. The loin puller is a critical component on Swift Pork's production line. If it malfunctions, production must be stopped until the machine is repaired.
In May 2020, Black contracted walking pneumonia. He took twelve days of paid leave and fifteen days of unpaid medical leave to recover. While Black was out sick, Swift Pork's plant engineer, John White, directed Black's supervisor, Patrick Griffith, to begin cross-training other employees on the loin puller.
Black did not request FMLA leave for this period, and he does not assert that he was eligible to take FMLA for his own serious health condition.
On June 16, 2020, Black returned to work. He arrived at the plant around 7:45 a.m. At that time, Griffith asked Black to take maintenance calls in the lower cut production area. Black asserts that he waited in the lower cut area for two hours before being told to inspect the plexi-glass dividers installed between production workers during the COVID-19 pandemic. When Black eventually learned that another mechanic was training on the loin puller, he confronted Griffith. According to Black, Griffith told him other employees were being trained because "John [White] wanted somebody that was here all the time." Black Dep. 105:24—id. at 74, ECF No. 25-3. Black alleges that when he denied responsibility for being out with pneumonia, Griffith responded "no, before that." Black Dep. 106:2—id. at 75. Swift Pork alleges Black cursed at Griffith for moving him off the loin puller. Black denies cursing. There is no dispute that when Griffith expressed uncertainty about Black's future work assignment, Black replied that he would "take a vacation until you guys can figure it out." Black Dep. 106:4-5—id.
Black proceeded to Swift Pork's Human Resources office, where he filled out a form requesting five days off—the balance of his accrued vacation—to begin the following day. Black presented the form to Griffith, but Griffith refused to approve the request without advance notice. Black then took the form to White, who was meeting with Assistant Plant Engineer Ron Hesse. Both White and Hesse declined to sign Black's form. Next, according to Black:
I walked out, and I probably stood there for a few minutes. And my wife was home sick, and I just went to [Griffith], and I said, "My wife is not feeling very good, and I'm going home." And he said, "Okay." So I went and put up my tools and everything and went home on FMLA.Black Dep. 87:22-88:2—id. at 70. The parties do not dispute that Black informed Griffith that he intended to use FMLA leave for the remainder of his shift. However, Swift Pork denies that Griffith gave Black permission to leave the plant. According to Swift Pork, Griffith told Black to take his FMLA request to Human Resources, but Black simply walked out.
Black left the plant sometime after 10:30 a.m. He spent the rest of June 16th at home with his wife. The next day, June 17th, Black asserts he requested FMLA leave for his full scheduled shift using Swift Pork's call-in system. On June 18th, Black called in sick but did not request FMLA leave. He was then placed on a leave of absence.
On Friday, June 19th, Human Resources Director Zenna Boyd and Plant Manager Joe Mach met with Black to discuss his early departure on June 16th. The following Monday, June 22nd, Boyd called Black to notify him that his employment had been terminated for leaving the plant without permission. The parties disagree whether Boyd and Mach were aware during the June 19th meeting that Black had invoked the FMLA when leaving the plant on June 16th. The parties also dispute whether it was Boyd or Mach who ultimately determined to terminate Black.
D. Procedural History
Black's union grieved his termination pursuant to a collective bargaining agreement. During the grievance process, Swift Pork offered to reinstate Black to a different position, but Black declined. On October 18, 2021, Black filed this action in the Iowa District Court for Wapello County alleging Swift Pork had terminated his employment in violation of the FMLA. He asserts claims for FMLA interference and FMLA discrimination. Swift Pork timely removed pursuant to 28 U.S.C. §§ 1331 and 1441(a).
Black's Petition also alleged a theory of FMLA retaliation. He has since abandoned that claim. See Pl.'s Resist. Br. 7 n.3, ECF No. 36-1.
On October 7, 2022, Swift Pork filed its instant Motion for Summary Judgment seeking dismissal of Black's lawsuit in full. Swift Pork contends Black's interference claim must fail as a matter of law because Black did not seek leave for an FMLA-qualifying reason on June 16th, because he received all of the leave to which he was entitled, and because he was terminated for a reason unrelated to his use of FMLA leave. Swift Pork further argues that Black's discrimination claim must fail because Black did not engage in protected activity, because he cannot show a causal connection between his termination and FMLA-protected activity, and because he cannot rebut Swift Pork's non-discriminatory reason for terminating his employment. Black resists, arguing genuine and material factual disputes require trial on each of these issues.
II. DISCUSSION
"Summary judgment is proper 'if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.' " Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Fed. R. Civ. P. 56(c)(2)). "Facts that, if altered, affect the outcome of a lawsuit under applicable substantive law, are material." Cottrell v. Am. Fam. Mut. Ins. Co., S.I., 930 F.3d 969, 972 (8th Cir. 2019) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A material fact dispute is 'genuine' if each party has supplied some evidence that is sufficient for a reasonable jury to return a verdict for the nonmoving party." Id. " 'The burden of demonstrating that there are no genuine issues of material fact rests on the moving party,' and '[courts] review the evidence and the inferences that reasonably may be drawn from the evidence in the light most favorable to the nonmoving party.' " Grage v. N. States Power Co.-Minn., 813 F.3d 1051, 1054 (8th Cir. 2015) (quoting Davis v. Jefferson Hosp. Ass'n, 685 F.3d 675, 680 (8th Cir. 2012)).
A. FMLA Framework
The FMLA entitles eligible employees to twelve weeks of protected, unpaid leave during a one-year period under certain qualifying circumstances. See 29 U.S.C. § 2612(a)(1); Thompson v. Kanabec Cnty., 958 F.3d 698, 705 (8th Cir. 2020). One qualifying circumstance is an employee's need "to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). A serious health condition is "an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." Id. § 2611(11). Leave to care for a covered family member may be taken for a continuous period, or it "may be taken intermittently . . . when medically necessary." Id. § 2612(b)(1). Upon returning to work, the employee must be restored to a position that is the same or equivalent to the one the employee held before taking leave. Id. § 2614(a)(1).
To verify that an employee qualifies for leave under the FMLA, an employer may require the employee to obtain "a certification issued by the health care provider of the eligible employee or of the [covered family member]." Id. § 2613(a). In the context of leave to care for a covered family member, the employer may require the certification to provide "information sufficient to establish that the family member is in need of care" and, where applicable, "information sufficient to establish the medical necessity for such intermittent or reduced schedule leave." 29 C.F.R. § 825.306(a)(5), (7). Employers dissatisfied with an employee's certification may seek a second or third opinion. See generally id. § 825.307. However, declining to follow the certification process does not preclude an employer from later challenging the employee's entitlement to FMLA leave. See Murphy v. FedEx Nat. LTL, Inc., 618 F.3d 893, 902 (8th Cir. 2010); Stekloff v. St. John's Mercy Health Sys., 218 F.3d 858, 860 (8th Cir. 2000).
It is unlawful for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise" an employee's right to FMLA leave. 29 U.S.C. § 2615(a)(1). Two types of claims are available under § 2615(a)(1): entitlement claims and discrimination claims. Burciaga v. Ravago Americas LLC, 791 F.3d 930, 934 & n.2 (8th Cir. 2015). An entitlement claim—also known as an interference claim—arises where an employer denies a benefit that the FMLA guarantees to an employee. Hudson v. Tyson Fresh Meats, Inc., 787 F.3d 861, 864 (8th Cir. 2015). By contrast, a discrimination claim arises where "an employer takes adverse action against an employee because the employee exercises rights to which he is entitled under the FMLA." Id. at 864-65 (quoting Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1006 (8th Cir. 2012)).
B. Black's Interference Claim
Black claims Swift Pork interfered with his FMLA rights by failing to excuse his June 16th absence as FMLA leave. "To establish an FMLA interference claim, a plaintiff must show he was: '(1) entitled to a benefit under the FMLA, (2) the employer interfered with that entitlement, and (3) the reason for the denial was connected to the employee's FMLA leave.' " Whittington v. Tyson Foods, Inc., 21 F.4th 997, 1001 (8th Cir. 2021) (quoting Thompson, 958 F.3d at 705); see also Stallings v. Hussmann Corp., 447 F.3d 1041, 1050-51 (8th Cir. 2006).
In his resistance briefing, Black also asserts that Swift Pork denied his FMLA rights by refusing to excuse his absence on June 17, 2020. Swift Pork acknowledges a factual dispute as to whether Black called in an FMLA absence on that day. Def.'s Reply 1-2, ECF No. 34. Whether or not Black's June 17th absence was designated as FMLA is immaterial, as he cannot establish a claim for interference based on an attendance point that was never used against him. See Thompson, 958 F.3d at 705-06 (stating that to prevail on an interference claim, an employee must "show[ ] that the employer's interference prejudiced the employee"). Similarly, Black's allegations that his supervisors mocked him and that Swift Pork generally discouraged use of FMLA leave cannot support his claim for interference because Black does not assert, and the record does not show, this behavior ever deterred him from exercising his own rights.
Among other arguments, Swift Pork contends Black's interference claim must fail because he was not entitled to a benefit under the FMLA on June 16th. The company does not dispute Janet's serious health condition or Black's general eligibility for intermittent FMLA leave. Instead, Swift Pork asserts Black did not qualify for FMLA protection on June 16th because he did not need to care for Janet that day. Swift Pork argues Black left work early because he was upset about his job assignment and his supervisors' refusal to approve his vacation request, not because he had to attend to his wife's medical needs.
The FMLA states that leave to care for a covered family member may be taken on an intermittent basis when "medically necessary." 29 U.S.C. § 2612(b)(1). The statute does not define what a need to provide care includes. In its regulations implementing the FMLA, the Department of Labor suggests that a qualifying need to care for a covered family member "encompasses both physical and psychological care" and "includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor." 29 C.F.R. § 825.124(a). According to the regulations, qualifying care "also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care." Id.
The parties cite no binding authority examining the need-to-care standard. The Court finds guidance in Miller v. Neb. Dep't of Econ. Dev., 467 F. App'x 536, 539 (8th Cir. 2012) (per curiam), an unpublished decision in which the Eighth Circuit found an employee was not entitled to FMLA leave for unexcused absences he allegedly used to help his terminally ill father with day-to-day activities. In resisting summary judgment, the employee proffered an affidavit stating his father " 'would often need assistance' using the bathroom, dressing, and standing up," as well as a declaration from a doctor who "would have certified" that the employee needed to care for his father. Id. Testimony from the father's companion, on the other hand, suggested the father was able to care for his own medical, hygienic, and nutritional needs during the dates at issue. Id. The court acknowledged the FMLA's silence on the issue of qualifying care and observed both parties' reliance upon the Department of Labor's interpretation of the statute. Id. at 538 (citing 29 C.F.R. § 825.124(a)). Without expressly analyzing whether the type of care alleged by the employee qualified under § 2612(a)(1)(C), the court found the statements of the employee and doctor failed to contradict the record evidence that the father was able to care for himself. Id. at 539. The court concluded the employee had not raised a genuine dispute as to whether he "actually provided [his father] with necessary care during his absences." Id. at 540 (emphasis added).
In this case, there is no dispute that Black spent the afternoon of June 16th at home with Janet. According to Janet's affidavit, Black "would have helped [her] around the house, assisted [her] getting to the restroom, and helped administer [her] medication." Janet Aff. ¶ 6—Pl.'s App. 150, ECF No. 36-4. While these activities relate to Janet's medical and hygienic needs, the pivotal question is whether Black's assistance was necessary to meet those needs. See Miller, 467 F. App'x at 539-40 ("While we have no doubt that someone with [a serious health condition] might be expected to require assistance with his basic needs, that does not necessarily create a genuine question as to whether an individual patient actually required such assistance."). To this end, the only support Black offers is an affidavit from Janet stating that her "condition required that [Black] take care of [her]" and that she "needed [Black] to care for [her] more generally at home," particularly during the COVID-19 pandemic. Id. ¶¶ 4-5.
As in Miller, the conclusory affidavit on which Black relies is not enough to create a jury question as to the medical necessity of his leave. The undisputed facts surrounding Black's absence demonstrate that his decision to leave the plant was discretionary, not necessary. Pursuant to Swift Pork's call-in procedure, Black could have requested a full day of FMLA leave to care for Janet by calling the company hotline prior to the start of his shift. Instead, Black appeared for his shift and spent approximately three hours at the plant. Black does not suggest that Janet was incapable of using the restroom, administering medication, or attending to her other basic needs during this time. Nor does he allege that an unexpected change in Janet's circumstances required him to return home early and assist her with these activities. It was Black's circumstances that changed. He advances no evidence suggesting that, prior to his confrontation with his supervisors, he believed Janet needed his care. On this record, there is no genuine dispute that Black invoked the FMLA because it was convenient for him to do so, not because it was medically necessary to provide care for Janet's serious health condition. See Overley v. Covenant Transp., Inc., 178 F. App'x 488, 495 (6th Cir. 2006) (unpublished) (finding administrative appointments and other non-time-sensitive activities performed "as a mere afterthought" did not make employee's absence necessary for her daughter's care).
To be sure, the regulations provide that qualifying care may be "psychological" rather than "physical." 29 C.F.R. § 825.124(a). However, Black does not allege he left work on June 16 to provide Janet with psychological support. See Miller, 467 F. App'x at 541 (finding no evidence that an employee used his absences to provide his father with psychological care as part of an ongoing inpatient or home care treatment program).
Black alleges he had intended to take time off to help Janet prior to his confrontation with Griffith and that he first requested vacation only because his vacation time was paid and FMLA leave was not. However, Black did not ask to take vacation for June 16th. His unapproved request form clearly shows that he sought to begin his vacation the following day. Black also argues that the FMLA certification from Janet's doctor shows that Janet required Black's assistance with medication and oxygen. But an FMLA certification is not legally determinative of an employee's qualifying condition. See Murphy, 618 F.3d at 902. Further, in this case, the certification is not as broad as Black asserts and does not generate a question of fact. Janet's doctor certified only that Janet would need (1) help with transportation to medical appointments in the event of intermittent "flare-ups" in her condition and (2) help with "medications [and] oxygen" in the event of a "single continuous period" of incapacitation involving "hospitalizations." FMLA Certification—Def.'s App. 35-36, ECF No. 25-3. There is no dispute that Janet had no medical appointments on June 16th, and Black does not allege Janet had recently been hospitalized.
There is no doubt in the record that Black used his time off on June 16th to help Janet. However, it is Black's burden to show that this time off was within the protection of the FMLA. On the record before the Court, no reasonable juror could find that Black's use of intermittent leave on June 16th was medically necessary for Janet's care. See Miller, 467 F. App'x at 539; Overley, 178 F. App'x at 495. Because Black has not raised a genuine issue of fact as to his entitlement to an FMLA benefit, the Court need not address Swift Pork's arguments regarding the other elements of Black's interference claim.
C. Black's Discrimination Claim
Unlike a claim for FMLA interference, a claim for FMLA discrimination does not require the employee to show a denial of benefits. Rather, the claim arises when, "after the employee exercise[s] his statutory rights, the employer discriminate[s] against him in the terms and conditions of employment." Pulczinski, 691 F.3d at 1006. "An employee making this type of claim must prove that the employer was motivated by the employee's exercise of rights under the FMLA." Id. Black alleges that Swift Pork discriminated against his use of FMLA leave by removing him from his usual work area and by terminating his employment. Black also alleges that he was discriminated against when his supervisors mocked his use of FMLA leave, accused him of lying about how he spent his time off, and complained about Black's frequent leave to Human Resources.
A claim for FMLA discrimination may be based on direct evidence or indirect evidence. Evans v. Coop. Response Ctr., Inc., 996 F.3d 539, 551 (8th Cir. 2021). "Direct evidence is evidence sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action." Id. (quoting Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). In cases that do not involve direct evidence of discriminatory intent, courts in the Eighth Circuit analyze FMLA discrimination claims under the familiar McDonnell Douglas burden-shifting framework:
First, the employee must establish a prima facie case of retaliatory discrimination by showing that she exercised rights afforded by the Act, that she suffered an adverse employment action, and that there was a causal connection between her exercise of rights and the adverse employment action. Second, once the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Finally, the burden shifts back to the employee to demonstrate that the employer's proffered reason is pretextual. The employee must present evidence that (1) creates a question of fact regarding whether the defendant's reason was pretextual and (2) creates a reasonable inference that the defendant acted in retaliation.Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1161 (8th Cir. 2016) (internal quotation marks and alterations omitted) (quoting Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006)); accord Brandt v. City of Cedar Falls, 37 F.4th 470, 480 (8th Cir. 2022).
Direct evidence is not at issue in this case, and both parties apply the McDonnell Douglas framework in their briefing. Swift Pork contends Black's claim must fail on the first prong of the burden-shifting analysis because he has failed to establish a prima facie case of FMLA discrimination. To the extent Black has established a prima facie case, Swift Pork alternatively contends that Black cannot meet the third prong of the McDonnell Douglas analysis because he has failed to raise a triable issue of fact as to whether Swift Pork's proffered reason for Black's termination is pretextual.
1. Protected Activity
Swift Pork argues that Black was not engaged in protected activity when he left work early on June 16th. The Court must agree. Because Black has failed to raise a genuine issue of material fact regarding his entitlement to FMLA leave on June 16th, see supra Section II.B, his early departure from work on that day was not protected. However, Black asserts FMLA discrimination based on more than one day of protected activity. See Amsel v. Texas Water Dev. Bd., 464 F. App'x 395, 401 (5th Cir. 2012) (unpublished per curiam) ("Amsel's past use of FMLA leave is protected activity sufficient to surpass the first prima facie element even though Amsel was not an 'eligible employee' at the time of his discharge." (internal citation omitted)). Swift Pork acknowledges that a question remains as to whether Black exercised his right to FMLA leave on June 17th. Def.'s Reply 2 n.3, ECF No. 34. Furthermore, there is no dispute that Black took FMLA leave on 158 occasions before that. Black's exercise of FMLA rights on dates other than June 16th satisfies the protected activity element of his prima facie case.
Citing Johnson v. Dollar Gen., 880 F. Supp. 2d 967, 993 (N.D. Iowa 2012), Swift Pork suggests the relevant question for the protected activity element is not whether Black was actually entitled to FMLA leave, but whether he believed he was so entitled. In Johnson, the district court reasoned that § 2615(a)(1)'s protection for "the attempt to exercise" FMLA rights implies that a claim for discrimination may stand where an employee, although ineligible for leave, asserts an FMLA right in "good faith." 880 F. Supp. 2d at 993. The Eighth Circuit has not adopted Johnson's good faith standard. Several other courts have held that employees who are ineligible for FMLA leave generally cannot bring a claim under § 2615(a)(1). See, e.g., Walker v. Elmore Cnty. Bd. of Educ., 379 F.3d 1249, 1253 (11th Cir. 2004) ("There can be no doubt that the request—made by an ineligible employee for leave that would begin when she would still have been ineligible—is not protected by the FMLA."); Dougherty v. Cable News Network, 396 F. Supp. 3d 84, 112 (D.D.C. 2019) ("[C]ourts have generally recognized that, aside from very limited circumstances, eligibility under the FMLA is a prerequisite to make an FMLA retaliation claim."). But see McArdle v. Town of Dracut/Dracut Pub. Sch., 732 F.3d 29, 36 (1st Cir. 2013) (suggesting that eligibility is not a prerequisite for a claim of FMLA discrimination). Here, the distinction is somewhat academic. Even if a good faith standard applied, the Court would conclude that Black did not engage in protected activity on June 16th because, for the reasons discussed with respect to Black's interference claim, the record leaves no room for dispute that Black did not assert his FMLA rights in good faith.
2. Adverse Employment Action
Swift Pork does not contest that Black's termination constitutes an adverse employment action. See Wages v. Stuart Mgmt. Corp., 798 F.3d 675, 678 (8th Cir. 2015) ("[T]ermination is unequivocally an adverse employment action."). However, Black also argues that he suffered adverse employment actions when his supervisors allegedly mocked, questioned, and complained about his use of FMLA leave and when he was reassigned from his normal work area on June 16th. Because the remaining elements of Black's claim depend on the particular discriminatory conduct he asserts, the Court must determine whether Black has established any adverse employment action aside from his termination.
"An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage." Chappell v. Bilco Co., 675 F.3d 1110, 1117 (8th Cir. 2012) (quoting Wedow v. City of Kansas City, 442 F.3d 661, 671 (8th Cir. 2006)). "Mere inconvenience without any decrease in title, salary, or benefits or that results only in minor changes in working conditions does not meet this standard." Id. (internal quotation marks and citation omitted). An employment action is not materially adverse unless it "well might have dissuaded a reasonable worker" from exercising their rights under the FMLA. Hasenwinkel v. Mosaic, 809 F.3d 427, 433 (8th Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)); see also Wierman v. Casey's Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011).
Black cites no evidence in the record showing his supervisors criticized his use of FMLA leave in a manner that would deter a reasonable employee from exercising their FMLA rights. In his deposition, Griffith recalled only one occasion during a breaktime conversation in 2019 when he warned Black against abusing his FMLA benefits after Black admitted to hunting mushrooms while on leave. Griffith did not report this information to Human Resources. Boyd testified that a different supervisor once complained about Black's use of leave, but that Human Resources declined to investigate the complaint. Black does not assert, nor does the record bear out, that either of these incidents deterred him from taking future leave. Thus, even assuming Black's supervisors criticized him on two occasions for using FMLA leave, their actions—which carried no disciplinary consequences—did not rise to the level of material adversity.
Neither can Black show that his assignment to the lower cut area on the morning of June 16th was an adverse employment action. Changes to an employee's job assignment "typically do not amount to adverse employment actions unless accompanied by a reduction in pay, change in title or benefits, or . . . significantly different job responsibilities." Schoonover v. Schneider Nat. Carriers, Inc., 492 F. Supp. 2d 1103, 1136 (S.D. Iowa 2007) (finding a truck driver's reassignment to different trucks, resulting in a loss of pay, could constitute an adverse employment action, whereas her reassignment to different routes could not). There is no dispute that Black's assignment to the lower cut area did not involve a decrease in his title, salary, or benefits. Black simply considers the lower cut area less a desirable job assignment. However, it is undisputed that the lower cut area features many of the same machines with which Black was familiar from the upper cut area, with the exception of the loin puller. Additionally, although Griffith testified that he rarely, if ever, asked Black to take maintenance calls in the lower cut area, Black's job description expressly describes his duties to include repairing and maintaining equipment "[t]hroughout [f]acility" and performing "other maintenance related tasks as assigned by the supervisor." Job Summary—Def.'s App. 24, ECF No. 25-3. Neither Black's preference to work in the upper cut area nor having been typically assigned to that area create an entitlement to that assignment.
Black argues he was hired to work exclusively as an upper cut mechanic based on a handwritten annotation on his offer of employment, which reads "MTCCT-1 OPEN." Id. at 21. According to Black, "CT" stands for "upper cut." However, he cites no evidence for this interpretation beyond his own speculation. And, even if Black had evidence to show that his job duties were limited to servicing the upper cut area, it would make no difference. A temporary transfer to a different position during a period of intermittent leave is not an adverse employment action, so long as it does not diminish the employee's pay or benefits. See generally 29 C.F.R. § 825.204. Because Black has failed to show another adverse employment action, the second element of his prima facie case is satisfied solely by his termination.
3. Causal Connection
Swift Pork argues that Black cannot show a causal connection between his FMLA leave and his termination because Boyd made an independent decision to terminate Black for leaving the plant without permission on June 16th. "A causal connection exists when the plaintiff shows that a discriminatory motive 'played a part in the adverse employment action.' " Hasenwinkel, 809 F.3d at 433 (quoting Hite, 446 F.3d at 865). "Evidence that gives rise to 'an inference of a retaliatory motive' on the part of the employer is sufficient to establish a causal link." Hite, 446 F.3d at 866 (alteration omitted) (quoting Kipp v. Mo. Highway & Transp. Comm'n, 280 F.3d 893, 897 (8th Cir. 2002)).
Black contends a reasonable juror could infer that his FMLA leave played a part in his termination based on the fact that he was fired so soon after taking protected leave on June 17th. The temporal proximity of an adverse employment action can sometimes generate an inference of discrimination. See Hite, 446 F.3d at 866. However, "mere coincidence" is not enough to meet a plaintiff's prima facie burden. Id. Cases finding an inference of a retaliatory motive based on temporal proximity alone have usually involved timing that was "very close," id. (quoting Wallace v. Sparks Health Sys., 415 F.3d 853, 859 (8th Cir. 2005)), or a "pattern of adverse actions," Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002) (collecting cases). "Generally, more than a temporal proximity between protected activity and termination is required to present a genuine issue of fact for trial." Malloy v. U.S. Postal Serv., 756 F.3d 1088, 1091 (8th Cir. 2014).
In this case, no reasonable juror could infer a retaliatory motive based on temporal proximity alone. "[E]vidence of timing cannot be viewed in isolation." Id. Black's termination must be considered in the context of his regular FMLA leave—158 days—which he took without incident between September 2017 and June 2020. An employee's routine exercise of FMLA rights without adverse action generally precludes an inference of discrimination based on temporal proximity. See Evans, 996 F.3d at 544-45, 552 (finding an employee who took intermittent FMLA leave on "numerous occasions" over the course of eight months was not entitled to an inference of a retaliatory motive based on the thirteen days between her last FMLA absence and the unexcused absence for which she was fired); Malloy, 756 F.3d at 1091 (finding a postal worker's "use[ ] [of] FMLA leave on several other occasions . . . without repercussions" under-mined any inference of discrimination based on the eleven-day period between her protected activity and termination). Given Black's extensive use of FMLA leave, the timing of his termination cannot support an inference of retaliatory intent. Even if it did, any such inference would be "undermined by the inference of nondiscrimination" arising from the nearly equivalent proximity of Black's termination to his conduct on June 16th. Malloy, 756 F.3d at 1091.
Black also argues Griffith's statement that White wanted a mechanic with consistent attendance to train on the loin puller reflects discriminatory animus toward Black's use of FMLA leave. Black alleges Griffith expressly referred to Black's protected leave. Even if that is true, Griffith's remarks about White's instructions cannot demonstrate a retaliatory motive because there is no dispute that neither Griffith nor White was the decision-maker with respect to Black's termination. See Thompson, 958 F.3d at 707-08 (finding a supervisor's email criticizing a county employee's request for FMLA leave did not support a causal connection between the employee's request and the county board's decision to terminate the employee, noting the supervisor lacked independent authority to terminate the employee). While the parties dispute whether Mach or Boyd was the de facto decision-maker in this case, Black agrees that individual supervisors at the Ottumwa plant have no authority to terminate employees.
Black cites no other evidence supporting a causal connection between his protected activity and his termination. Because Black cannot demonstrate this critical element of his prima facie case, his claim for FMLA discrimination must fail.
4. Evidence of Pretext
Even if Black could demonstrate a prima facie case, his discrimination claim would still fail because he cannot meet his ultimate burden of rebutting Swift Pork's stated reason for his termination—namely, "refusing a job assignment, demanding a week's vacation on no notice, and walking off the job without obtaining proper authorization from HR to leave early." Def.'s Br. 14, ECF No. 25-1. When an employer proffers a legitimate, nondiscriminatory reason for its adverse action, as Swift Pork has done here, the burden returns to the employee to demonstrate that the employer's reason is pretextual. Massey-Diez, 826 F.3d at 1161. Black could do so by "show[ing] that [Swift Pork]'s explanation is unworthy of credence because it has no basis in fact." Corkrean v. Drake Univ., 55 F.4th 623, 631 (8th Cir. 2022) (internal quotation marks and alterations omitted) (quoting Brown v. Diversified Distrib. Sys., LLC, 801 F.3d 901, 909 (8th Cir. 2015)). He could also meet his burden by "persuading the court that a prohibited reason more likely motivated the employer." Id. (quoting Torgerson v. Cty. of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011)). Under either method, proving pretext "requires more substantial evidence than it takes to make a prima facie case." Brandt, 37 F.4th at 480 (quoting Phillips v. Mathews, 547 F.3d 905, 912-13 (8th Cir. 2008)). "[T]he plaintiff must do more than simply create a factual dispute as to the issue of pretext; he must offer sufficient evidence for a reasonable trier of fact to infer discrimination." Canning v. Creighton Univ., 995 F.3d 603, 612 (8th Cir. 2021) (cleaned up) (citing Smith v. URS Corp., 803 F.3d 964, 968 (8th Cir. 2015); Mathews v. Trilogy Commc'ns, Inc., 143F.3d 1160, 1165 (8th Cir. 1998)).
Black makes several arguments aimed at proving pretext. He first contends that his termination could not have been based on his refusal of a job assignment or unauthorized departure because he performed the two tasks Griffith assigned him on June 16th and then left the plant with Griffith's permission. While the details of Black's early departure are unclear on the present record, the question for purposes of the pretext analysis "is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge." Liles v. C.S. McCrossan, Inc., 851 F.3d 810, 821 (8th Cir. 2017) (quoting McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861-62 (8th Cir. 2009)).
The facts material to the good faith inquiry are not in genuine debate. Griffith reported Black's early departure to Human Resources personnel. The same morning, Swift Pork's Human Resources manager circulated an email to several members of Swift Pork management stating Black "had an argument with his supervisor and walked out today during [his] shift." HR Mgr. 6/16/20 Email—Def.'s App. 50, ECF No. 25-3. Boyd personally questioned Black regarding these allegations. To her recollection, Black admitted to leaving the plant because he was upset. Boyd Dep. 71:5-6—Pl.'s App. 44, ECF No. 36-4. She testified that her conversation with Black "was the determining factor" in her decision that he had violated company rules. Id. at 71:2-3. Black denies that he admitted any misconduct to Boyd. But even if he did not, there is no dispute that Boyd told Black she "wish[ed] [he] would have come by and talked to [her] before [he] left." Back Dep. 113:21-22—Pl.'s App. 23, ECF No. 36-4. It was Boyd's prerogative to weigh the evidence and determine whether Black had obtained necessary approval to leave the plant. Black has presented nothing to show Boyd's conclusion—right or wrong—was in bad faith. "This is not a case where the record in support of the employer's conclusion is so sparse, or the employer's conclusion so implausible, that [Black's] challenge to the merits of the decision can create a genuine issue about whether the employer's motivation was impermissible." Pulczinski, 691 F.3d at 1004 (internal quotation marks and alterations omitted) (quoting McCullough, 559 F.3d at 862).
Black next argues that pretext may be inferred from Swift Pork's inconsistent statements about his termination. He focuses on two emails Griffith sent to Boyd and other members of Swift Pork management describing Black's June 16th departure. The first email, which Griffith sent shortly after Black left, states that Black invoked the FMLA and "just walked out of the Plant." Griffith 6/16/20 Email—Def.'s App. 50, ECF No. 25-3. Griffith later revised this email to include details regarding Black's profanities and Griffith's instruction for Black to speak with Human Resources. See Griffith 6/22/20 Email-id. at 52.
Black also argues that Swift Pork has given inconsistent accounts about whether it was Boyd or Mach who decided to fire Black and whether Black's termination was effective on June 16th or July 6th. Swift Pork's statements about the mechanics of Black's termination have no bearing on Swift's reason for Black's termination, making these inconsistencies immaterial to the question of pretext.
"Substantial change in an employer's explanation over time can be evidence of pretext, but an elaboration generally is not." Pulczinski, 691 F.3d at 1004 (citations omitted). Griffith's emails are not an articulation of Swift Pork's reason for Black's termination, as there is no dispute that the decision to terminate Black's employment did not belong to Griffith. In any event, Griffith's second email was not inconsistent with the first; it merely elaborates the facts Griffith set out in the original email. Elaborations are not evidence of pretext. See, e.g., Wierman, 638 F.3d at 1001 (finding an employer's modification of the list of items the plaintiff stole was "not the kind of significant change that shows pretext for retaliation"); Smith, 302 F.3d at 835 (finding a CEO's testimony describing additional dimensions of an employee's nonperformance was an elaboration and "not probative of pretext").
Notably, Griffith testified consistently with both emails in his deposition. See Griffith Dep. 25:20-28:10—Def.'s App. 107, ECF No. 25-3.
Next, Black argues that Swift Pork's failure to follow its own termination policy raises an inference of pretext. Black asserts that company policy requires Swift Pork to provide employees a written notice stating the reasons for their termination. Boyd testified that this step was overlooked in Black's case. While substantial deviation from an employer's own policies can raise a question of pretext, minor noncompliance does not suffice—especially where the failure causes no prejudice to the employee. See Corkrean, 55 F.4th at 632 (finding a university's failure to conduct a formal investigation into the plaintiff's harassment complaint was only a "slight" deviation from policy, noting the employee had approved of an informal action plan). Black does not dispute that Boyd notified him of his termination by phone on the first business day following his meeting with Boyd and Mach. He also does not dispute that Boyd informed him that he had been terminated for his "actions on the 16th." Black Dep. 115:14—Def.'s App. 77, ECF No. 25-3. That explanation is consistent with the nondiscriminatory reason Swift Pork proffers now. In this context, failing to reduce Black's notice to writing was a minor deviation from policy and does not demonstrate pretext.
Finally, Black argues that a reasonable factfinder could draw an inference of pretext based on Swift Pork's past acts and practices. Black asserts that Swift Pork previously published daily employee absence figures on a display board in the Ottumwa plant, including the number of employees out on FMLA leave. Black also alleges that Swift Pork's compensation structure incentivized supervisors to discourage FMLA leave. For example, according to Black, Griffith played employees' FMLA-related voicemails in front of their coworkers. In addition, Black states that Swift Pork has been named as a defendant in at least ten other employment discrimination lawsuits since 2013. Black alleges that two of these actions involved employees who were terminated shortly after requesting FMLA leave.
"[A]n employer's past discriminatory policy and practice may well illustrate that the employer's asserted reasons for disparate treatment are a pretext for intentional discrimination." Dindinger v. Allsteel, Inc., 853 F.3d 414, 424 (8th Cir. 2017) (quoting Hawkins v . Hennepin Tech. Ctr., 900 F.2d 153, 155-56 (8th Cir. 1990)). However, the ultimate relevance of such evidence "depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case." Id. (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008)). Black has failed to show why Swift Pork's past policies and practices are probative of pretext in his case. Black provides no evidence that either Boyd or Mach was involved in the incidences he cites, nor is there any indication that these situations were close in time or circumstance to Black's termination. See Garang v. Smithfield Farmland Corp., 439 F. Supp. 3d 1073, 1095 (N.D. Iowa 2020) (finding "metoo" evidence could not establish pretext where, among other shortcomings, the plaintiffs "ha[d] not shown how close in time each of the alleged discriminatory acts occurred and they acknowledge[d] that different decision-makers were involved"). The fact that Swift Pork has been named in other lawsuits is particularly immaterial, absent evidence of the issues and outcomes in those cases. See id. (explaining plaintiffs' mere allegations of unrelated discriminatory acts "do not carry the same weight as past instances of proven discrimination").
In the final analysis, Black's arguments for pretext—both individually and collectively—fail to overcome the overwhelming support for Swift Pork's nondiscriminatory justification. Between January 2017 and June 2020, Swift Pork terminated 145 employees for walking off the job or leaving without permission. Despite his extensive use of FMLA leave, Black never suffered an adverse employment action until he, too, left the plant mid-shift. On this record, there can be no reasonable inference of pretext. See Chappell, 675 F.3d at 1120 (finding an employee's "numerous uses of FMLA leave without negative consequences" supported the employer's nondiscriminatory justification for termination); Burciaga v. Ravago Americas, LLC, 56 F. Supp. 3d 987, 1003 (S.D. Iowa 2014) (noting "the fact that [the plaintiff] had used FMLA leave twice previously without adverse action further erodes any evidence of pretext and the inference of discrimination related to such evidence"). Therefore, even if Black could establish a prima facie case, his FMLA discrimination claim would nevertheless fail.
III. CONCLUSION
For the reasons discussed above, Swift Pork's Motion for Summary Judgment, ECF No. 25, must be granted. This case is dismissed.
IT IS SO ORDERED.