PLAINTIFF JOHANNA BROOKS-KROGGEL'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JAMES S. GWIN, District Judge.

Now comes the Plaintiff, Johanna Brooks-Kroggel, by and through undersigned counsel, and hereby submits the following Brief in Opposition to the Defendant's Motion for Summary Judgment. Because there remain genuine issues of material fact with regard to Ms. Brooks-Kroggel's claims for FMLA retaliation and age discrimination and because the Defendant is not entitled to judgment as a matter of law as it relates to those claims, the Defendant's Motion for Summary Judgment must be overruled.

I. COUNTER STATEMENT OF THE FACTS

Johanna Brooks-Kroggel was hired by Time Warner Cable in 2013 for the position of Human Resources Manager (Deposition of Johanna Brooks-Kroggel, p.62). Time Warner Cable merged with Charter Communications in May of 2016 (Depo., Brooks-Kroggel, p. 70). Brooks-Kroggel held the position of Human Resources Business Partner with Time Warner Cable (Depo., Brooks-Kroggel, p. 72).

Shortly after the merger, Jessica Sutton, Director of Human Resources, became Brooks-Kroggel's direct supervisor. This occurred on August 28, 2016 (see Deposition of Jessica Sutton, p. 86). Very shortly thereafter, in the late summer or early autumn of 2016, Sutton demoted Brooks-Korggel to a Human Resources Generalist (Depo., Brooks-Kroggel, p. 72). Sutton explained to Brooks-Kroggel that the demotion in job title was because there was "no inbetween position at the company." After researching this proposition, Brooks-Kroggel found the explanation to be false (Depo., Brooks-Kroggel, p. 72).

It is undisputed that Brooks-Kroggel was 55 years of age on the date of her termination. Conversely, Brooks-Kroggel's direct supervisor, Jessica Sutton, was 39 years of age on the date of Brooks-Kroggel's termination (see Defendant's Answer to Plaintiff's Interrogatory No. 20, attached hereto as Exhibit "1").

Despite attempts by the Defendant to obfuscate who the actual decision makers were in the termination of Brooks-Kroggel, it has admitted that the sole decision makers were Senior Director of Stores for the Great Lakes Region, Cartwright Stephens; Director of Human Resources for the Northeast Region, Jessica Sutton; and the two persons charged to investigate the allegations of sales manipulation and sales fraud by one store specialist against another (Plaintiff's Deposition Exhibit "6", Answer to Information Request No. 2). Sutton largely confirms that with regard to Brooks-Kroggel that she recommended the termination and that Cartwright Stephens made the actual decision to terminate Brooks-Kroggel (Sutton Depo., pp. 32-33). The Supervisor of Cartwright Stephens, Lou Brazzoni, merely "supported" the decision of Stephens. Stephens had just turned 40 years of age on the date that he terminated Brooks-Kroggel, an individual 15 years his senior (Plaintiff's Exhibit "1", Answer to Interrogatory No. 20).

The Investigation

The investigation which somehow led to the termination of Brooks-Kroggel five months later commenced on October 28, 2016. Apparently, the store specialist or customer service representative making the complaint, Cher Sammels, approached Cartwright Stephens by telephone on October 28, 2016, with complaints about sales manipulation and sales fraud by her co-worker, Glennis Singletary (See Deposition of Cartwright Stephens, p. 45). During that initial phone call, Stephens asked Sammels if she had talked to her leadership about the issues. According to Stephens, Sammels responded that she had not done so (Depo., Stephens, p. 45).

At any rate, Stephens informed Sammels to put her complaints in writing during this phone call which lasted close to one hour (Depo., Stephens, p.46). Sammels admitted to Stephens that because she had exceeded her 15 minute break while talking to him on the telephone and had been off the sales floor for nearly 45 minutes, that co-workers had complained to the store manager (Depo., Stephens, p.47; Plaintiff's Deposition, Exhibit "18"). Sammels informed Stephens that she lied to her co-employees about the reason that she was absent from the sales floor for 45 minutes. Sammels told Stephens that she had informed her co-employees that she was talking to "her lawyer" (Depo., Stephens, p. 50). Sammels also alleged that Stephens had called her directly rather than the other way around. Stephens admits that he knew Sammels was lying about her whereabouts (Depo., Stephens, p.61). In fact, Stephens admits not only that he was aware that Sammels had lied to her co-employees but that she had lied to her supervisors as well (Depo., Stephens, pp. 107-108). Stephens suggested that it was fine for Sammels to lie to her supervisors because, among other reasons, Sammels might have been lying about lying to her supervisors (Depo., Stephens, pp. 108-110).

As a result of the request by Stephens, Sammels placed her complaint into writing by way of letter dated November 3, 2016, and emailed it to Stephens on November 7, 2016 (Plaintiff's Depo., Exhibit "23"). In the letter setting forth her complaint, Sammels mentions nothing with regard to Brooks-Kroggel. The only item that could conceivable include Brooks-Kroggel in a complaint was the notion that she was required to get a doctor's note upon returning from approved FLMA (Plaintiff's Depo., Exhibit "22"). However, Sutton was confronted at her deposition with Plaintiff's Deposition Exhibit "14" which contained the procedure for returning from approved leave. The procedure required that Sammels provide medical release from her doctor before returning to work (Plaintiff's Depo., Exhibit "14", p. 27; Depo., Sutton, p.81). Accordingly, far from doing anything improper, Brooks-Kroggel was following appropriate policy.

Stephens claims that the investigation was opened very shortly after he received the October 28, 2016, telephone call from Sammels. Stephens claims that the investigation was opened by referring Sammels complaints to Human Resources Director, Jessica Sutton, almost immediately after the first phone call from Sammels (Depo., Stephens, p. 95). Indeed, Stephens summarized the written complaint of Sammels in a lengthy email to Sutton on November 7, 2016 (Plaintiff's Depo. Exhibit "23"). Consistent with Sammels complaints, the summary of these complaints by Stephens indicates absolutely no complaints with regard to Brooks-Kroggel. In fact, Brooks-Kroggel is not mentioned whatsoever (Plaintiff's Depo., Exhibit "23). Indeed, Brooks-Kroggel was originally assigned along with another Human Resources Generalist, Cheri Luster, to do the investigation of Sammels complaint (Depo., Sutton, p. 58). However, on December 22, 2016, Sutton made the decision to remove Brooks-Kroggel from the investigation (Depo., Sutton, p.59). In fact, on or about December 7, 2016, more than two weeks before being removed from the investigation, Sammels telephoned Brooks-Kroggel wanting to raise some issues. Brooks-Kroggel informed Sammels that since she had been assigned to an investigation that she could not speak with Sammels about anything that might relate to that particular investigation (Depo., Brooks-Kroggel, p. 125). Nevertheless, Sammels continued to push Brooks-Kroggel by informing her that Brooks-Kroggel had always helped her and she had absolutely no problems with her and that her complaints related to other individuals. In response, Brooks-Kroggel continued to inform Sammels that she could not speak to her about the issues and that if that particular response was unsatisfactory, she could reach out to Brooks-Kroggel's supervisors and tell them that she wanted to speak with Brooks-Kroggel. Thus, any suggestion that Brooks-Kroggel was trying to deflect the investigation away from herself by influencing Sammels to call her supervisor is necessarily false because when this conversation occurred, December 7, 2016, Brooks-Kroggel was not subject to any investigation whatsoever and, indeed, was one of the two individuals assigned to investigate Sammels complaints. The simple reason why Brooks-Kroggel told Sammels that she could not speak with her was because Brooks-Kroggel was one of the investigators.

It is unclear why Brooks-Kroggel suddenly became a target of the investigation after being removed on December 22, 2016, but an email from Cartwright Stephens to the two investigators, Cheri Luster and Marielys Ortega, is suggestive. The investigators had requested information from Stephens with regard to the expectations he had set for the sales leadership team above Sammels. After making an initial response to this inquiry earlier, on February 17, 2017, Stephens follows up with an additional unsolicited email to Investigator Luster dealing with an issue that had nothing to do with the sales management leaders above Cher Sammels. This email injects the subject of Joanna Brooks-Kroggel into the unrelated topic (Plaintiff's Depo., Exhibit "30"). In the email, Stephens states that "the feeling I got was Johanna was a major part of and/or led investigations rather than just provide guidance and risk management to Roger" (Plaintiff's Depo., Exhibit "30").

Plaintiff's Deposition Exhibit "30" is truly odd considering that HR Generalists, such as Brooks-Kroggel, are supposed to lead investigations with regard to the team that they support. This is confirmed by three facts. First, Brooks-Kroggel's direct supervisor, Jessica Sutton, confirmed that the job description for Brooks-Kroggel included conducting investigations. Second, the actual job description for a Human Resource Generalist directly lists as one of its major job duties the conducting of investigations (Depo., Sutton, pp. 69-70; Plaintiff's Deposition Exhibit "10"). Third, it was two Human Resources Generalists who were assigned the duty of conducting the investigation of Cher Sammels. Indeed, Brooks-Kroggel had originally been assigned to conduct the investigation. In this context, it is beyond unfair that Brooks-Kroggel would be punished for conducting and/or leading investigations.

The Preoccupation with FMLA Taken or Requested by Brooks-Kroggel

Plaintiff's Deposition Exhibit "2" at Bates, pages 1673 through 1676, provides a listing of specific events "leading to the need for corrective action" organized in chronological order. These pages of Exhibit "2" contain rather explosive information. On October 18, 2016, Brooks-Kroggel was criticized for applying for leave to care for a family member which was denied due to the relationship of the individual as not qualified. Next, on November 4, 2016, Brooks-Kroggel's husband called Jessica Sutton "crying and upset" because Brooks-Kroggel was having some health issues and had to be taken to the ER. Somehow, this too, was listed as a specific event leading to the need for corrective action. Next, on January 24, 2017, the investigators listed as a significant event leading to the need for corrective action the fact that one of the investigators, Marielys Ortega, thought that it was odd that Brooks-Kroggel had a doctor's appointment after her investigation interview and was of the opinion that Brooks-Kroggel "may potentially go out on a leave." Next, the Defendant listed as a significant specific event leading to the need for corrective action, the fact that Brooks-Kroggel called off sick with the flu on January 27, 2016. The next specific event leading to the need for corrective action listed was that Brooks-Kroggel went out on medical leave for the period from February 3, 2017 through February 9, 2017. Next and last, on the list of specific events leading to the need for corrective action, is an entry for February 28, 2017, wherein it is stated that Jessica Sutton received a notification from Sedgewick that Brooks-Kroggel applied for intermittent medical leave and that Brooks-Kroggel had not mentioned it to Sutton (See also attachment "4" to Defendant's Brief in Support of its motion for Summary Judgment of Bates stamped pages 1673 through 1677).

The Termination

Brooks-Kroggel received notice of her termination by way of letter dated April 13, 2017. This letter, which is in the record as Plaintiff's Deposition Exhibit "7", contains the following language:

However, there was another version of the April 13, 2017, termination letter that was provided in discovery by the Defendant. This version of the letter was marked as Plaintiff's Deposition Exhibit "8" and was not sent to Brooks-Kroggel. This version of the letter states:

Accordingly, the letter of termination had different forms specifically dealing with the issue of the timing of the decision to terminate and its proximity to the issue of medical leave.

The Defendant listed five events as to why Brooks-Kroggel was terminated. First, Brooks-Kroggel mistakenly left a message on Sammels voice mail that was intended for a store manager. Second, Brooks-Kroggel contacted her Human Resources Generalist colleagues to inquire about this status of the investigation. Third, Brooks-Kroggel improperly advised sales managers to demand a return to work medical note for Sammels for an approved leave; Fourth, Brooks-Kroggel informed Sammels that she could contact Sutton with regard to Sammels having no complaints with regard to Brooks-Kroggel and wanting to speak with her. Last, Brooks-Kroggel was not cooperative with the interviewing schedule and was allegedly evasive and not forthcoming with regard thereto. These reasons are either without any bases in fact or insufficient to justify termination (See Defendant's Brief in support of Summary Judgment at pp.7-8).

It should be stressed that Brooks-Kroggel had never once during her career with the Defendant or its predecessor, Time Warner, received a disciplinary action. Moreover, Brooks-Kroggel's performance review for calendar year 2016, met expectations and was issued after many of the events which are listed as a basis for termination (Depo., Sutton, pp. 78, 86). Importantly, the Defendant had a progressive disciplinary policy in place at the time of the events in question (Depo., Sutton, p. 80).

II. LAW AND ARGUMENT

A. There Remains a Genuine Issues of Material Fact as it Relates to Brooks-Kroggel's Claim for FMLA Retaliation.

An employer is prohibited from discriminating against employees who have used FMLA leave and may not use the taking of such leave as a negative factor in employment decisions. Arban v. West Publishing Corporation, 345 F.3d 390, 403 (6thCir. 2003). The prohibition also includes demotion for taking leave. DeBoer v. Musashi Auto Parts, Inc., 124 F. App'x, 387, 391 (6thCir. 2005).

The McDonald Douglas framework governs FMLA claims. (See generally McDonald Douglas Corp v. Green, 411 U.S. 792 (1973). Under this framework, once an employee establishes a prima facia FMLA claim, the burden shifts to the employer to provide a legitimate nondiscriminatory reason for the adverse action. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6thCir., 2012). If the employer is able to provide such a reason, the burden again shifts to the employee to show that the reason is a pretext for unlawful discrimination. Id. at 761, 762.

Applying the McDonald Douglas framework to FMLA retaliation claims, an employee must show: (1) he was carrying out an activity protected by the FMLA; (2) his employer knew he was exercising his rights under the FMLA; (3) the employer took adverse action against the employee; and (4) a causal link between the protected activity and adverse action. Donald, 667 F.3d 761; Alexander v. Kellog USA, Inc., 674 Fed. App.x. 496 (6thCir. 2017).

In the case at bar, the first three elements are clearly met. First, by applying for and taking approved medical leave, Brooks-Kroggel was carrying out an activity protected by the FMLA. Second, this Defendant knew Brooks-Kroggel was carrying out her rights under the FMLA. Third, Defendant Charter took adverse action against Brooks-Kroggel. Thus, the only issue that is truly in dispute with regard to the prima facia case is whether there exists a causal link between Brooks-Kroggel taking her FMLA and her subsequent termination.

Temporal proximity between the Plaintiff's exercise of her protected rights and an adverse action is relevant to whether the former is causally connected to the latter. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000); see Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (6Th Cir. 2008). The temporal proximity that is relevant to Brooks-Kroggel FMLA retaliation claim is a length of time between when she was absent from work on FMLA leave and when she was discharged. (See generally Wallner v. Hilliard Lyons, Case No. 13-6548 (6th Cir., 2014). In the case at bar, the timing could not be more exquisite since Brooks-Kroggel actually was terminated while she was still on FMLA.

While the Defendant may argue that the decision to terminate Brooks-Kroggel was made prior to her going out on medical leave, such an argument is both self-serving and disingenuous. First of all, just because this Defendant says the decision was made before the Plaintiff went out on medical leave does not make it so. Such an allegation by the Defendant is an issue of fact to be determined by the jury. Moreover, the excuse is disingenuous because it conveniently overlooks the fact that Plaintiff was also out on medical leave between February 3 and February 10, 2017, and out on intermittent leave on February 28, 2017. Tellingly, the Defendant never shares with the Court or Plaintiff when the actual decision to terminate Plaintiff was made. If it was made during March, but prior to March 28, 2017, it was in close temporal proximity to the intermittent leave which began on February 28, 2017. If the decision occurred any time after February 3, 2018, but before February 28, 2017, it would have occurred either while Plaintiff was out on leave between February 3rd and February 10th of that year or in very close proximity thereto. Thus, in the case at bar, the temporal proximity is strong evidence of a causal link.

In addition, in Plaintiff's Exhibit "2", between Bates, pages 1673 and 1676, there are at least five entries of events leading to the need for corrective action that are listed that focus on Brooks-Kroggel taking medical leave. The corrective action in this case was termination. One might rightly ask why are there multiple events revolving around the Plaintiff taking medical leave that are listed as events leading up to the need to take corrective action?

Moreover, it must be remembered that almost immediately after Sutton became Brooks-Kroggel's supervisor on August 28, 2016, Brooks-Kroggel was demoted in her job title almost immediately after returning from an approved medical leave. On top of all that, it must be remembered that this Defendant authored two different letters over the signature of Plaintiff's supervisor, Jessica Sutton, which rather suspiciously changed language of when the decision to terminate the Plaintiff occurred.

The Defendant points to five items as consisting of their legitimate nondiscriminatory reason for the termination. Once the Defendant provides such a legitimate nondiscriminatory reason, the Plaintiff has the burden to come forward with sufficient evidence for which a reasonable finder of fact could conclude that said reason is pretext. Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6thCir. 2006; McDonald Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973)). A Plaintiff establishes pretext "by showing that the proper reason had no basis in fact, did not motivate the termination, or was insufficient to warrant the termination." Donald v. Sybra, Inc., 667 F.3d 757, 762 (6thCir. 2012); Clay v. United Parcel Service, 501 F.3d 695, 704 (6thCir. 2007); Manzer v. Diamond Shamrock Chemical Company, 29 F.3d 1078, 1087 (6thCir. 2984).

Of the five reasons indicated by Defendant, three of these reasons have no basis in fact. First, the idea that Brooks-Kroggel improperly advised business managers to demand improper medical documents is without basis. Instead, Brooks-Kroggel followed her employer's policy of obtaining a return to work slip for an individual returning from FMLA. Second, the notion that Brooks-Kroggel attempted to have Sammels contact her supervisor, Sutton, in order to influence the investigation away from Brooks-Kroggel ignores the fact that Brooks-Kroggel was not a subject of the investigation at that time and, moreover, had actually been appointed one of the investigators. Instead, Brooks-Kroggel was directing Sammels to contact her supervisors about the fact that Brooks-Kroggel did not comment upon or speak about the investigation with Sammels. Third, the idea that Brooks-Kroggel was uncooperative with interview scheduling or was evasive in her answers to questions is purely a matter of subjective opinion. Simply stated, Brooks-Kroggel was having serious health issues during the time of the scheduling of her interview and, beyond that, was extremely busy at work (Depo., Brooks-Kroggel, p. 138). It is not at all unusual that her interview might have to be rescheduled two or three times. The other two reasons cited are insufficient to warrant termination. While Brooks-Kroggel did once inquire of Luster in an email as to whether she was getting near the end of the investigation, she never asked for any details about the investigation, the content of any interviews, or her thinking as to the results. She simply asked how the investigation was going. It is hard to see how this is any basis for termination. Clearly, a reasonable jury can find that it is an insufficient basis. The second insufficient basis is that Brooks-Kroggel mistakenly left a voice mail intended for Laura Stirling in Cher Sammels voice mail. When originally asked about whether she had left a voice mail for Laura Stirling in December of 2016, two or three months earlier it hardly would be unusual that Brooks-Kroggel may not immediately have remembered if she had done so during that specific time frame. However, upon being played the voice mail, Brooks-Kroggel's recollection was refreshed that she had left that message for Stirling, although she still did not recall the precise date. It was simply a mistake that she had left the voice mail for Stirling on Sammels phone (Depo., Brooks-Kroggel, pp. 121-124). How is mistakenly touching the wrong number and leaving a message nearly devoid of detail for the wrong person a termination event instead of a simple honest mistake? Clearly, this honest and insignificant event is insufficient to justify termination. It must be remembered that Brooks-Kroggel had never been disciplined and had just recently received a meets expectations performance review.

For the foregoing reasons, it is abundantly clear that this Defendant is not entitled to summary judgment as it relates to Plaintiff's claim for FMLA retaliation.

B. There Remains a Genuine Issues of Material Fact as it Relates to Plaintiff's Claim for Age Discrimination.

Age discrimination claims are also susceptible proof by indirect evidence using the McDonald Douglas v. Green, supra, prima facia case approach. In order to set forth a prima facia case of age discrimination, the Plaintiff must bring forth evidence that: (1) she was a member of the protected group; (2) she was otherwise qualified for her job; (3) that she was a victim of an adverse employment action; and (4) circumstances that support an inference of discrimination. Blizzard v. Marian Technical College, 698 F.3d 275 (6th Cir. 2012); Swierkiewicz v. Sorema, 534 U.S. 506, 512, 513 (2002).

While there are different formulations of the prima facia case approach in age discrimination claims, it is incorrect to state simply that the fourth element is to demonstrate the Plaintiff was replaced by a substantially younger employee. Often, there can be age animus when a Plaintiff is not replaced but where his or her job is simply reassigned to another existing employee. The precise requirements of a prima facia case can vary depending on the context and was "never intended to be rigid, mechanized, or ritualistic." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978); See also, McDonald Douglas, supra, at 802, Note 13 ("The specification. . .of prima facia proof required from respondent is not necessarily applicable in every respect to differing factual situations"); Teamsters v. United States, 431 U.S. 324, 358 (1977) (noting that this Court "did not purport to create an inflexible formulation" for a prima facia case.).

Accordingly, in the case at bar, the first three elements of the prima facia case approach are clearly met. Plaintiff was a member of the protected class in that she was above 40 years of age. She clearly was otherwise qualified for her job and she had never received a disciplinary action, performance improvement plan and had always at least met expectations on her performance review. It is undisputed that she suffered the adverse employment consequence of being terminated form her employment.

With regard to the fourth element, there exists genuine issue of material fact as to whether there are circumstances that support an inference of discrimination. The circumstances in the present case are that the decision makers for terminating Brooks-Kroggel, Cartwright Stephens and Jessica Sutton, were 40 and 39 years old, respectively. Plaintiff was 55 years of age. The decision makers were substantially younger. In addition, Brooks-Kroggel was for no good reason removed from an investigation of team members who she would otherwise support and were replaced by two individuals with the same job title, Cheri Luster and Marielys Ortega. At the time of Plaintiff's termination, Luster was 46 years of age and Ortega was only 30 years of age. Both of these co-employees were treated substantially more favorably than the Plaintiff and were substantially younger than Plaintiff.

With regard to pretext, the test in an age discrimination claim is the same as that set forth in a context of FMLA retaliation. Accordingly, the same five articulated reasons for the terminations set forth by the Defendant are still in three instances without basis in fact and in the other two instances insufficient to justify termination.

Finally, this Defendant is suggesting that the decision makers in this case were somehow not the much younger Jessica Sutton and Cartwright Stephens but, rather, Lou Brazzoni and Sutton's direct supervisor who were both in the same age group as Plaintiff. However, this attempt is counter factual given the answers to this Court's inquiry contained in Plaintiff's Deposition Exhibit "6", which answer was never amended or supplemented and given the deposition testimony of Sutton, wherein she testified that she recommended the termination of Plaintiff and the decision to terminate was made by Cartwright Stephens. According to Sutton, Brazzoni merely "supported" Cartwright Stephens' decision.

Defendant also ignores the fact that the Sixth Circuit has adopted the "cat's paw" theory of liability. The cat's paw theory of liability holds that even though the ultimate decision makers may not have had discriminatory intent in deciding to terminate an employee, if a lower level supervisor upon whom the decision maker relied or was influence had such discriminatory intent, that intent is imputed to the entire decision that was made. Marshall v. Rawlings Co., 854 F.3d 368 (6th Cir. 2017). Even if Brazzoni was the decision maker, which he was not, clearly he relied upon Stephens and Sutton in merely "supporting" the decision.

III. CONCLUSION

For the foregoing reasons, it is abundantly clear that there remain genuine issues of material fact as to both of Plaintiff's claims and that this Defendant is not entitled to judgment as a matter of law.

Accordingly, Defendant's Motion for Summary Judgment must be overruled.