Opinion
Civil Action No. 03-2348-GTV.
November 16, 2004
MEMORANDUM AND ORDER
Plaintiff Emily McKinzie brings this action against Defendant Sprint/United Management Company alleging violations of the Americans with Disabilities Act ("the ADA"), 42 U.S.C. § 12101et seq., and the Family and Medical Leave Act ("the FMLA"), 29 U.S.C. § 2601 et seq. Plaintiff claims that Defendant unlawfully regarded her as having a mental impairment that substantially limited her ability to work, constructively discharged her, interfered with her FMLA rights, and discriminated against her for taking approved FMLA leave. Defendant disputes these contentions, maintaining that Plaintiff does not have a disability as defined by the ADA, that she voluntarily resigned from her employment, that she was allowed to take her approved FMLA leave each time she requested, and that she was not treated differently because of her FMLA use. The case is before the court on Defendant's motion for summary judgment (Doc. 67). For the reasons set forth below, the motion is granted.
I. FACTUAL BACKGROUND
The following facts are either uncontroverted or are based on evidence submitted in summary judgment papers and viewed in a light most favorable to Plaintiff. Immaterial facts and facts not properly supported by the record are omitted.A. Introduction
Ms. McKinzie suffers from a panic disorder that affects her relationships at work and with her family. Ms. McKinzie estimates that she suffers about ten severe panic attacks a year that she is unable to control with medication. These full-blown attacks last approximately five to ten minutes and hinder her ability to function or make rational decisions. Ms. McKinzie also suffers from less severe panic attacks about three to four times per week. These milder attacks, however, are controllable with medication. Generally, when Ms. McKinize has a panic attack she becomes nervous and upset, and suffers shaking and breathing problems. She also claims depression as a component of her panic disorder.
Ms. McKinzie began employment with Sprint in October 1999 as a senior secretary. In January 2001, she became an Employee Relations Coordinator ("ER Coordinator") in Sprint's Human Resources Department. This position required Ms. McKinzie to support the Employee Relations Specialists ("ER Specialists") in her workgroup by preparing union contracts for printing, by maintaining a database on discipline, grievance, and termination for employees in Sprint's other departments ("the DGT database"), and by performing general clerical duties. During the period at issue in this lawsuit, Plaintiff primarily worked with Laura Hindman and Lisa Charlson, who were employed by Sprint as ER Specialists; Bill Stubbs, manager of Employee and Labor Relations at Sprint; and Dave Sapenoff, director of Sprint's Labor Relations. The record indicates that Ms. Hindman and Ms. Charlson were Ms. McKinzie's co-workers, while Mr. Stubbs was Ms. McKinzie's primary supervisor. The focus of Ms. McKinzie's claims concern the treatment she received from Ms. Hindman, Mr. Stubbs, and Mr. Sapenoff.
Ms. McKinzie's claims arise from the period she worked for Sprint as an ER coordinator, not as a senior secretary.
B. Ms. McKinzie's Problems Before She Requested FMLA Leave
In April 2001, before the time she disclosed her panic disorder or applied for FMLA leave, Ms. McKinzie began to experience problems with Ms. Hindman. For instance, Ms. McKinzie alleges that Ms. Hindman treated her like a secretary. Ms. McKinzie claims that Ms. Hindman asked her to organize and clean Ms. Hindman's cubicle and to refill the printer with paper. She also asserts that Ms. Hindman often corrected her, demeaned her and made rude comments to her. At one point, Ms. Hindman informed Ms. McKinzie that she should be her supervisor, not Mr. Stubbs.
Ms. McKinzie eventually discussed Ms. Hindman's behavior with Mr. Stubbs and Mr. Sapenoff. Mr. Stubbs responded by scheduling a few meetings between Ms. McKinzie and Ms. Hindman to discuss her concerns. Ms. McKinzie maintains that the meetings did not improve her relationship with Ms. Hindman. Instead, she claims that she had panic attacks as a result of these encounters, and that she felt that Mr. Stubbs did not handle her complaints appropriately. Ms. McKinzie also had a conversation with Mr. Sapenoff about Ms. Hindman. Mr. Sapenoff told her that he understood that Ms. Hindman could be a difficult person to work with, but that the situation would make her a stronger person by learning to deal with individuals like Ms. Hindman.
By July 2001, Ms. McKinzie's troubles reached the point that she called Sprint's Ethics Hotline to complain about Ms. Hindman. Ms. McKinzie states that the employees at the Ethics Hotline informed her that she had a personality conflict with Ms. Hindman and that she needed to handle it with her supervisor. Additionally, in October 2001, Mr. Stubbs asked Ms. McKinzie to start tracking her work time on a daily basis because Ms. Hindman complained that she was spending too much of her day working on personal matters.
C. Ms. McKinzie's Problems After She Requested FMLA Leave
On December 12, 2001, Ms. McKinzie requested a leave of absence under Sprint's Short Term Disability ("STD") policy. Sprint's Disability Management Group denied her request because she did not return her paperwork within the required fifteen-day timeframe. Sometime between December 2001 and February 2002, Ms. McKinzie first discussed her panic disorder with Mr. Stubbs. On March 29, 2002, at the suggestion of Mr. Stubbs, Ms. McKinzie applied for FMLA leave on an intermittent basis. Mr. Stubbs testified in his deposition that he recommended FMLA leave to her because she was beginning to have attendance problems. Based upon Ms. McKinzie's description of her condition, Mr. Stubbs believed that she might qualify for FMLA leave. He told Ms. McKinzie that FMLA leave could protect her from any adverse actions that could result from enforcement of Sprint's strict attendance policy.
Sprint approved Ms. McKinzie's application for FMLA leave, and allowed her to leave work on an intermittent basis whenever she believed that she was experiencing a panic attack. She testified in her deposition that Sprint allowed her to take her FMLA leave every time she felt that she needed to leave the workplace.
In April 2002, Ms. Hindman first became aware that Ms. McKinzie had become certified for FMLA leave. In May 2002, Ms. McKinzie requested a meeting with Mr. Stubbs, Ms. Hindman, and Ms. Charlson because she wanted to inform them that her panic disorder was the reason she was taking FMLA leave. At the meeting, Ms. McKinzie explained to her workgroup about her panic disorder history and described to them how she responded during such an attack. Ms. McKinzie stated that although Ms. Charlson reacted empathetically, Ms. Hindman shook her head in disbelief, rolled her eyes, and stated, "No way . . . I have known people with [panic attacks] before and this is not how it is." Later that day, Ms. McKinzie also testified that she overheard Ms. Hindman telling Mr. Stubbs in his office that "she's not telling the truth."
From this time on, Ms. McKinzie alleges that she was treated differently by Ms. Hindman, Mr. Stubbs, and Mr. Sapenoff because of her panic disorder and FMLA leave. First, she asserts that she began to experience harassment from Ms. Hindman due to her disclosure. Ms. McKinzie claims that Ms. Hindman became frustrated or angry if she had to leave work because then certain work projects would not get completed. Specifically, she states that Ms. Hindman would make comments at staff meetings and at private meetings between Mr. Stubbs, Ms. Hindman and her to the effect that "she's just not here," "the work just [isn't] getting done," and that Ms. McKinzie was not a good employee. Ms. McKinzie also points out that Sara Donnelly, an employee who officed near Ms. Hindman, heard Ms. Hindman, Mr. Stubbs and Ms. Charlson make comments about Ms. McKinzie when she was gone from work. For example, Ms. Donnelly testified that she would hear them say in a sarcastic tone "[Emily's] not feeling well" on days that she was gone, implying in Ms. Donnelly's opinion that they did not believe she was having a panic attack and was just taking time off from work.
Ms. McKinzie stated in her deposition that she felt that Mr. Stubbs was not helping her handle Ms. Hindman's harassment. Moreover, although she testified that Mr. Stubbs never made any inappropriate comments to her about FMLA leave or her panic attacks, she believed that he unfairly made her keep track of her time at work even after Sprint approved her FMLA leave. Finally, Ms. McKinzie questioned Mr. Stubbs's request in early August 2002 that she have her FMLA leave recertified. Mr. Stubbs had noted that she was leaving work more often than the six panic attacks per year documented in her initial FMLA certification.
In August 2002, Ms. McKinzie took a two week leave from work based on her doctor's recommendation.
Ms. McKinze also testified that she was not receiving any assistance from Mr. Sapenoff concerning her problems with Ms. Hindman. She specifically points to a second conversation she had with Mr. Sapenoff during the period that Sprint had approved her intermittent FMLA leave. She testified that Mr. Sapenoff told her on this occasion that he did not want to discuss the situation with her because she had an attendance problem. Ms. McKinzie noted that Mr. Sapenoff was more receptive to her concerns when they first discussed her situation with Ms. Hindman than he was on this occasion.
D. The End of Ms. McKinzie's Employment with Sprint
On September 20, 2002, Ms. Hindman directed Ms. McKinzie to run a report from the DGT database concerning an issue for Sprint's legal team. Ms. McKinzie attempted to e-mail the report to Ms. Hindman on September 23, but forgot to attach the report. Ms. Hindman e-mailed Ms. McKinzie to inform her of the omission and shortly thereafter, Ms. McKinzie left work. An e-mail from Ms. Hindman to Mr. Stubbs describes Ms. Hindman's view of the situation:
Bill, five to ten minutes after I sent this email to Emily [regarding her failure to attach the report], she left for the day (shaking). I had no conflicts with her. Lisa had no issues with her. This is simply a case of her not being able to handle work. If I give her stuff, she becomes unable to do her job and leaves. Now, I still don't have the info I needed to provide to Legal today. That is why I don't like giving her something to do. It ends up back on my desk and a deadline not met.
This project, however, was something I needed her to do because the info is on DGT.
In his deposition, Mr. Stubbs stated that Ms. McKinzie provided some inaccurate information for the report, and thus, did not adequately perform on the project. Ms. Hindman finished it on her own.
On October 3, 2002, Mr. Stubbs informed Ms. McKinzie that he needed to have a meeting with her and Ms. Hindman concerning her work performance. Ms. McKinzie responded that she did not want to be in the same room with Ms. Hindman because it made her upset and it would likely cause a panic attack. Mr. Stubbs again communicated to Ms. McKinzie that she needed to be present at the meeting and that he would consider it insubordination if she did not attend. Ms. McKinzie agreed and reserved a conference room for the meeting.
In the conference room, Ms. McKinzie testified that Ms. Hindman produced some of Ms. McKinzie's past projects to illustrate some problems with her work performance. As a result, Ms. McKinzie stated that she felt attacked, became upset, and requested that Mr. Sapenoff attend the meeting. When Mr. Sapenoff arrived, he stated that work performance issues needed to be handled between Ms. McKinzie, Ms. Hindman, and Mr. Stubbs. At some point in the meeting, Ms. McKinzie announced that she could not work in a hostile environment and that she was resigning. She left the conference room, went to her cubicle, and began packing her personal belongings. Mr. Stubbs came to Ms. McKinzie and asked her to join him back in the conference room. He then informed her that the decision to resign was hers, but that she should take the rest of the day to think about it because she was too emotional to make a decision at that time. He told her to let him know of her decision the next day. Ms. McKinzie asked Mr. Stubbs if she would be fired for her behavior. He replied that he would not fire her for her actions, but that her behavior was inappropriate and would need to be addressed. Ms. McKinzie then communicated to Mr. Stubbs that she would rather clean toilets than stay at Sprint, and that she would send him a resignation letter. After the conversation, she packed her personal items and left the office. She never sent Mr. Stubbs a resignation letter. Since her time at Sprint, Ms. McKinzie has held several jobs without any problems or complaints.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. ANALYSIS A. ADA
For Plaintiff to prevail under her ADA claim, she must prove that: "(1) she is a disabled person within the meaning of the ADA; (2) she is qualified to perform the essential functions of the job, with or without accommodation; and (3) the employer terminated her employment under circumstances which give rise to an inference that the termination was based on her disability."Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 878 (10th Cir. 2004) (citing Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir. 1997)). Defendant claims that Plaintiff has failed to prove the first and third elements of her prima facie case of ADA discrimination. The court agrees.
For purposes of this motion, Defendant does not dispute the second element.
1. Regarded as Disabled
A person is considered to have a "disability" under the ADA if she: (1) has a physical or mental impairment that substantially limits one or more of her major life activities; (2) has a record of such impairment; or (3) is regarded by the employer as having such an impairment. Tate v. Farmland Indus., Inc., 268 F.3d 989, 992 (10th Cir. 2001) (quoting 42 U.S.C. § 12102(2)). Although Plaintiff originally claimed that she had an actual disability and/or a record of disability, she has since abandoned those claims. Plaintiff proceeds solely on the ground that she qualifies as "disabled" because Defendant regarded her as having an impairment that substantially limited a major life activity.
With the "regarded as" provision, Congress sought to protect those discriminated against based on "myths, fears and stereotypes." 29 C.F.R. pt. 1630, App. § 1630.2( l); see also Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987). A person is regarded as disabled if either of the following requirements is met:
(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). Thus, Plaintiff can only survive summary judgment if she presents triable evidence that Defendant regarded her as substantially limited in one or more of her claimed major life activities.Rakity v. Dillon Cos., Inc., 302 F.3d 1152, 1162 (10th Cir. 2002).
"To be substantially limited in a major life activity, `an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.'" McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002)). Plaintiff maintains that her supervisors and co-workers "regarded" her as substantially limited in her ability to work. "When the major life activity under consideration is that of working, the statutory phrase `substantially limits' requires, at a minimum, that plaintiffs allege that they are unable to work in a broad class of jobs." Sutton v. United Air Lines, 527 U.S. 471, 491 (1999). Moroever, the Equal Employment Opportunity Commission's regulations provide that
Both the pre-trial order and Plaintiff's response brief indicate that Plaintiff is only claiming that Defendant regarded her as substantially limited in her ability to work. Based on Plaintiff's deposition testimony that her panic disorder affects her relationships with her co-worker and family, Defendant's brief also evaluates whether Plaintiff was substantially limited in her ability to interact with others. The court will not consider this major life activity because the law instructs the court to "analyze only the major life activity asserted by the plaintiff." Poindexter, Atchison, Topeka Sante Fe Ry. Co., 168 F.3d 1228, 1231 (10th Cir. 1999).
the term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.29 C.F.R. § 1630.2(j)(3)(i).
Defendant contends that the evidence, at best, shows that Plaintiff could not perform her position as an ER Coordinator at Sprint. Noticeably absent, Defendant argues, is any evidence demonstrating that Defendant regarded her as unable to perform a class or broad range of jobs. In response, Plaintiff asserts that the record contains sufficient evidence establishing that Plaintiff's superiors and co-workers regarded her as substantially limited in her ability to work. In support, Plaintiff directs the court to the e-mail Ms. Hindman sent to Mr. Stubbs on September 23, 2002, which criticized Plaintiff for "not being able to handle work" and being "unable to do her job." Plaintiff also cites to Ms. Donnelly's deposition, targeting the fact that Ms. Donnelly overheard Ms. Hindman and Mr. Stubbs make sarcastic remarks about Plaintiff's absences from work. The court is not persuaded by Plaintiff's arguments.
The court determines that no reasonable trier of fact could conclude from the evidence that Defendant regarded Plaintiff's panic disorder as substantially limiting her ability to work in a broad range or class of jobs. First, Plaintiff fails to demonstrate to the court how Ms. Hindman's derogatory, sarcastic and mean-spirited comments concerning Plaintiff's work performance establishes that her employer regarded her as disabled. See Rakity, 302 F.3d at 1163 (noting that the views of a non-decision maker were immaterial to the plaintiff's claim that his employer "regarded" him as incapable of lifting weight);Lanman v. Johnson County, Kan., No. 02-2301-CM, 2003 WL 23498390, at *6 (D. Kan. Sept. 23, 2003) (citation omitted) (observing that the "plaintiff provide[d] no legal authority to explain why the comments of fellow deputies show that defendant, her employer, considered her disabled"). In fact, Ms. Hindman's comments suggest to the court that she did not believe that Plaintiff suffered from a panic disorder and, therefore, she viewed Plaintiff's panic attacks as not disabling.
Second, Mr. Stubbs's treatment of Plaintiff falls short of suggesting that he regarded her as disabled in a major life activity. Mr. Stubbs became aware of Plaintiff's panic disorder between December 2001 and February 2002. He encouraged Plaintiff to apply for FMLA leave based on the information she disclosed to him about her panic attacks. Nonetheless, Mr. Stubb's awareness of Plaintiff's panic disorder and his belief that she should apply for FMLA leave does not establish a "regarded as" claim under the ADA. See Bost v. Headco Indus., Inc., No. 02-2182-GTV, 2003 WL 21939020, at *5 (D. Kan. Aug. 4, 2003) (citing Steele v. Thiokol Corp., 241 F.3d 1248, 1256 (10th Cir. 2001) (stating that "mere knowledge of Plaintiff's impairment is insufficient to establish that Defendant regarded Plaintiff as disabled")); Ruggles v. Keebler Co., 224 F. Supp. 2d 1295, 1302 (D. Kan. 2002) (citation omitted) (determining that an employer's recommendation to apply for disability insurance did not support the plaintiff's "regarded as" claim because "`disability is a term of art under the ADA'"); Gazaway v. Makita U.S.A., Inc., 11 F. Supp. 2d 1281, 1288 (D. Kan. 1998) (holding that the fact that the employer encouraged an employee to seek counseling established only that the employer was sympathetic to the employee's experience, not that the employer regarded the employee as disabled); Ellis v. Mohenis Servs., Inc., No. 96-6307, 1998 WL 564478, at *5 (E.D. Penn. Aug. 24, 1998) (noting that "[w]hether the defendants believed the plaintiff was eligible for FMLA leave, or believed the taking of such leave was proper under the circumstances, does not demonstrate that they regarded him as disabled" because "an employee who has a `serious health condition' for purposes of the FMLA is not necessarily `disabled' under the ADA").
Plaintiff's other complaints about Mr. Stubbs — that he continued to ask her to keep track of her time at work after she was approved for FMLA leave and that he required her to attend the October 3, 2002, meeting with Ms. Hindman — do not establish a reasonable inference that he regarded her as disabled in a broad range of jobs. At most, they demonstrate his perception that Plaintiff had time management and work performance issues that needed to be addressed in her particular job. See Lanman, 2003 WL 23498390, at *6 ("An employer's expressed concern over an employee's job performance, by itself, is not the same as regarding an employee as disabled for purposes of the ADA."). Furthermore, his request that Plaintiff get her FMLA recertified was authorized by Sprint's FMLA policy and the FMLA, see 29 U.S.C. § 2613(e), and is not a proper basis to infer that Mr. Stubbs regarded her as disabled.
Finally, the conduct cited by Plaintiff regarding Mr. Sapenoff — his unwillingness to discuss Plaintiff's concern about Ms. Hindman because he viewed Plaintiff as having an attendance problem — does not demonstrate that he regarded her as disabled.
In sum, the court concludes that Plaintiff has failed to present sufficient evidence suggesting that Defendant regarded her as disabled, i.e., that Defendant believed that her panic disorder substantially limited her ability to work in a broad range of jobs. The evidence leads to the conclusion that Plaintiff was unable to successfully function in the same Human Resources department as Ms. Hindman. This statement is supported by the fact that between October 1999 and January 2001, Plaintiff worked for Sprint as an administrative assistant without any problems or complaints, and since she has been gone from Sprint, Plaintiff has held several positions without any problems or complaints. Because Plaintiff is unable to establish her prima facie case, the court must grant summary judgment as to her ADA claim.
2. Constructive Discharge
Alternatively, Plaintiff's ADA claim fails because she cannot prove that she was terminated, or that she suffered an adverse employment action, by Defendant. Plaintiff attempts to satisfy this element of her ADA claim by maintaining that Defendant constructively discharged her. The summary judgment record provides no support for this contention."A constructive discharge occurs when a reasonable person in the employee's position would view her working conditions as intolerable and would feel that she had no other choice but to quit." Tran v. Trs. of the State Colls. in Colo., 355 F.3d 1263, 1271 (10th Cir. 2004) (citations omitted). This is an objective test, and thus, "an employee's subjective feelings or beliefs are not relevant in a constructive discharge claim."Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 858 (10th Cir. 2000) (citation omitted). "If an employee resigns of her own free will, even as a result of the employer's actions, that employee will not be held to have been constructively discharged."Jeffries v. Kansas, 147 F.3d 1220, 1233 (10th Cir. 1998) (citation omitted). "The question is not whether the employee's resignation resulted from the employer's actions, but whether the employee had any other reasonable choice but to resign in light of those actions." Tran, 355 F.3d at 1270 (citation omitted).
Defendant asserts that Plaintiff's claim for constructive discharge fails because the evidence establishes that Plaintiff voluntarily resigned on October 3, 2002, during her meeting with Mr. Stubbs, Ms. Hindman, and Mr. Sapenoff. Plaintiff responds in a conclusory fashion, arguing that she has produced enough "evidence to support a jury finding that `a reasonable person in [her] position would have felt compelled to resign." The court agrees with Defendant.
No trier of fact could reasonably conclude that Defendant's actions constituted constructive discharge. The record reveals that Mr. Stubbs requested Plaintiff to attend a meeting with him and Ms. Hindman to discuss her work performance on a recent project assigned by Ms. Hindman. Although expressing her reservations about being in the same room with Ms. Hindman, Plaintiff attended. During the meeting, she felt attacked by Mr. Stubbs and Ms. Hindman, and wanted Mr. Sapenoff to be present. Once Mr. Sapenoff arrived, he informed Mr. Stubbs that Mr. Stubbs needed to resolve the work performance issues on his own. Mr. Sapenoff testified in his deposition that at some point Plaintiff shouted something to the effect that she could not work in a hostile environment and that she wasn't going to take it anymore, and she quit. Plaintiff's subjective feelings, however, are not relevant to the court's analysis. It is uncontroverted by Plaintiff that shortly after she left the meeting and went to her cubicle to pack her belongings, Mr. Stubbs asked to speak with her. In their conversation, Mr. Stubbs informed Plaintiff that she was too emotional and needed to take some time to make such a decision. Mr. Sapenoff also testified that he told Plaintiff that the purpose of the meeting was not to terminate her, but to discuss a performance deficiency. Plaintiff specifically asked Mr. Stubbs whether he would fire her when she returned. He told her that she would not be fired, but that he would still have to address her behavior. Despite this information, Plaintiff left and never returned to Sprint.
Based on this evidence, a reasonable jury could not conclude that Plaintiff "had `no other choice but to quit.'" Lighton v. Univ. of Utah, 209 F.3d 1213, 1222 (10th Cir. 2000) (citation omitted). Mr. Stubbs provided Plaintiff with an alternative to resignation by allowing her to go home, calm down, and take a reasonable time to reconsider her decision. Plaintiff understood this option. She inquired of Mr. Stubbs as to whether she would be fired if she returned. He told her that was not the case, although he would still have to deal with her actions. See id. (listing factors a court may consider when evaluating the voluntariness of a resignation). The record indicates that other employees at Sprint found Ms. Hindman difficult to work with, but that fact does not compel the conclusion that Plaintiff's working conditions were so intolerable that she was forced to quit. Accordingly, Plaintiff's ADA claim also fails on these grounds.
B. FMLA
The FMLA provides eligible employees up to twelve weeks of leave during any twelve month period so that they may care for a relative, welcome a new child, or "because of a serious health condition." 29 U.S.C. § 2612(a)(1)(A)-(D). Moreover, the FMLA contains substantive protections for employees who request FMLA leave or otherwise assert a right under the FMLA. In particular, § 2615(a)(1) prohibits employers from interfering with, restraining, or denying an employee's exercise or attempted exercise of his or her FMLA rights, while § 2615(a)(2) prohibits employers from discharging or discriminating against an employee who opposes any practice made unlawful by the FMLA. 29 U.S.C. § 2615(a)(1), (2). The Tenth Circuit recognizes both causes of action as the entitlement/interference theory and the retaliation/discrimination theory. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002). Here, Plaintiff maintains that she is entitled to recover under both theories.
1. Entitlement/Interference Theory
"The `entitlement' or `interference' theory is derived from the FMLA's creation of substantive rights. If an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave, a violation has occurred."Arban v. West Publ'g Corp., 345 F.3d 390, 401 (6th Cir. 2003) (citation omitted). This is true regardless of the employer's intent. Smith, 298 F.3d at 960 (citation omitted).
"A plaintiff can prevail under an entitlement theory if she was denied her substantive rights under the FMLA for a reason connected with her FMLA leave." Id. at 961. Thus, "a prima facie case under [this theory] requires a showing of FMLA leave entitlement, a denial of substantive rights under the FMLA, and a causal connection between the two." Dry v. Boeing Co., 92 Fed. Appx. 675, 678 (10th Cir. 2004) (citing Smith, 298 F.3d at 961).
The FMLA does not define "interference," but the regulations promulgated by the Department of Labor provide that "`[i]nterfering with' the exercise of an employee's rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." 29 C.F.R. § 825.220(b). Thus, when an employer's actions provide a strong disincentive against an employee taking FMLA leave, the employer violates the FMLA. See Liu v. Amway Corp., 347 F.3d 1125, 1134 (9th Cir. 2003) (employer interfered with the length and dates of FMLA leave); Mardis v. Cent. Nat'l Bank Trust of Enid, No. 98-6056, 1999 WL 218903, at *2 (10th Cir. Apr. 15, 1999) (employer threatened to take away an employee's "accrued sick leave and annual leave as a condition of taking" FMLA leave); Goodwin-Haulmark v. Menninger Clinic, Inc., 76 F. Supp. 2d 1235, 1242 (D. Kan. 1999) (employer forced the employee to choose between resignation and working without FMLA leave).
Defendant contends that the record does not support Plaintiff's claim under the FMLA's entitlement/interference theory because Plaintiff's own testimony supports the fact that Defendant allowed Plaintiff to take FMLA leave each time she requested it. In support, Defendant cites the following testimony from Plaintiff's deposition:
Q. Every time that you applied for FMLA at Sprint through this policy, that leave was granted to you, true?
A. Yes, it was.
Q. Every time you felt like you needed to leave the workplace or requested to leave the workplace you were always allowed to do that?
A. Yes, I was.
In response, Plaintiff contends that Defendant misunderstands her interference claim. Plaintiff argues that she is not maintaining that Defendant denied her FMLA leave, but that Defendant interfered with her exercise of rights under the FMLA. Plaintiff further argues that genuine issues of material fact exist as to her FMLA entitlement/interference claim. In support, she directs the court to the following: (1) that despite Plaintiff's approval for FMLA leave whenever she began to experience a panic attack, Ms. Donnelly testified that Mr. Stubbs and Ms. Hindman would make sarcastic and derogatory comments about Plaintiff taking time off from work when she was gone; (2) that Mr. Stubbs asked Plaintiff to get her FMLA recertified in the Fall of 2002; (3) that Mr. Stubbs continued to have Plaintiff keep track of her work time even after Plaintiff took FMLA leave; (4) the e-mail Ms. Hindman sent to Mr. Stubbs on September 23, 2002, detailing her problems with Plaintiff's recent work performance; and (5) that Mr. Stubbs told Plaintiff that she needed to attend the October 2002 meeting with him and Ms. Hindman, even though Plaintiff advised him that she did not want to attend because she would experience a panic attack. The court determines that these facts do not create genuine issues requiring submission of Plaintiff's entitlement/interference claim for trial.
The court concludes that no reasonable trier of fact could find that Defendant interfered with Plaintiff's FMLA rights. Plaintiff's own statements demonstrate that she felt that Defendant allowed her to take FMLA leave each time she needed to do so. This testimony, alone, overshadows any inference that the comments or conduct of Plaintiff's supervisors and coworkers discouraged her from taking FMLA leave. The record lacks evidence that Plaintiff felt discouraged from taking FMLA leave, or that Defendant's conduct created any kind of chilling effect that caused Plaintiff to feel that she needed to stay at work rather than take FMLA leave. As late as August 2002, Plaintiff took FMLA leave for two weeks based on her doctor's recommendation. Also, Ms. Hindman's e-mail to Mr. Stubbs complaining that Plaintiff left work whenever she was assigned a project by Ms. Hindman does not provide evidence that Defendant interfered with Plaintiff's FMLA rights. If anything, it supports the conclusion that even two weeks before Plaintiff resigned, Plaintiff did not feel restricted from taking her FMLA leave.
Finally, Plaintiff appears to argue that Defendant interfered with her FMLA rights when Mr. Stubbs told her to attend the October 3, 2002, work performance meeting, despite the fact that Plaintiff told him that she would experience a panic attack as a result. The fact that Defendant had approved Plaintiff for FMLA leave did not prohibit Defendant from criticizing her work performance. See McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1108 (10th Cir. 2002) (stating that "the FMLA does not protect an employee from performance problems caused by the condition for which FMLA leave is taken").
In sum, none of the facts Plaintiff brings to the court's attention creates a genuine issue of material fact as to Plaintiff's FMLA entitlement/interference claim. Defendant encouraged, not discouraged, Plaintiff to apply for FMLA leave and permitted her to take leave from her employment whenever she requested. Accordingly, Defendant's motion for summary judgment is granted as to Plaintiff's FMLA entitlement/interference claim.
ii. Retaliation/Discrimination Theory
Plaintiff also claims that Defendant discriminated against her and treated her differently because she took approved FMLA leave. To establish a violation under the FMLA's retaliation/discrimination theory, Plaintiff must show "that (1) she availed herself of a protected right under the FMLA; (2) she was adversely affected by an employment decision; and (3) there is a causal connection between the two actions." Morgan, 108 F.3d at 1325; see also 29 C.F.R. § 825.220(c) (stating that "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. . . ."). Defendant contends that this claim fails because the alleged negative conduct that Plaintiff complains of began months before she applied for FMLA leave, and thus, the conduct could not have been motivated by Plaintiff's FMLA leave. The court agrees. In addition, the court holds that Plaintiff's retaliation/discrimination claim fails because Plaintiff has not shown that she was adversely affected by an employment decision. Specifically, no significant change in her employment status materialized when she worked as an ER coordinator with Sprint. See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998) (citation omitted).
As discussed before, the record demonstrates that Plaintiff voluntarily resigned from her position at Sprint. Defendant did not constructively discharge her. Moreover, it is uncontroverted that Mr. Stubbs never placed Plaintiff on formal corrective action at any time during her employment as an ER Coordinator. He preferred to utilize informal "coaching" to discuss issues between an employee and supervisor. Again, Plaintiff's concerns arise from her strained relationship with Ms. Hindman, as she viewed Ms. Hindman's comments as creating a hostile work environment for her. Plaintiff's ongoing conflict with Ms. Hindman, however, does not equate to an adverse employment decision against Plaintiff. Accordingly, the court grants Defendant's motion for summary judgment as to Plaintiff's retaliation/discrimination claim under the FMLA.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion for summary judgment (Doc. 67) is granted.
Copies of this order shall be transmitted to counsel of record.
The case is closed.
IT IS SO ORDERED.