GLEN E. CONRAD, Chief District Judge.
The plaintiff filed this action against her former employer, alleging violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 to 2654, and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17. The case is presently before the court on the defendant's motion for summary judgment. For the reasons set forth below, the motion will be granted.
The following facts are either undisputed or, where disputed, presented in the light most favorable to the plaintiff.
On October 28, 2010, Shearer's Foods, Inc. ("Shearer's") hired the plaintiff, Rhonda Taylor McBeth, to work as a Human Resource Generalist at its snack food manufacturing facility in Bristol, Virginia. McBeth received a starting salary of $60,000. Less than three months later, on January 19, 2011, McBeth was promoted to the position of HR Manager and given a $10,000 raise. At that time, McBeth was the highest paid HR Manager in the company.
During her employment with Shearer's, McBeth reported directly to Michael Shearer ("Shearer"), the Corporate Director of Human Resources, with a "dotted-line report" to Pam Herman, the Plant Manager of the Bristol facility. Shearer Aft: ¶ 8, Docket No. 25. Shearer, in turn, reported to Walt Fink, the Vice President of Human Resources. Both Shearer and Fink worked primarily from the defendant's corporate headquarters in Ohio.
Around the same time that she was promoted to HR Manager, McBeth began advocating for the vacant position of Safety Specialist to be filled. Her fiancé at the time, Richard McBeth ("Richard"), had previously applied for the position. Richard was interviewed at the facility by McBeth, Herman, Sean Mitchell, and Greg Kennedy on February 4, 2011. Neither McBeth nor Richard indicated during the interview that they were engaged.
On February 7, 2011, McBeth sent Shearer an email advising him that Richard had been interviewed for the Safety Specialist position, and that the interview team was of the opinion that Richard would be a good fit for the facility. McBeth noted that Richard's presentation was informative, that he had "experience building a safety program from the ground up," and that he demonstrated a "passion for safety." Bates No. SF 00076, Docket No. 25. The email provided no indication that McBeth knew Richard on a personal level.
Shortly thereafter, Herman advised Shearer that she had learned that McBeth and Richard were engaged, and that she was of the opinion that this was why McBeth had been advocating for Richard to be hired. Although the defendant contends that McBeth affirmatively "denied knowing [Richard] on a personal level" when she was subsequently confronted by Shearer, Shearer Aff. ¶ 19, McBeth maintains that she "at no time . . . attempt[ed] to conceal [her] relationship with Richard." McBeth Decl. ¶ 7, Docket No. 38-8.
On February 18, 2011, Shearer advised McBeth and Herman that he was "not overly excited about [Richard's] background and [desired] compensation range," and that they "should keep recruiting for [the] position." Bates No. SF 00087, Docket No. 25. Several months later, on August 10, 2011, McBeth emailed a number of company officials, including Shearer and Fink, and advised them that she would be getting married the following Saturday, and that she wanted to "introduce the groom, . . . Rich McBeth." Bates No. SF 00098, Docket No. 25.
During McBeth's performance review for 2011, Shearer advised her that he had received complaints regarding her ability to work cooperatively with other members of the Bristol management team. Prior to the review, Shearer asked members of the Bristol management team to provide feedback related to McBeth's job performance. McBeth received positive comments regarding her knowledge of HR functions and systems, and her ability to interact with hourly associates. However, the feedback also suggested, as McBeth acknowledged during her deposition, that she was not a "team player" and that she needed to be less confrontational with other members of the management team. McBeth Dep. 125, Docket No. 41. In addition, McBeth "received criticism for providing input into other areas, most notably Safety." McBeth Aff. ¶ 9, Docket No. 38-8. Shearer provided the following summary in McBeth's written review:
Pl.'s Ex. I, Docket No. 37-9.
McBeth was admittedly "taken aback" by the performance review. McBeth Dep. 109, Docket No. 41. After receiving the review, McBeth sent Shearer an email addressing some of the issues that were raised. McBeth emphasized that the review had caught her off guard, but that she was willing to "move forward to do [her] best." Bates No. SF 00104, Docket No. 25. McBeth also noted that her relationship with Herman, the Plant Manager, was improving, and that Herman had provided advice on how to better communicate with her peers. Additionally, McBeth acknowledged that "[t]he safety role [was] not [her] responsibility to manage," and that she was "working very hard on removing [herself] from any aspect of safety management."
On February 10, 2012, Shearer informed McBeth that the company was considering a headcount reduction. He advised her that Shearer's planned to eliminate either the HR Generalist position in Bristol or the HR Manager position, and create a combined position. Shearer asked her to decide which position should be eliminated, and noted that she might be eligible for a severance package if she elected to nominate herself for the reduction. Because a severance package was not guaranteed, McBeth elected to remain with Shearer's and, over the next few weeks, assisted in eliminating the HR Generalist position held by Janice Herrell.
Soon after Herrell was terminated, McBeth began to express concerns regarding her workload. On March 23, 2012, Shearer traveled to Bristol to meet with McBeth about her new job duties and her objectives for the next 90 days. During the meeting, McBeth suggested hiring a part-time HR clerk to assist her in performing her job duties. Shearer explained that this may be an option down the road, but that he was not in support of hiring anyone at that time.
Nonetheless, the following Monday, March 26, 2012, McBeth emailed Shearer and advised him that she had scheduled a meeting with a candidate for a part-time HR position. In response, Shearer instructed McBeth to focus on the goals and objectives that they had discussed during their meeting. He also reminded her that while he was "not opposed to talking about hiring a clerk," he was "not . . . on board" with doing so "at this time." Bates No. SF 00113, Docket No. 25.
The next day, March 27, 2012, McBeth emailed Shearer and Herman, and advised them that she was going to need to have shoulder surgery. She indicated that she did not yet know when the surgery would take place and that she would keep them posted.
On March 28, 2012, Walt Fink received a telephone call from Mike Parks, Vice President of Manufacturing, and Janice Wagner, an Operations Consultant at the defendant's Hermiston, Oregon plant. Wagner informed Fink that Julie Mercer, a Hermiston associate, had recently spoken with Joyce Hughes, the former HR Supervisor at the Hermiston facility, and that Hughes had advised Mercer of certain confidential employment information that she had learned.
Fink subsequently spoke to Mercer by phone, and she relayed what Hughes had allegedly told her. On March 29, 2012, Fink sent Mercer an email summarizing the contents of their telephone conversation, and Mercer confirmed that the summary was accurate. He then instructed Shearer to meet with McBeth regarding the allegations.
Shearer traveled to Bristol to speak with McBeth on April 5, 2012. Unbeknownst to Shearer, McBeth recorded portions of their conversation with her cell phone.
On April 26, 2012, McBeth emailed Shearer and advised him that she would soon be sending him her request for FMLA leave. McBeth noted that she was still waiting to find out the exact date of her shoulder surgery, and that she would let him know as soon as possible. In response, Shearer asked McBeth to see if Janice Herrell would be interested in filling in during her absence. In a reply email sent the following day, Shearer indicated that the company could rehire Herrell as a seasonal employee at the hourly equivalent of Herrell's former salary.
By email dated May 2, 2012, McBeth advised Shearer, Herman, and Fink that her shoulder surgery would be performed on June 12, 2012, that she would need to prep for surgery on June 11, 2012, and that she expected to be off work between six and eight weeks. The next day, she submitted a Request for Family and Medical Leave of Absence for the following dates: June 11, 2012 to August 6, 2012.
On May 4, 2012, Shearer sent McBeth an email thanking her for communicating her requested leave dates. He reminded her that she would also need to have her doctor complete a certification form, which he attached. In response to additional questions from McBeth regarding the certification form, Shearer emailed her on May 8, 2012, and advised her that she would need to have the form completed within the first two weeks of leave. He recommended that she "get it taken care of sooner so that [she] did not have to worry about it while on leave." Pl.'s Add'l Ex. R-8, Docket No. 38-5.
McBeth testified at her deposition that, in addition to their communications via email, she and Shearer had several conversations regarding her FMLA leave, the particular dates of which she could not recall. During one of the conversations, she asked Shearer when she would need to submit the "appropriate document" to the corporate office. McBeth Dep. 45. According to McBeth, Shearer advised her "that it needed to be turned in as soon as possible, but it did not guarantee any approval of leave."
On May 15, 2012, McBeth participated in a facility walkthrough with Greg Kennedy to look for safety hazards. The safety committee at Bristol initiated this practice after Kennedy was promoted to Safety, Security, and Wellness Manager. The walkthrough lasted approximately thirty minutes.
Following the walkthrough, Gregory McDavid, the Production Manager, approached McBeth to discuss changes in the company's hiring strategy. According to the defendant's evidence, McDavid "heard the sound of a tape recorder `click' and the sound of a tape rewind." McDavid Aff. ¶ 5, Docket No. 22-4. While McBeth denies having a tape recorder, McDavid maintains that he saw her "reach into her left front pants pocket, pull[] out a tape recorder, turn[] it off, and place[] it under a folder on her desk."
McDavid subsequently located Herman in her office and advised her that he had seen McBeth with a tape recorder. Herman and McDavid immediately called Shearer, who instructed them not to confront McBeth until Fink had been advised of the incident.
On the morning of May 16, 2012, Herman and McDavid called Fink, and McDavid relayed what he had allegedly seen. Fink asked McDavid whether he could have mistaken a recorder for something else, to which McDavid responded "no."
Later that morning, Fink and Shearer had a telephone conference with Herman and McBeth. During the phone conference, McBeth denied having a recorder. She claimed that the device was her daughter's cell phone that she needed to take in for repairs.
According to the defendant's evidence, Fink, Shearer, and Herman each observed that McBeth seemed nervous and evasive during the call, and did not believe that her explanation was credible. Fink "terminate[d] her . . . on the spot with no input from anyone else." Fink Aff. ¶ 51. He "explained to Ms. McBeth that this was yet another issue related to trust amongst her team members," and that he did not believe that her relationship with other members of the Bristol management team could be salvaged.
At the time of her termination, McBeth was no longer the company's highest paid HR Manager. Shawn Olsen, who had worked for Shearer's since May 2010 as a Talent Acquisition Manager, was promoted to the vacant position of HR Manager at the Hermiston, Oregon facility. He was given a $6,100 raise, making his salary $83,000.
Following her termination, Shearer's learned that McBeth had filed an anonymous complaint with the Virginia Occupational Safety and Health Administration in March of 2012, which identified 19 alleged safety violations at the Bristol facility. The complaint was resolved with two citations and a $2,100 fine.
McBeth filed the instant action against Shearer's on December 3, 2012. She claims that Shearer's violated the FMLA by terminating her in retaliation for requesting FMLA leave. She also claims that Shearer's violated her rights under Title VII by paying her a lower salary than Shawn Olsen.
Following the completion of discovery, Shearer's moved for summary judgment. The court held a hearing on the motion on June 25, 2014. The motion has been fully briefed and is ripe for review.
An award of summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-movant.
McBeth first claims that Shearer's violated the FMLA by terminating her in retaliation for requesting medical leave.
"FMLA retaliation claims are analogous to discrimination claims brought under Title VII."
Direct evidence of discrimination "encompasses `conduct or statements that both (1) `reflect directly the alleged discriminatory attitude,' and (2) `bear directly on the contested employment decision.'"
In this case, McBeth contends that Shearer, her direct supervisor, displayed a discriminatory attitude after she advised him of her need for medical leave. She cites to portions of her deposition testimony, during which she described three conversations that "made [her] feel uncomfortable with requesting to take family medical leave." McBeth Dep. 30. During the first conversation, McBeth inquired as to when she would need to have "the appropriate document" into the corporate office.
At this stage of the proceedings, the court accepts as true McBeth's account of these conversations. However, even assuming that such statements were made by Shearer, they do not constitute direct evidence of a discriminatory animus. Instead, they are consistent with decisions interpreting and applying the FMLA and its accompanying regulations. These decisions make clear that that "an employee must provide `adequate' and `timely' notice of the need for covered leave" before an employer's duty to provide FMLA leave is triggered,
Because the first two challenged statements are consistent with the foregoing principles, no reasonable jury could find them to be direct evidence of discrimination.
The court likewise concludes that no reasonable jury could find the third purported comment — that McBeth's absence was going to pose a "hardship" on the company — to be direct evidence of discrimination. Simply stated, this comment does not reflect any discriminatory attitude, and certainly does not prove, "without inference or presumption," that McBeth was terminated in retaliation for requesting FMLA leave.
Without the benefit of direct evidence to support her claim under the FMLA, the plaintiff next seeks to rely on the burden-shifting framework set forth in
In this case, even assuming that McBeth has set forth a prima facie case of discrimination, Shearer's has articulated a legitimate, nondiscriminatory reason for terminating her employment. Specifically, Shearer's maintains that her employment was terminated because it was determined that she secretly recorded a safety walkthrough and then lied about the incident. Shearer's has provided a copy of its Employment Policies and Procedures Handbook, which specifically prohibits "dishonesty," as well as the "[u]nauthorized possession or use of . . . recorders . . . or other electronic devices on Company premises at any time." Bates No. SF 00245-00247, Docket No. 25-1. While McBeth testified during her deposition that she did not recall some of the other provisions of the handbook,
Having reached this decision, McBeth bears the burden of establishing at step three of the
McBeth first argues that "she never had possession of any gray tape recorder, and that she did not tape record the safety walkthrough in question." Pl.'s Br. in Opp'n 9, Docket No. 37;
In the instant case, the plaintiff has failed to proffer evidence from which a reasonable jury could find that Walt Fink, the company official responsible for terminating her employment, did not honestly believe that she had secretly recorded the safety walkthrough. The record establishes that Fink spoke to McDavid about the incident, that he obtained McBeth's side of the story, and that he ultimately decided that McBeth's explanation was not credible and that she could not be trusted.
The court must also reject McBeth's argument that the investigation of the incident in question was inadequate.
Finally, the mere fact that McBeth was terminated less than two weeks after submitting her FMLA leave request is insufficient to create a genuine issue of material fact as to the reason for her termination. While timing can be considered in assessing whether an employer's explanation is pretextual, "it is not usually independently sufficient to create a triable issue of fact."
For all of these reasons, the court concludes that McBeth's evidence fails to create a genuine issue of material fact as to whether Shearer's terminated her employment for requesting FMLA leave. Accordingly, the motion for summary judgment will be granted with respect to this claim.
McBeth also claims that Shearer's violated Title VII by paying her a lower salary on the basis of her gender.
In this case, McBeth seeks to establish a prima facie case of gender discrimination by pointing to the fact the she was paid $13,000 less than Shawn Olsen, who was the HR Manager of the defendant's facility in Hermiston, Oregon at the time of McBeth's termination. Even assuming that McBeth could establish a prima face case of discrimination, Shearer's has articulated legitimate, nondiscriminatory reasons for the pay disparity. According to Fink's affidavit, Olsen had been working as a Talent Acquisition Manager for Shearer's since May 2010 at the time he was promoted to the HR Manager position in Hermiston. Because the Hermiston facility had been experiencing considerable turnover, Olsen's background in recruiting made him a "particularly good choice" for the position. Fink Aff. ¶ 10. Fink maintains that he considered a number of factors in determining Olsen's salary, including his prior work history and his particularly relevant master's degree in HR Management. The "most important factor," however, was the fact that Shearer's needed to provide an incentive for Olsen to relocate from Ohio to Oregon.
In her response to the defendant's motion for summary judgment, McBeth maintains that she had "far more extensive experience" than Olsen. Pl's Br. in Opp'n 9. However, she has offered no evidence to rebut the legitimate, nondiscriminatory reasons provided for Olsen's higher rate of pay. In the absence of such evidence, the court concludes that McBeth has failed to establish a genuine, triable issue as to whether Shearer's discriminated against her on the basis of gender.
For the reasons stated, the court will grant the defendant's motion for summary judgment. The Clerk is directed to send certified copies of this memorandum opinion and the accompanying order to all counsel of record.
McBeth Dep. 214.
