MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Defendant's motion for summary judgment.
Plaintiff began her employment with Defendant Group Health Plan, Inc. ("GHP") in October 2004 at the Healthpartners Coon Rapids Clinic (the "Clinic") as a certified medical assistant. (Wilk Aff. Ex. 8 (Bloom Dep. at 167); Laine Aff. ¶ 2.) The Clinic is a primary care facility, which offers family practice, pediatric care, OB/GYN and general surgery services. (Kuhlman Aff. Ex. 2 (Laine Dep. at 22).)
Plaintiff was supervised by Ruth Laine, the Care Delivery Site Manager at the Clinic. (Laine Aff. ¶ 2.) During her employment with GHP, Plaintiff generally received positive performance reviews. (Kuhlman Aff. Ex. 4.) She did receive one write-up around 2005 for forwarding a work email to her home email address. (
Plaintiff is a married mother of three children. Plaintiff requested and was granted FMLA leave in November 2006 with regard to the birth of her first child. She also requested and was granted FMLA leave in August 2009 with regard to the birth of her second child. (Laine Aff. Exs. 3 and 4.)
In March 2012, Plaintiff learned that she was again pregnant. She was anxious to tell Laine about the pregnancy because there were two other employees that were pregnant and would need time off at the same time as Plaintiff. When Plaintiff did tell Laine about the pregnancy, Laine is alleged to have said "I thought you were done having kids." (Wilk Aff. Ex. 8 (Bloom Dep. at 9-10).) Laine denies making this statement. (
Plaintiff further asserts she suffers from Crohn's disease, therefore pregnancy was considered high risk and her doctor wanted to conduct an ultrasound. When Plaintiff put in the request to take off two hours for the ultrasound appointment, three of her co-workers had agreed to cover her two hour absence, but her request was nonetheless denied. (
GHP asserts that although Plaintiff did make such a request, lead nurse Brie Nightingale, not Laine, handled Plaintiff's request. (Wilk Aff. Ex. 13 (Nightingale Dep. at 31); Ex. 12 (Laine Dep. at 155) (testifying that Nightingale handled the request, and that she did not need Laine's approval before granting time-off requests.) GHP further asserts that because the Clinic was short-staffed during the time Plaintiff sought time off, Plaintiff may have been asked to reschedule the appointment. (Wilk Aff. Ex. 12 (Laine Dep. at 154-55).) Ultimately, Plaintiff did reschedule the appointment for two weeks later. (Kuhlman Aff. Ex. 1 (Bloom Dep. at 25-26).)
Plaintiff gave birth to her son on July 20, 2012, and began her third FMLA leave on July 23, 2012. (Laine Aff. ¶ 5, Ex. 5.) While on leave, Plaintiff visited the Clinic on a few occasions. During the first visit, Plaintiff obtained some Vaseline samples from the Clinic. (Wilk Aff. Ex. 8 (Bloom Dep. at 97).) During a later visit, Plaintiff also obtained some sample bottle nipples as the baby was having trouble eating. (
On August 6, 2012, Brie Nightingale reported to Laine that she had concerns that Plaintiff had taken formula samples and other supplies such as Vaseline and baby bottle nipples, from the Clinic. (Wilk Aff. Ex. 12 (Laine Dep. at 55); Ex. 13 (Nightingale Dep. at 35).) Nightingale made the report after having seen formula samples pile up on Plaintiff's desk before she went on leave and after overhearing a conversation between Plaintiff and Cassie Murphy — when Plaintiff visited the clinic while on leave — during which Murphy joked that Plaintiff had a year's supply of formula at home and Plaintiff replied by agreeing with Murphy and by laughing. (
After hearing Nightingale's report, Laine contacted Jerry Jones, an HR consultant, and Becky Armstrong, a Corporate Integrity liaison for GHP. (
Plaintiff came into the Clinic on August 29, 2012 to speak with Laine, and was accompanied by a union representative, Pam Ganser. (Wilk Aff., Ex. 12 (Laine Dep. at 74).) During this meeting, Plaintiff admitted that she had taken at least six cases (36 cans) of formula samples. (
After this meeting, Laine talked with Hemmesch, who told her that she had never brought in formula specifically for Plaintiff. (
Laine reported to management what she had learned during her investigation of the claims against Plaintiff. Based on that information, Laine, Kellett and Jones agreed that Plaintiff's employment should be terminated as taking supplies from the Clinic violated the Clinic's Code of Conduct. (Laine Aff. ¶ 7.) On September 11, 2012, Plaintiff was informed that her employment was terminated. (
It is Plaintiff's position that her termination was unfair given her belief that other employees routinely took supplies home from the clinic. Plaintiff did not inform Laine of these other employees, because Laine never asked. (Kuhlman Aff. Ex. 1 (Bloom Dep. at 66-70).) Plaintiff claims that had she known taking the samples was against company policy, she would not have done so. (
Plaintiff filed a union grievance. The grievance was heard on September 18, 2012 and Plaintiff was represented by union steward Mary Savage. (
Plaintiff pursued her grievance, and on October 8, 2012, Plaintiff presented her claim for reinstatement, claiming that she did not know that taking the formula could lead to her termination. (Kellett Aff. Ex. 2.) The grievance was again denied. (
Plaintiff brought this action, asserting claims of interference with her rights under the FMLA, retaliation under the FMLA and gender discrimination. In response to GHP's motion for summary judgment, Plaintiff indicated that she is voluntarily withdrawing her gender discrimination claim.
Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Under the FMLA, an employee is entitled to twelve weeks of leave during any twelve month period because of the birth of a child. 29 U.S.C. § 2612 (a)(1)(A). In addition, the FMLA provides that it is unlawful for an employer to retaliate against an employee for exercising her rights under the FMLA. 29 U.S.C. § 2615(a)(2). Plaintiff alleges that she was retaliated against because she exercised her rights under the FMLA after her third child was born. To prove her claim, Plaintiff must show that 1) she engaged in protected conduct; 2) she suffered a materially adverse employment action; and 3) the adverse employment action is causally connection to protected activity.
If Plaintiff makes a prima facie showing, the burden shifts to GHP to articulate a legitimate, non-discriminatory reason for the adverse action.
Plaintiff asserts that she has established a prima facie case of retaliation. Plaintiff submitted her request for FMLA leave on July 18, 2012, and her leave began on July 23, 2012. In August 2012, she was the subject of an investigation concerning her taking samples from the Clinic for her personal use, and on September 12, 2012, she was terminated. Plaintiff further claims that before she went on leave, Laine made a discriminatory comment about her pregnancy and took escalating adverse actions against her. Together, she argues, this evidence supports an inference that there is a causal connection between her protected activity and her termination.
The Court finds that for purposes of analyzing the temporal proximity between protected activity and an adverse employment action, the relevant inquiry is when the employer had knowledge of the protected activity.
The Court further finds that Laine's alleged discriminatory comment and standoff attitude towards Plaintiff do not raise an inference of causation between her protected conduct and her termination. The law is clear that stray comments, petty slights or a standoff attitude are not actionable retaliation.
With regard to her claims that Laine singled out Plaintiff about texting at work and internet use, the Court finds that these allegations constitute only minor annoyances and not conduct that would dissuade a reasonable employee from making a charge of discrimination, in light of the fact that Plaintiff was not disciplined for texting or violating internet policy.
Accordingly, the Court finds that summary judgment in favor of GHP is appropriate on her retaliation claim, as Plaintiff has failed to demonstrate a genuine issue of material fact with respect to a causal connection between her protected conduct and her termination.
The Court further finds that summary judgment is appropriate on this claim as Plaintiff has also failed to demonstrate pretext. GHP has articulated a legitimate, non-discriminatory reason for terminating Plaintiff's employment — because she had taken samples from the Clinic for her personal use in violation of the Clinic's Code of Conduct.
The Code of Conduct provides that employees should not accept gifts if doing so would create even an appearance of impropriety, undue influence by the giver or preferential treatment by GHP to the giver. (Kellett Aff., Ex. 1 at GHP 00657.) The Code further provides that an employee "may not accept any item or service worth more than $75 that is primarily intended for your personal use." (
Plaintiff admits that she took at least six cases of formula samples, Vaseline and baby bottles nipples from the Clinic for her personal use, and that taking items worth more than $75 dollars violates the Clinic's Code of Conduct. Plaintiff nonetheless argues that summary judgment should be denied because she was not treated like similarly-situated employees that also took home formula samples.
Plaintiff claims that many other employees took home samples for their personal use, and were not disciplined as a result. Plaintiff informed Laine of this fact during the investigation of Plaintiff's conduct, yet Laine did not investigate to determine whether in fact other employees were taking home clinic supplies and samples. Plaintiff further claims that other employees used Clinic samples or supplies right in front of Laine, and that Laine did not discipline them.
The only evidence Plaintiff points to in the record to support this assertion, however, is her deposition testimony that one of the Clinic doctors took Tums right in front of Laine. (Kuhlman Aff. Ex. 1 (Bloom Dep. at 108).) There is no evidence in the record that Laine was the supervisor of the doctor that had taken Tums from Clinic supply in front of her. In addition, taking Tums on one occasion does not qualify as the same conduct for which Plaintiff was terminated.
With respect to the claim that Laine knew that other employees had taken formula, Laine denies that she saw any Clinic employee take formula samples from the Clinic for personal use. (Wilk Aff. Ex. 12 (Laine Dep. at 83.) She did admit that during the investigation of Plaintiff, two employees told her they had taken formula samples in the past. (
One of these employees stated that she was at another clinic when she took home the sample. (
Based on the above, the Court finds that Plaintiff has failed to demonstrate there are fact questions as to whether similarly-situated employees were treated more favorably than Plaintiff. As a result, Plaintiff has failed to demonstrate there are fact questions as to whether the reason given for Plaintiff's termination was pretextual.
Under the FMLA, it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided [thereunder]." 29 U.S.C. § 2615(a)(1). To prove an interference claim, Plaintiff must show that she was denied substantive rights under the FMLA for a reason connected with FMLA leave.
GHP argues it is entitled to summary judgment on this claim as it has demonstrated that Plaintiff was terminated for reasons unrelated to her FMLA leave. There is no dispute that GHP did not learn that she was taking formula and other clinic supplies until she was already on maternity leave. At the time GHP learned that Plaintiff had taken large quantities of formula samples home, GHP also learned that Plaintiff had visited the clinic on three occasions during her leave, and that she took clinic supplies home with her after each visit. GHP asserts that such conduct violates the company's Code of Conduct. After investigation, the decision was made to terminate Plaintiff's employment. Despite Plaintiff's claims to the contrary, there is no evidence that GHP knowingly tolerated similar conduct from other employees.
Plaintiff asserts that a discharge of an employee while on leave interferes with that employee's FMLA rights. "However, the mere fact of discharge during FMLA leave by no means demands an employer be held strictly liable for violating the FMLA's prohibition of interfering with an employee's FMLA rights."
The Court finds that Plaintiff should not be shielded from wrongdoing simply because she was on FMLA leave. Plaintiff has failed to demonstrate material fact questions exist that the real reason she was terminated was because she was exercising her rights under the FMLA. Accordingly, the Court finds that summary judgment as to Plaintiff's interference claim is also warranted.
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment [Doc. No. 19] is