Metzler vs. Federal Home Loan, No. 04-3412 (10th Cir. 2006)
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F IL E D United States Court of Appeals Tenth Circuit September 26, 2006 PU BL ISH Elisabeth A. Shumaker Clerk of Court U N IT E D ST A T E S C O U R T O F A P PE A L S T E N T H C IR C U IT NAN CY M ETZLER, Plaintiff-Appellant, v. No. 04-3412 FED ERAL H O ME LO A N BA NK OF TO PEK A a/k/a FH L B AN K TOPEKA, Defendant-Appellee. A ppeal from the U nited States D istrict C ourt for the D istrict of K ansas (D .C . N o. 03-C V -4024-SA C ) Stephen D. Lanterman, Sloan, Eisenbarth, Glassman, M cEntire & Jarboe, L.L.C. (Alan V. Johnson, with him on the briefs), Topeka, Kansas, for PlaintiffAppellant. Patricia E. Riley, W eathers & Riley, Topeka, Kansas, for Defendant-Appellee. Before PO R FIL IO , E B E L , Circuit Judges, and H E R R E R A , District Judge. * E B E L, Circuit Judge. * Honorable Judith C. Herrera, District Court Judge, District of New M exico, sitting by designation. Plaintiff-Appellant Nancy M etzler ( M etzler ) was formerly an employee of Defendant-Appellee Federal Home Loan Bank of Topeka a/k/a FHL Bank of Topeka ( FHLB ). FH LB terminated M etzler from her position as a Database and Systems Analyst in November 2002. M etzler then filed an action under the Family and M edical Leave Act, 29 U.S.C. §§ 2601-54 ( FM LA ) against FHLB alleging: (1) interference with her FM LA-created rights in violation of 29 U.S.C. § 2615(a)(1); and (2) retaliation for exercising her rights under the FM LA in violation of 29 U.S.C. § 2615(a)(2). The district court granted summary judgment for FHLB on both claims. Applying the appropriate summary judgment standard of review, 1 we AFFIRM . BACKGROUND2 Although M etzler began her employment with FH LB on October 20, 1986, the real conflicts that form the basis of her complaint and this appeal began in September 2002 after the Information Technology ( IT ) Department, with whom 1 W e review the grant of summary judgment de novo, and affirm only if the record, considered in the light most favorable to the plaintiff, establishes no genuine issue of material fact. Jones v. Denver Pub. Sch., 427 F.3d 1315, 1318 (10th Cir. 2005) (citations omitted). 2 In reciting the relevant facts, we view the evidence, and draw reasonable inferences therefrom, in the light most favorable to M etzler. M einers v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir. 2004). -2- she had worked since 1986, reorganized and placed her under a new supervisor. Both before and after the reorganization, M etzler worked as a Database and Systems Analyst ( DBA ). The formal job description for this position remained unchanged throughout her employment: M etzler was responsible for maintaining FHLB s relation database operating system, called M icrosoft Structured Query Language Server ( SQL Server ); installing updates and maintaining the databases, which included data backups, fine tuning, creating indexes, and reviewing and implementing the designs of the bank s application developers ; and assisting programming staff in technical aspects of application selection, development, and support. From June 2000 until M etzler s termination, Phil Andruss was the IT Director. Prior to the reorganization, M etzler worked in the Networks and Systems Group of the IT Department under two different immediate supervisors, both of whom lacked the experience needed properly to manage a DBA like M etzler: from 2000 until April 2002, M etzler s immediate supervisor was Steve M ontgomery, the Network and Systems M anager; and from April 2002 until the reorganization, Kathleen Grote was M etzler s supervisor. On September 16, 2002, the IT Department was reorganized. The reorganization created a new group within the IT Department called the Projects and Support Group. W ith this reorganization, among other things, the -3- responsibilities for functions involving Data Transformation Services ( DTS ) packages, which are standard SQ L server tools that any experienced SQ L Server administrator should know how to use, and documentation of DTSs and backup procedures moved from the programmers and developers to the new Projects and Support Group. M etzler had used DTS for limited purposes prior to the reorganization. Chris M iller, who was familiar with SQL Server and the duties of a DBA and had previously performed DTS packages, became the head of the new Project and Support group. Although M iller had not previously acted as M etzler s immediate supervisor, M iller had managed projects in which M etzler participated. Over the years, M iller and M etzler had developed professional differences of opinion about the manner in which M etzler operated, or should have operated, her databases. Three days before the reorganization, Andruss met individually with every IT Department employee who would be reporting to a new manager after the reorganization. During his meeting with M etzler, he informed her that she would be transferred to the new Projects and Support group and placed under M iller s supervision. M etzler responded that she would rather be fired. M etzler missed work on the first day of the reorganization and worked only part of the next day before going home sick and visiting a doctor. The physician -4- diagnosed M etzler with work-related stress, depression, anxiety, and related symptoms, and ordered her to stay off work for two weeks. On September 30, the physician ordered her to stay off work for one more week. On October 4, the physician issued M etzler a work release order permitting her to return to half-time work. M etzler returned to work on October 8, working four hours per day until FHLB terminated her employment on November 15. At some time prior to M etzler s return to work on October 8, M iller understood that M etzler planned to request retroactive FM LA leave for the time she had been absent. On October 17, M etzler submitted that request for FM LA leave retroactive to September 17, due to her serious health condition, and FHLB approved the leave on October 18. M etzler was therefore deemed to be on full-time FM LA leave from September 17 until her return to work on October 8, and then on reduced schedule leave upon her return to work. Upon her return to work on October 8 through her termination, M etzler maintained the same job title, the description of her position remained unchanged, and she received the same pay and benefits that she received both prior to the reorganization and prior to her FM LA leave. However, as Andruss had informed M etzler on September 13, she w as now part of the new Projects and Support group and under M iller s supervision. The duties and tasks assigned to M etzler in -5- this new group required her to use more advanced features of certain tools than she had previously used. The day after M etzler returned to work part-time, M iller and M ichael Smith, an outside consultant with expertise as a DBA, met with M etzler. M iller and Smith testified that M etzler ignored M iller and avoided communicating with her during the meeting. M etzler acknowledges that it is possible she sat with her back to M iller throughout the meeting. That same day, M iller wrote a formal counseling document ( October 9 counseling document ), which reproved M etzler for being uncommunicative, rude behavior, and the unproductive use of her time, and required M etzler to correct these deficiencies. It also required M etzler to update M iller daily regarding her project status and imposed an October 17 deadline for a specific assignment. The October 9 counseling document concluded: W e need you and your background knowledge, but we cannot afford an employee that cannot work as part of the team and be productive. If these items do not dramatically improve w ithin the next 2 weeks or other deadlines established, you will be counseled further, up to and including termination. M iller gave the document to M etzler at the end of M etzler s work day on October 9. M iller testified that she issued the October 9 counseling document because she observed that M etzler s unproductive habits and attitude problems were recurring and she wanted M etzler to understand such problems were no longer acceptable. -6- M etzler signed the document, noted her disagreement, and later submitted a response to it. However, M etzler failed to provide M iller with the daily status reports required by the counseling document until October 15 because M etzler erroneously believed that M iller had access to M etzler s electronic payroll timesheets, which would have reflected the same information. On October 23, M iller assigned M etzler the task of adjusting certain numbers in one of FHLB s databases with a deadline of the following day, believing the task should take approximately two hours. M etzler explained to M iller, in her report on October 25, that the task would actually take approximately four hours. M etzler completed the assignment seven days later, on October 30. M iller also assigned M etzler the task of reviewing documentation for a backup of a particular system, the network, and the hot site with deadlines of October 25, 28 and 29, respectively for each task. M etzler completed the assignments on November 1. On October 29, M etzler met with M iller and Dina Cox, FH LB s Director of Human Resources, to discuss the October 9 counseling document. M etzler testified that she told M iller and Cox she thought she was being treated unfairly because of her FM LA leave. During that meeting, M etzler admitted that she missed some deadlines, but expressed her belief that many of these deadlines w ere unreasonably short. After revisions by Andruss and Cox, M iller completed a final -7- version of a written response to M etzler s objections to the October 9 counseling document, which stated, among other things: I strongly disagree with Nancy [M etzler] s position that she should not have to perform like everyone else because she has been ill. Nancy & her D octor decided the appropriate time she could come back to w ork and that she would be able to work 4 hours per day. The expectation is that she would work and be productive for those 4 hours each day. Nancy seems to think she should have a transition period of showing up for work but not having to really do anything. On November 4, M iller assigned M etzler to write a series of six DTS packages to transfer data from one database to another. M iller estimated that the first package w ould require three hours and the other five would require two hours each a total of 13 hours and set the deadlines for these tasks as November 4, 5, 6, and 7. Before delivering these assignments to M etzler, M iller had her time estimations reviewed by Smith, the outside consultant with expertise as a DBS; Andruss, the IT Director; and Bill M cSpadden, the bank s applications development manager, to ensure the amount of time given was reasonable. A ll three told M iller her time estimations were reasonable. On the same day that M iller gave M etzler the assignments and corresponding deadlines, M etzler complained about one particular deadline to her co-w orker, Anita W right. Wright, in turn, spoke with Cox and told her that it looked like a couple more hours needed to be added to several of M iller s time estimates. Cox, in turn, spoke to M iller about one specific deadline, and M iller -8- extended it from three to twelve hours. Between November 4, when the tasks were assigned, and November 15, when FHLB terminated her, M etzler worked forty hours. As of her termination, however, M etzler had not completed any of the six DTS packages assignments. M iller drafted another counseling document on the same day she extended M etzler s deadline by nine hours, which criticized M etzler for lack of productivity and missed deadlines. After M iller gave the document to Cox for review, Cox advised M iller not to deliver it to M etzler. Instead, over the next few weeks Cox held several meetings including one on November 7 and another on November 13 between herself, M etzler, M iller, and at least once, Andruss, to attempt to improve M etzler s productivity and communications between M etzler and M iller. During these meetings, M etzler was not informed that her w ork performance was so deficient that her job was in jeopardy. On November 11, M iller prepared a memorandum to Andruss and Brad Hodges, FH LB s Senior Vice President for Housing, Technology and Planning, recommending that M etzler s employment be terminated ( N ovember 11 memo ). Then, on November 13, M iller prepared another counseling document that she intended to deliver to M etzler, but she first gave to it Cox to review. Cox advised M iller to proceed with termination rather than deliver the counseling statement. -9- Later that day, M iller, Cox, Andruss, and Hodges met to discuss whether M etzler was able to meet her assigned job responsibilities or whether FHLB needed to find someone else who could produce the level of work required. Cox testified that the decision to terminate M etzler due to the effect of M etzler s failure to meet deadlines, her uncooperativeness, and the effect of her negative attitude on the whole team w as made jointly and based, at least partially, on M iller s November 11 memo. FH LB terminated M etzler s employment effective November 15, 2002. M etzler then brought an action in federal district court for the District of Kansas alleging violations of 29 U.S.C. § 2615(a)(1) and (2) of the FM LA. In an order dated September 21, 2004, the district court granted summary judgment for FHLB on the § 2615(a)(1) claim after finding that M etzler failed to state a viable interference claim and that her claim was more properly analyzed as a retaliation claim. The district court further found that M etzler failed to show pretext and granted summary judgment for FHLB on the § 2615(a)(2) retaliation claim. O n appeal, M etzler argues that she stated a viable claim for FM LA interference and that the district court erred in granting summary judgment for FH LB on both her § 2615(a)(1) and (2) claims. D ISC U SSIO N - 10 - This circuit has recognized two theories of recovery under § 2615(a): an entitlement or interference theory arising from § 2615(a)(1), and a retaliation or discrimination theory arising from § 2615(a)(2). 3 See Smith v. Diffee FordLincoln-M ercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002). The distinction between these two theories is important because the elements and burdens of proof that apply to § 2615(a)(1) claims differ from those that apply to § 2615(a)(2) claims, see id. at 960-62, and we therefore analyze M etzler s claims separately. I. R etaliation C laim Retaliation claims under the FM LA are subject to the burden-shifting analysis of M cDonnell D ouglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Doebele v. Sprint/U nited M gmt. Co., 342 F.3d 1117, 1135 (10th Cir. 2003). 3 Section 2615(a) provides: (a) Interference with rights (1) Exercise of rights It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter. (2) Discrimination It shall be unlawful for any employer to discharge or in any other manner discrim inate against any individual for opposing any practice made unlawful by this subchapter. 29 U.S.C. § 2615(a). Employees are authorized under 29 U.S.C.§ 2617(a) to bring a cause of action for violations of § 2615(a). - 11 - Under this analysis, the plaintiff bears the initial burden of establishing a prima facie case of retaliation. Id. If the plaintiff does so, then the defendant must offer a legitimate, non-retaliatory reason for the employment action. Id. The plaintiff then bears the ultimate burden of demonstrating that the defendant s proffered reason is pretextual. Id.; see also Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1263 (10th Cir.1998) (explaining that plaintiff has the ultimate burden of demonstrating that the challenged employment decision was the result of intentional retaliation). A. Prim a Facie C ase of R etaliation To state a prima facie case of retaliation, M etzler must show that: (1) she engaged in a protected activity; (2) FHLB took an action that a reasonable employee would have found materially adverse; 4 and (3) there exists a causal 4 W e had previously held that a prima facie case of retaliation under both Title VII and the FM LA required an adverse employment action. See, e.g., M aldonado v. City of A ltus, 433 F.3d 1294, 1308 (10th Cir. 2006) (Title VII); Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1104 (10th Cir. 2005) (FM LA). W e noted in Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193 (10th Cir. 2006), however, that the Supreme Court recently rejected our adverse employment action standard, by holding that a Title VII retaliation claim plaintiff need only show that a reasonable employee would have found the challenged action materially adverse. Id. at 1202 n.2 (quoting Burlington N. & Santa Fe R y. C o. v. White, 126 S. Ct. 2405, 2414-15 (2006)). Subsequently, we (continued...) - 12 - connection between the protected activity and the adverse action. See Argo, 452 F.3d at 1202; Chavez, 396 F.3d at 1104. The first two of these requirements are clearly met in this case M etzler engaged in a protected activity by taking FM LA leave for a serious health condition and FH LB was aware of such leave, and any reasonable employee would have found termination materially adverse. The third element, then, remains the only one on which it is questionable whether M etzler made a sufficient showing. To establish the third element of a prima facie case of retaliation, M etzler must show a causal connection between her protected activity of taking FM LA leave and FHLB s decision to terminate her employment. The critical inquiry at this prima facie stage is whether the plaintiff has demonstrated that the [employer s] action occurred under circumstances which give rise to an inference of unlawful discrimination. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 4 (...continued) extended W hite to A DEA and ADA plaintiffs. See Haynes v. Level 3 Commc ns, LLC, 456 F.3d 1215, 2006 W L 2258836, at *1, 8 (10th Cir. 2006) (holding that a Title VII, ADEA, or ADA plaintiff must show: (1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action ) (quotations omitted). Because [t]he FM LA s [retaliation] clause is derived from Title VII and is [thus] intended to be construed in the same manner, Duckworth v. Pratt & W hitney, Inc., 152 F.3d 1, 9 n.8 (1st Cir. 1998) (alterations omitted) (quoting S. Rep. No. 103-3, at 34 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 36), the Supreme Court s rejection of our adverse employment action requirement applies with equal force in the context of an FM LA retaliation case. - 13 - 1221 (10th Cir. 2002) (quotations omitted). W e have repeatedly recognized temporal proximity between protected conduct and termination as relevant evidence of a causal connection sufficient to justify an inference of retaliatory motive. See, e.g., Haynes, 456 F.3d 1215, 2006 W L 2258836, at *9. W e have emphasized, however, that a plaintiff may rely on temporal proximity alone only if the termination is very closely connected in time to the protected activity. Anderson v. Coors B rewing, 181 F.3d 1171, 1179 (10th Cir. 1999) (emphasis in original). Here, the record indicates that M etzler submitted her formal request for retroactive FM LA leave on October 17, 2002 and that FH LB approved it the follow ing day. Viewed in a light most favorable to M etzler, the record also indicates that M iller knew of M etzler s intent to invoke FM LA rights for her absence sometime between the beginning of M etzler s absence from work (September 17) and her return to w ork (O ctober 8). As a result, M etzler s termination occurred at most about 6 weeks after FHLB knew M etzler intended to engage in protected activity and within as little as four weeks of M etzler s request for FM LA-protected leave. Because her termination was therefore very closely connected in time to her protected FM LA activity, id., she has established the third, and final, element of her prima facie case. Compare Ramirez v. Okla. D ept. of M ental Health, 41 F.3d 584, 596 (10th Cir. 1994) (holding that a one and one- - 14 - half month period between the protected activity and the adverse action may, by itself, establish causation), overruled on other grounds by Ellis v. Univ. of Kan. M ed. Ctr., 163 F.3d 1186 (10th Cir. 1998), with Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (deciding that a period of three months between the protected activity and the adverse action, standing alone, is not sufficient to establish causation). B. L egitim ate, N onretaliatory R eason for Termination Having established her prima facie case, the burden under M cDonnell Douglas then shifts to FH LB to demonstrate a legitimate, nonretaliatory reason for its termination decision. See Doebele, 342 F.3d at 1135. FHLB asserts that it fired M etzler due to her poor job performance, poor attitude, and failure to maintain adequate job-related skills. Because these reasons are not facially prohibited, the district court correctly concluded that FH LB articulated a legitimate, nonretaliatory reason for terminating M etzler s employment. C. P retext To defeat summary judgment, then, M etzler must show that there is a genuine dispute of material fact as to whether FH LB s explanations for terminating her employment are pretextual. See M ickelson v. New York Life Ins. Co., F.3d , 2006 W L 2468302, at *11 (10th Cir. 2006); Chavez, 396 F.3d at 1104. To establish pretext, M etzler relies on six pieces of circumstantial evidence - 15 - allegedly establishing: (1) the proximate timing of her termination; (2) a pattern of retaliatory conduct; (3) FH LB s prior treatment of her; (4) FH LB s action contrary to its handbook policy; (5) FHLB s documentation of her file in anticipation of litigation; and (6) proof that FH LB s explanation is unworthy of credence. 1. T im ing of M etzler s termination It is undisputed that FHLB discharged M etzler during her FM LA leave. Although temporal proximity is one relevant factor to be considered by the courts in determining whether the employer s explanation is a pretext for retaliation, this court has refused to allow even very close temporal proximity to operate as a proxy for th[e] evidentiary requirement that the plaintiff demonstrate pretext. Annett v. Univ. of Kan., 371 F.3d 1233, 1241 (10th Cir. 2004); M edina v. Income Support Div., 413 F.3d 1131, 1138 (10th Cir. 2005) ( [Temporal proximity] is not alone sufficient to defeat summary judgment. ) (quotations omitted). To raise a fact issue of pretext, M etzler must therefore present evidence of temporal proximity plus circumstantial evidence of retaliatory motive. See, e.g., Pastran v. K-M art Corp., 210 F.3d 1201, 1206-07 (10th Cir. 2000). Here, M etzler relies on the five other pieces of circumstantial evidence to demonstrate that FH LB s alleged explanation for her termination, in addition to the temporal proximity of - 16 - her termination and exercise of protected rights, was a pretext for retaliatory discharge. 2. A pattern of retaliatory conduct Relying on our decision in M arx v. Schnuck M arkets, Inc., 76 F.3d 324 (10th Cir. 1996), M etzler contends that FH LB engaged in a pattern of retaliatory conduct beginning soon after she returned on reduced schedule FM LA leave, which she argues demonstrates pretext. Specifically, M etzler alleges that pattern began with FH LB issuing the October 9 counseling document; continued when FHLB assigned new job duties to M etzler, failed to give her adequate training to perform those new duties, then imposed unreasonable deadlines for completion of those duties; and ultimately culminated in terminating her employment. Although a pattern of retaliatory actions taken by a defendant may preclude summary judgment, id. at 329, M etzler has not established a pattern of conduct giving rise to an inference of retaliatory animus. Even assuming M etzler was assigned new duties upon her return from fulltime FM LA leave, rather than upon the IT section s reorganization, 5 there was no 5 M etzler alleges that her three new duties related to DTS packages. W e note that these allegedly new duties and tasks merely required M etzler to use more advanced features of certain tools than she acknowledged previously using as a D BA . It is therefore not clear that her assignments were actually new. A t her deposition, M etzler admitted that the reorganization shifted the responsibility for writing and documenting application-related DTS packages from the (continued...) - 17 - evidence that the duties were assigned to her in retaliation for taking FM LA leave. M etzler therefore failed to set forth, by sufficient affidavits or other evidence, that she was assigned new duties in retaliation for exercising FM LA rights. Additionally, the record does not support her claim that FHLB failed to provide sufficient training and resources regarding these allegedly new duties. M etzler s job description explicitly stated that she was expected to be able to quickly assimilate and use new technology required to perform her responsibilities. M etzler acknowledged that DTS was a standard DBA tool and that the use of that tool for applications could be learned from manuals and online help resources available to M etzler. Thus, M etzler has also not raised a genuine issue of material fact regarding whether the training or resources provided by FHLB suggests pretext. Finally, nothing about the time estimates within which M etzler was to complete the new job duties suggests pretext. The record indicates that the deadlines imposed on M etzler were developed by M iller (who M etzler describes as having at least some background in SQ L servers), and were reviewed by M ichael Smith (an outside consultant with DBA expertise) and Bill M cSpadden 5 (...continued) programmers to M etzler and Anita W right, who were part of the new Projects and Support group. - 18 - (FHLB s applications development manager who also had some experience as a DBA). The record also indicates that both Smith and M cSpadden assured M iller that her time estimates for the assignments were reasonable, and that M iller adjusted the one time estimate brought to her attention by M etzler as mistaken. Thus, nothing in the record suggests that the deadlines imposed on M etzler were generally unreasonable or that any mistake in the time estimations w as the result of retaliation rather than oversight. E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1322 n.12 (10th Cir. 1992) ( [A] mistaken belief can be a legitimate reason for an employment decision and is not necessarily pretextual. ). This leaves only the October 9 counseling document. A single event cannot logically constitute a pattern of retaliatory conduct sufficient to raise an inference of pretext. In any event, we note that FH LB expressed some concern about M etzler s performance and attitude before she took FM LA-protected leave, which weakens the relevance of the temporal proximity between the O ctober 9 counseling document and the protected activity. See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002) ( Evidence that the employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of the temporal proximity. ). Accordingly, M etzler has not demonstrated a pattern of retaliatory conduct beginning soon after she - 19 - engaged in protected activity and culminating in her eventual discharge that gives rise to the inference that her termination was retaliatory. 3. FH L B s prior treatm ent of M etzler M etzler asserts, as her third piece of circumstantial evidence demonstrating pretext, that FH LB s treatment of her after she invoked her FM LA rights differed from FH LB s prior treatment of her. M etzler contends that, prior to October 8, she had never received a written counseling statement from any of her managers. Additionally, M etzler received overall performance ratings of M eets Expectations on her performance evaluation in 1997, 1998, 1999, 2000, and 2001 (her final year reviewed). For each of these years, M etzler also received ratings of Successful in the areas of Works W ell W ith Others and W orks Efficiently. After her reduced leave schedule began, M etzler received the October 9 counseling document, was required to attend at least two counseling meetings (November 7 and November 11), and was then discharged on November 15 for poor performance and attitude. M etzler claims that this evidence raises an inference of retaliatory motive under our holding in Simms v. Oklahoma ex rel. Dept. of M ental Health, 165 F.3d 1321 (10th Cir. 1999). W hile [e]vidence of pretext may include . . . prior treatment of plaintiff, id. at 1328; see also G arrett, 305 F.3d at 1217 (same), the record does not support M etzler s claim that her evaluations after October 8 differed materially in an - 20 - unexplained way from her evaluations before that date. 6 Instead, the record indicates that M etzler s last three annual evaluations contained negative comm ents about her job skills and/or attitude. Additionally, the record indicates that multiple FHLB managers or consultants expressed doubts about M etzler s performance months before the reorganization and her invocation of FM LA rights. For example, in M arch of 2002, Brad Hodges (IT Director Andruss s supervisor) stated, in a memo to Andruss, that he believed M etzler had retired on the job and suggested that she be asked to resign to replace [the] position with needed skill set. Andruss described M etzler as on the bubble and in need of immediate improvement of her skill set, and recommended, in a report dated August 19, 2002, that M etzler be put on an eight-week probation so that [a] recommendation will be developed to either retain Nancy or if she is unable to adjust to the new reporting structure and discipline imposed . . . she will be replaced. 6 In regard to M etzler s job skills, her annual evaluations contain suggestions for areas of improvement such as: [c]ontinue to strive to learn more about the Bank s business ; [c]ontinued growth of technical skills through specialized training ; work on your general NT and network knowledge. Additionally, in regard to her attitude, her 2000 evaluation states trying to maintain a positive and accepting attitude toward teammates and coworkers. . . . [T]here are times when you seem to become dissatisfied . . . . I m concerned that your sometimes-negativism is causing others . . . to feel you unapproachable at times. . . . - 21 - Additionally, people outside the chain of command at FH LB expressed concern about M etzler. In April or M ay 2002, M ichael Smith, who was hired by FH LB as an outside manager consultant, interviewed each of the employees of the IT Department in an attempt to assess where they might fit in a reorganized department. After his interview with M etzler, he stated in his June 2002 report that: I have struggled for the past couple of months to examine the future of Nancy [M etzler] with FH LB. . . . I feel that her skills are adequate, but not exceptional. I believe that Nancy can do the job that she is responsible for, but I am not sure how dedicated she is to that effort. ... Overall, I feel that Nancy is a possible fit for FHLB. W ith Bill [M ontgomery s] evaluation as she reports to him, FHLB will be able to know if Nancy s skills will be a good fit for the bank. Thus, as the district court found, the documentation of plaintiff s job skills and attitude prior to October 8 is not so distinctively different from documentation of the same after that date . . . . Although M etzler s evaluations before her FM LA leave are to some extent similar to her evaluations after her leave, we have previously held that prior negative comments on their own do not automatically negate an inference of pretext. See Garrett, 305 F.3d at 1218-19 (stating that the mere fact that [the employee s] evaluations bear evidence of past criticism of his work habits does not negate the possibility that the justifications given for [the employee s] . . . negative evaluations . . . are pretextual. A jury could reasonably infer that [the - 22 - employee s] supervisors discriminated against him by inflating and exaggerating long-standing critiques of his performance as a means of exercising racist and ageist animus towards him ). However, there is no evidence in this case to suggest that FHLB s criticism of M etzler was inflat[ed] and exaggerat[ed] as a means of retaliating against M etzler. Instead, the evidence indicates that any change in FH LB s treatment of M etzler coincided with her placement under a new supervisor M iller after the reorganization. W e have previously held that a plaintiff may show pretext by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). In this context, we have defined similarly situated employees as those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline. Rivera v. City and County of Denver, 365 F.3d 912, 922 (10th Cir. 2004) (quotations omitted). Based on this definition, we have held that pretext cannot be inferred where, for example, one supervisor treats one employee one way and another supervisor treats another employee a different way, reasoning that [d]ifferent supervisors will inevitably react differently to employee insubordination. Id. (quoting Kendrick, 220 F.3d at 1233). - 23 - Although M etzler does not claim that she was treated differently than other FH LB employees, she does assert that FH LB s treatment of her prior to taking FM LA leave differed from FHLB s treatment of her after taking such leave. Applying the appropriate analog from cases like Kendrick and Rivera, we do not infer pretext from FH LB s different treatment of M etzler where the alleged different treatment was inflicted by different supervisors that is, treatment by her pre-reorganization supervisors (M ontgomery and Grote) as compared to treatment by her post-reorganization supervisor (M iller) because any difference may be the result of different supervisor s reactions. 7 Considering that one of the 7 Other courts have similarly held that drawing an inference of pretext is even less permissible when a new supervisor is appointed, who is entitled to set his own standards and agenda. Valdivia v. Univ. of Kan. M ed. Ctr., 24 F. Supp. 2d 1169, 1174 (D. Kan. 1998) (quotations omitted); see also Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (holding that differences in the evaluation of an employee s performance do not establish a genuine issue on pretext because [d]ifferent supervisors may impose different standards of behavior, and a new supervisor may decide to enforce policies that a previous supervisor did not consider important ); Rodriguez-Cuervos v. W al-M art Stores, Inc., 181 F.3d 15, 20 (1st Cir. 1999) (finding that the evidence failed to support a finding of pretext after noting that [t]he problem with . . . relying on [the employee s] past performance evaluations is that it fails to take into account the fact that [the employee] was working in different capacities at different stores, under different supervisors with different expectations and disregards the fact that the new supervisor may have had different expectations for [the employee], even if those expectations were contrary to those of . . . prior supervisors ); Orisek v. Am. Inst. of Aeronautics and Astronautics, 938 F. Supp. 185, 191 (S.D.N.Y. 1996) (stating that [a] new manager is allowed to appraise an employee s work according to his or her own expectations, even if those expectations are contrary to a prior manager s expectations ) (quotations omitted). But see Thomas v. (continued...) - 24 - major reasons for reorganizing the IT Department was to have a team in place that affords a reasonable probability of success in effectively developing and implementing FHLB s technology plan, the imposition of stricter work standards is reasonable. Thus, even if the October 9 counseling document reflects these stricter standards or higher expectations by a new manager, it does not constitute evidence that M iller s or the other FH LB supervisors , for that matter application of those standards w as pretextual. Ultimately then, on this record, M etzler has not established that the change in FH LB s treatment of M etzler was based on her invocation of FM LA rights rather than the imposition of different standards of behavior and performance by her new supervisor. 4. FH L B s action contrary to hand book p olicy M etzler contends that, according to the FHLB Employee Handbook, it was written company policy that an employee will be informed if corrective action is necessary as soon as possible after any deficiency in standard of behavior or performance has been identified. W e agree that demonstrating that the defendant acted contrary to a written company policy prescribing the action to be 7 (...continued) Eastman Kodak Co., 183 F.3d 38, 62 (1st Cir. 1999) (finding that the employee met her burden of showing pretext where the employee s scores dropped sharply after she began working under a new supervisor, without indication that the new supervisor was simply a tough grader, especially where the employee s scores appeared low when compared to the scores of other employees under the same new supervisor). - 25 - taken by the defendant under the circumstances may in an appropriate case give rise to a fact issue regarding pretext. Kendrick, 220 F.3d at 1230. However, the facts of this case do not support such a conclusion. Here, even if FHLB s Employee Handbook is interpreted to require FHLB to warn employees that identified deficiencies could result in termination, 8 rather than merely requiring FH LB to inform employees of the deficiencies, the uncontested facts show that FH LB provided such a warning to M etzler. The October 9 counseling document, which M etzler admits receiving, explicitly warned that if [certain deficiencies] do not dramatically improve within the next 2 weeks or other deadlines established, you will be counseled further, up to and including termination. (emphasis added). FHLB therefore complied with its Employee Handbook policy. M etzler therefore has not raised a genuine fact issue regarding whether FHLB complied with the written company policies in its Employee Handbook. 5. FH L B s docum entation of M etzler s file in anticipation of litigation The fifth piece of circumstantial evidence upon which M etzler relies to show pretext consists of FHLB documenting [M etzler s] file in anticipation of 8 The district court concluded that FH LB s Employee Handbook does not require FHLB to provide such a warning to M etzler. The district court concluded that FH LB complied with the Employee Handbook by informing M etzler in the October 9 counseling document of deficiencies in her behavior and performance. - 26 - litigation. W e have previously held that a reasonable jury might consider testimony that documents were prepared in anticipation of litigation as circumstantial evidence of retaliatory motive. Pastran, 210 F.3d at 1206. M etzler asserts that this case is analogous to Pastran because M iller acknowledged in a November 11, 2002 memo that she w as to document problems [w ith M etzler] enough so the Bank was not at risk of losing a lawsuit for unjustified termination, and because she did in fact so document the file with the assistance of Andruss and Cox. W e agree with the district court s conclusion that Pastran, as well as other appellate decisions recognizing documentation in anticipation of litigation as evidence of pretext, are distinguishable from this case. In Pastran, the employee called his employer to ask whether he had lost his job. 210 F.3d at 1204. After replying that he was not sure, the manager consulted with his supervisor and the employer s legal department about preparing statements regarding past employment action taken in relation to the employee. Id. The suspicious timing of that documentation after the fact and in anticipation of litigation reasonably gave rise to an inference of pretext. Id. at 1206; compare W alton v. Nalco Chem. Co., 272 F.3d 13, 23-24 (1st Cir. 2001) (holding that a jury reasonably could have found that [the employer] orchestrated [the employment document] as pretextual support for its [discriminatory] decision to discharge [the employee], - 27 - where the document was prepared only after the employer received notification from the employee s attorney claiming age discrimination); Santiago-Ramos v. Centennial P.R. W ireless Corp., 217 F.3d 46, 56 (1st Cir. 2000) (stating that pretext may be established with evidence that nondiscriminatory reasons were after-the-fact justifications, provided subsequent to the beginning of legal action ), with Shorette v. Rite Aid of M aine, Inc., 155 F.3d 8, 17 (1st Cir. 1998) (holding that the employee failed to demonstrate that the employer s reasons for demoting the employee were pretextual where there was no evidence that management notes were produced after the employee filed suit instead of contemporaneously with the employee s training). Here, M iller testified that she documented the performance of M etzler, and all of her other subordinates, contemporaneously with her dealings with them. And no evidence suggests otherwise. Although M iller s statement in her November 11 memo that part of her goal was to document M etzler s file to avoid the risk of losing a lawsuit for unjustified termination because FHLB may have a lawsuit problem with [M etzler] gives rise to an inference of retaliatory motive, w e do not understand why it is improper for an employer to maintain records regarding an employee s conduct even if it recognizes that the record may be useful in defense against a discrimination claim. Indeed, it would be expected that an employer would do exactly that. Billet v. CIGNA Corp., 940 F.2d 812, - 28 - 826 (3d Cir. 1991), overruled in part on other grounds by St. M ary s Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and by O Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). W e therefore conclude that FH LB s contemporaneous documenting of M etzler s file does not suggest that FHLB created the documents as pretextual support for her retaliatory termination, even if the documents were in part created to avoid or defend against possible future litigation. 6. Proof that FH L B s explanation is unw orthy of credence Relying on Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), the final piece of circumstantial evidence that M etzler claims demonstrates a pretextual explanation for her termination consists of proof that [FHLB s] explanation is unworthy of credence. Specifically, M etzler relies on the United States Supreme Court s explanation that: In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. . . . M oreover, once the employer s justification has been eliminated, discrimination may well be the m ost likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Id. at 147 (2000) (citations omitted); see also Kendrick, 220 F.3d at 1230 ( A plaintiff typically makes a showing of pretext . . . with evidence that the defendant s stated reason for the adverse employment action was false. . . . ). - 29 - M etzler asserts that FH LB s explanations of her termination poor performance and poor attitude were false. In regard to poor performance, M etzler does not controvert FH LB s evidence that she missed most, if not all, of the deadlines imposed for her tasks from October 9 to the date of her termination. Instead, M etzler again argues that several of M iller s time estimates w ere unreasonable and that a reasonable jury could thus infer a retaliatory motive for FHLB s termination of her employment. M etzler s mere allegation that M iller did not honestly believe her time estimations were reasonable, without any supporting evidence, does not raise a genuine issue of material fact, especially in light of other undisputed evidence in the record. See Cone v. Longmont United Hosp. Ass n, 14 F.3d 526, 530 (10th Cir. 1994) (stating that allegations alone will not defeat summary judgment ). Specifically, the record indicates that M iller delivered to M etzler the time estimates for her assignments only after she had them reviewed by Smith and M cSpadden, both of whom assured M iller that the time estimates were reasonable. The fact that the time estimates may have been incorrect does not give rise to an inference that M iller, Smith, or M cSpadden did not honestly believe M iller s time estimations were reasonable because a mistaken belief can be a legitimate reason for an employment decision and is not necessarily pretextual. Flasher, 986 F.2d at 1322 n.12; see also M cKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 - 30 - (10th Cir. 1998) (explaining that the test for converting an articulated motivating reason into pretext is good faith belief ). Furthermore, the actual decision to terminate her was made by Cox, Andruss, Hodges, and Andrew Jetter, FH LB s President. Although the evidence indicates that decision was based on M iller s November 11 memo outlining M etzler s performance and attitude problems and her failure to meet project deadlines, there is no evidence to support a claim that the FHLB decision-makers did not honestly believe the reasons stated in M iller s November 11 memo. 9 This is important because we have held that a challenge of pretext requires us to look at the facts as they appear to the person making the decision to terminate plaintiff. Kendrick, 220 F.3d at 1231; see also Pastran, 210 F.3d at 1206 (explaining that [t]he pertinent question in determining pretext is not whether the employer was right to think the employee engaged in misconduct, but whether 9 W e note that in certain circumstances, an employer can be held liable for a subordinate employee s prejudice even if the decision-maker lacked the required intent where the decision-maker failed to independently investigate the subordinate s complaint against the former employee and instead merely followed the biased recommendation of the subordinate. See English v. Colo. Dept. of C orr., 248 F.3d 1002, 1011 (10th Cir. 2001) (referring to this as a cat s paw theory). The district court refused to consider this theory, however, after concluding that M etzler raised it for the first time in her summary judgment reply brief without ever raising it in her initial response to FHLB s motion for sum mary judgment. M etzler has not raised this issue on appeal, and we therefore need not determine w hether the district court properly disregarded it. See State Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). - 31 - that belief was genuine or pretextual ) (quotations omitted). W ithout evidence indicating that these decision-makers did not honestly believe the reasons expressed in M iller s November 11 memo, M etzler has not raised a genuine issue of material fact regarding FHLB s explanation that M etzler was terminated, in part, because she repeatedly missed deadlines. FH LB also claims that it terminated M etzler because of her poor attitude and failure to maintain adequate job-related skills. M etzler generally disputes that her attitude was as FH LB describes and that her knowledge and performance were as FH LB assessed. Even assuming M etzler subjectively believed she did not have a poor attitude or that her knowledge and performance were up to par, [i]t is the manager s perception of the employee s performance that is relevant, not plaintiff s subjective evaluation of [her] own relative performance. Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996). No evidence suggests that M iller, or the FHLB decision-makers, did not genuinely perceive M etzler as having a poor attitude and inadequate job skills. Accordingly, M etzler has not raised a genuine issue of material fact regarding FH LB s explanation that M etzler was terminated, in part, because of a poor attitude and lack of adequate job skills. D. C onclusion - 32 - W hile evidence of temporal proximity in combination with additional circumstantial evidence may give rise to an genuine issue of material fact regarding whether an employer offered a pretextual reason for terminating an employee, see M arx, 76 F.3d at 329, the record in this case indicates that M etzler was terminated for her failure to meet deadlines and other poor job performance, poor attitude, and failure to maintain adequate job-related skills. W ithout evidence to demonstrate that FHLB s given reasons for terminating her are so weak, implausible, inconsistent, incoherent, or contradictory as to support a reasonable inference that FH LB did not act for those reasons, see M edina, 413 F.3d at 1138, we conclude that M etzler has failed to meet her burden to demonstrate pretext. Accordingly, we AFFIRM summary judgment in favor of FHLB on M etzler s FM LA retaliation claim. II. In terference or E ntitlem ent C laim The FM LA guarantees the substantive rights of up to twelve weeks of unpaid leave for eligible employees of covered employers for serious health conditions and reinstatement to the former position or an equivalent one upon return from that leave. 29 U.S.C. §§ 2612(a)(1), 2614(a). Under the FM LA, an employer may not interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FM LA]. Id. § 2615(a)(1). To prevail on an interference or entitlement theory, the plaintiff must demonstrate: (1) that - 33 - he [or she] was entitled to FM LA leave, (2) that some adverse action by the employer interfered with his [or her] right to take FM LA leave, and (3) that the employer s action was related to the exercise or attempted exercise of his FM LA rights. Jones, 427 F.3d at 1319. Under this theory, a denial, interference, or restraint of FM LA rights is a violation regardless of the employer s intent, Bones v. Honeywell Int l, Inc., 366 F.3d 869, 877 (10th Cir. 2004) (citing Smith, 298 F.3d at 960), and the M cDonnell Douglas burden-shifting analysis does not apply to interference claims, Smith 298 F.3d at 963. Section 2615(a)(1) is nevertheless not a strict liability statute. See 29 U.S.C. § 2614(a)(3)(B) ( Nothing in this section shall be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave. ); 29 C.F.R. § 825.216(a) ( An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FM LA leave period. ); see also Smith, 298 F.3d at 960 ( [A]n employee who requests FM LA leave would have no greater protections against his or her employment being terminated for reasons not related to his or her FM LA request than he or she did before submitting the request. ) (quotations omitted). Thus, an employee may be dismissed, preventing her from exercising her statutory - 34 - right to FM LA leave [or reinstatement after leave] . . . if the dismissal would have occurred regardless of the employee s request for or taking of FM LA leave. Smith, 298 F.3d at 961 (citing Gunnell, 152 F.3d at 1262). The burden to demonstrate that an employee, laid off during FM LA leave, would have been dismissed regardless of the employee s request for, or taking of, FM LA leave is on the defendant-employer. Id. at 963; see also 29 C.F.R. § 825.216(a) ( An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. ). FH LB stipulated that M etzler was entitled to FM LA leave for a serious medical condition, thereby establishing the first element of her prima facie case. In regard to the second element, M etzler contends the defendant interfered with her FM LA substantive rights by wrongfully terminating her employment for deficiently performing new job duties, which w ere assigned to her upon her return from FM LA and for which FHLB failed adequately to train her to perform. 1 0 By 10 The district court granted FHLB s motion for summary judgment on M etzler s interference claim based, in part, on its conclusion that, [b]y failing to make any substantive arguments concerning her theories regarding new jobs and failure to train, plaintiff . . . waived them as independent [interference] claims. M etzler does not contend that she did in fact argue new duties and failure to train as independent theories of interference in the brief she submitted to the district court, nor does she challenge the district court s determination that she waived these theories as independent claims. Instead, M etzler properly focuses her (continued...) - 35 - terminating M etzler s employment, FHLB interfered with her right to take up to the twelve weeks to which she was entitled under § 2612(a)(1) and denied her the right to be reinstated to her former position or an equivalent one upon her return to full-time work, thereby establishing the second element of M etzler s prima facie interference claim. 1 1 The critical inquiry, then, is whether M etzler has alleged and presented evidence that there is a causal connection between her termination and her exercise of FM LA rights the third element of her prima facie case. 10 (...continued) interference claim on her termination, rather than the alleged assignment of new duties or failure to adequately train her to perform those duties, because only her termination caused her to suffer lost compensation and other actual monetary losses. See W alker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001) ( Section 2617(a)(1) does not provide for compensatory damages in general, but is instead expressly limited to lost compensation and other actual monetary losses. ). W hether new duties and failure to train constitute independent interference claims is therefore not before us, and we therefore focus only on M etzler s termination theory. M hoon, 31 F.3d at 984 n.7. 11 The district court concluded that M etzler s interference claim arising from her termination theory was properly analyzed as a retaliation claim not an interference claim, and it therefore ruled that M etzler failed to state a viable interference claim. Based on the allegations in this case, we disagree with that conclusion. See Smith, 298 F.3d at 961-62 (affirming the district court s denial of the employer s motion for judgment notwithstanding the verdict where the employee properly alleged and proved an interference by termination claim; stating [t]he fact that the interference/entitlement theory and the retaliation/discrimination theory are recognized as separate theories makes it evident . . .that retaliation is not the only impermissible reason for dismissal ). - 36 - M etzler contends that a causal connection exists based on the following chain of events: M etzler took reduced leave, as a result FH LB adjusted her duties but failed to adequately train her for them, as a further result she performed the duties deficiently, and as an ultimate result FHLB terminated her employment. Fatally, however, in her deposition M etzler could not state her FM LA leave as the reason FHLB assigned new duties to her. This concession breaks M etzler s alleged causal chain. Accordingly, any reason for terminating [her] employment would not involve FM LA, and consequently that statute can offer [her] no relief on her interference claim. Gunnell, 152 F.3d at 1262 (affirming summary judgment in favor of employer on employee s interference claim, where the employee specifically refused to argue that she was fired because of her FM LA request and, consequently, employee failed to demonstrate that her FM LA leave was connected to her termination). Summary judgment on M etzler s interference claim was therefore appropriate. 1 2 12 As noted earlier, Section 2615(a)(1) is not a strict liability statute. See 29 U.S.C. § 2614(a)(3)(B); 29 C.F.R. § 825.216(a); see also Smith, 298 F.3d at 960. Even if M etzler established her prima facie case of showing a causal relationship between her claim of FHLB benefits and her termination (which she did not show), summary judgment in FHLB s favor is still appropriate if FHLB demonstrates that she would have been dismissed regardless of [her] request for or taking of FM LA leave. Smith, 298 F.3d at 961. FHLB has met this burden. As noted in our analysis of M etzler s retaliation claim, the record in this case, even when viewed in a light most favorable to M etzler, indicates that FH LB had previously given M etzler at least one warning the October 9 counseling (continued...) - 37 - C O N C L U SIO N For the foregoing reasons, we AFFIRM the judgment of the district court granting summary judgment in favor of FHLB on both M etzler s retaliation claim and her interference claim. 12 (...continued) document that the failure to improve her attitude and meet important deadlines could lead to her termination. M etzler does not deny that she subsequently failed to meet deadlines, which were imposed by her immediate supervisor and determined reasonable by others within and outside FHLB. The evidence therefore supports FH LB s claim that M etzler would have been terminated for failure to meet deadlines regardless of her FM LA leave. See Bones, 366 F.3d at 877-78 (affirming summary judgment for the employer on employee s interference claim where the evidence demonstrated that the employee had a history of tardiness and non-compliance with the absentee policy; the employer had previously given the employee warnings that her failure to notify her supervisor of her absences would lead to her termination; and the employee failed to comply with the policy on the dates for w hich she was terminated). Accordingly, FH LB is entitled to summary judgment on M etzler s interference claim despite the fact that it terminated her while she was on FM LA leave. - 38 -
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