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Wallner v. J.J.B. Hilliard, W.L. Lyons, LLC

United States District Court, Sixth Circuit

November 4, 2013

J.J.B. HILLIARD, W.L. LYONS, LLC, Defendant.


CHARLES R. SIMPSON, III, Senior District Judge.

This case is before the Court on a motion for summary judgment filed by the Defendant, J.J.B. Hilliard, W.L. Lyons, LLC ("Hilliard"), against the Plaintiff, Jeanne Lee Wallner ("Wallner") (DN 41). For the reasons set forth herein, the Court will grant Hilliard's Motion for Summary Judgment.


Unless otherwise indicated, the following facts are undisputed. Hilliard is a full-service brokerage firm that provides wealth management services and financial advice to clients throughout the country. In August 1982, Hilliard hired Wallner to work as an Options Trader at its corporate headquarters in Louisville, Kentucky. (Wallner Dep., DN 50-9, at 65:01-04). Among other things, Wallner's duties as an Options Trader included assisting financial consultants with options orders and managing client accounts. Id. at 101:17-23.

At the time she was hired, the Options Department was supervised by Larry Oxman ("Oxman"). Id. at 97:06-08. In 1998, Oxman retired and was replaced by Dennis Moorman ("Moorman"). Id. at 97:06-10. As manager, Moorman established procedures for coordinating vacation and personal time in order to ensure that there would always be at least two employees in the office. (Moorman Dep., DN 50-7, at 32:19-33:04). Although Moorman believed it was important to have a fully-staffed office, see id. at 26:10-15, he regularly allowed Wallner to take time off. In addition to vacation time, Moorman permitted Wallner to take several weeks of leave when necessary for medical reasons.[1] During this period, Wallner described her relationship with Moorman as "great." See (Wallner Dep., DN 50-9, at 69:06-16).

i. Wallner's Tardiness

At some point between 2003-2007, Wallner began frequently arriving late to work.[2] Although Moorman never documented Wallner's tardiness in his Performance Appraisals, he testified that her tardiness had become a "major problem, " (Moorman Dep., DN 50-7, at 57:01-06), about which he had spoken to her on several different occasions, id. at 58:14-59:02. According to Moorman, his understanding was that Performance Appraisals were intended to evaluate an employee's "performance on the job, " id. at 58:01-09, not collateral issues such as tardiness, id. at 56:09-16. Thus, rather than report Wallner's tardiness on his Performance Appraisals, Moorman informally warned Moorman that her excessive tardiness was unacceptable. Id. at 58:14-20.

Despite Moorman's repeated warnings, Wallner's tardiness continued to be an issue.[3] Eventually, at some point in 2008, Moorman discussed the problem with his superior, Gary England ("England").[4] (England Dep., DN 50-2, at 24:05-21). Moorman told England about Wallner's excessive tardiness and explained that it had created morale problems within the Options Department. Id. In response, England instructed Moorman that he should proceed in accordance with Hilliard's disciplinary policy if Wallner's tardiness continued. Id. at 24:22-25:05.

ii. Wallner's Unexcused Absence

In January 2009, Wallner took an unscheduled absence from work. Wallner was scheduled to leave for vacation at 7:00 PM on Thursday, January 8, 2009, but the day before she left, she received an e-mail from American Airlines informing her that her flight had been rescheduled and would now be leaving on Thursday morning at 7:00 AM. (Wallner Dep., DN 50-9, at 173:03-05). Wallner called Moorman Wednesday night and asked if she could skip work on Thursday so that she could catch her flight. Id. at 173:12-15. Although Moorman was displeased that Wallner had not requested the day off in advance, he told her to "go ahead" and leave on the rescheduled flight. Id. at 173:16-17. With Moorman's permission, Wallner left on the rescheduled flight and consequently did not show up to work on January 8, 2009. See id. at 172-174.[5]

When Wallner returned to work after her vacation, Moorman presented her with a formal written warning addressing both her tardiness and her unscheduled absence. Id. at 169:24-171:25. Among other things, the warning stated that "[a]ny further unscheduled absences or tardiness will be subject to further disciplinary action up to and including termination." (Wallner Dep., DN 41-5, at Exhibit 12). Although Wallner disputed that she had been tardy and believed that her January 8 absence had been excused, (Wallner Dep., DN 50-9, at 172:02-05), she signed the warning in recognition of the fact that she had received it and was aware of the potential consequences of future misconduct, (Wallner Dep., DN 50-10, at 186:02-13).

iii. Wallner's FMLA Leave

Later that year, on June 5, 2009, Wallner visited a doctor about problems she was experiencing with her right knee. Id. at 191:20-192:02. Ultimately, the doctor concluded that Wallner needed a knee replacement, see id., and scheduled her for surgery on August 11, 2009, id. at 193:12-14. After her appointment, Wallner told Moorman about her upcoming surgery and informed him that she may need as many as six weeks off work. Id. at 193:19-25. Moorman then consulted with England, who told him that Wallner could take up to 12 weeks of leave under the Family Medical Leave Act. (England Dep., DN 50-2, at 41:18-42:03). Moorman relayed this information to Wallner and directed her to consult further with Human Resources Assistant Manager Sharon Landgraf ("Landgraf"). (Wallner Dep., DN 50-10, at 198:07-20). Landgraf provided Wallner with several FMLA forms and notices as well as information concerning Hilliard's short-term disability ("STD") program. (Landgraf Dep., DN 50-5, at 68:05-69:10. Landgraf also informed Wallner that, while Wallner's FMLA leave would be administered by Hilliard's Human Resources Department, the STD program would administered by "The Hartford" ("Hartford"), a third-party business insurance company. See id. at 71:06-25.

On July 21, 2009, Wallner returned the FMLA forms accompanied by a statement from her doctor substantiating the medical basis for her leave request. (Wallner Dep., DN 41-5, at Exhibit 16). After receiving these forms, Hilliard approved Wallner's request for FMLA leave beginning on August 11, 2009. See (Landgraf Dep., DN 50-5, at 86:25-88:13). Although Wallner's doctor did not definitively indicate the date on which Wallner would be able to return to work, his report stated that Wallner should not be expected to return for "approximately two months." (Wallner Dep., DN 41-5, at Exhibit 16). According to her own account, Wallner believed that she would not return to work until her doctor had determined that she was medically able to do so. (Wallner Dep., DN 50-10, at 203:07-204:06).

On August 11, 2009, Wallner's doctor operated on her knee and her FMLA leave began as scheduled. Id. at 200:20-25. On August 13, 2009, Wallner received a letter from Hartford informing her that it had approved her for its STD program and she would begin receiving benefits on August 18, 2009, and continuing until September 21, 2009. (Wallner Dep., DN 41-5, at Exhibit 18). In addition, the letter advised Wallner that she would have to provide additional medical documentation in order to extend her STD benefits beyond September 21. Id.

iv. Confusion Regarding Wallner's Return-to-Work Date

During Wallner's FMLA leave, there was confusion regarding when Wallner was planning on returning to work. Because Wallner's STD benefits were scheduled to end on September 21, 2009, Landgraf mistakenly believed that Wallner would be required to return to work on that date. See id. at 227:14-229:01. When Landgraf called Wallner to inform her that she would have to return to work on September 21, Wallner became upset and told her that she was not supposed to return to work until her doctor had approved her. Id. at 228:14-24. Landgraf insisted that she return to work on September 21, at which point Landgraf claims Wallner began yelling at her and Wallner's husband started screaming obscenities in the background. (Landgraf Dep., DN 50-6, at 204:07-205:10). Ultimately, Wallner was able to contact Hartford and obtain an extension of her STD benefits until October 1, 2009. (Wallner Dep., DN 41-5, at Exhibit 20). When Landgraf learned of Hartford's extension, she sent Wallner a letter and left her a voicemail informing her of the extension and instructing her to stay in contact with Hilliard about when she intended to return to work. (Landgraf Dep. DN 41-13, at 184:14-185:01, Exhibit 10). However, Wallner did not receive this letter until October 5, 2009, because she and her husband had left the state to visit their daughter in Arizona. (Wallner Dep., DN 50-10, at 266:11-12). Although Wallner claims that she called Langraf four times in an attempt to return her voicemail, see id. at 269:15-271:03, Landgraf does not recall ever hearing back from Wallner, (Landgraf Dep., DN 50-5, at 115:20-116:10).

Wallner returned to Louisville on Saturday October 3, and went to see her doctor on Monday October 5. (Wallner Dep., DN 50-10, at 272:02-04). After checking Wallner's knee, the doctor determined that she was able to return to work the following day. Id. at 272:05-07. When she left her appointment, Wallner called Moorman and Landgraf to let them know that she would be returning to work the next day. See id. at 272:08-11.

v. Wallner Returns to Work

On Tuesday, October 6, 2009, Wallner returned to work at Hilliard and was reinstated to her position as an Options Trader with the same compensation, benefits, and duties. Id. at 272:21-273:16. That afternoon, however, Wallner received a "Final Written Warning" ("Warning") admonishing her lack of communication with Hilliard about her expected return-towork date as well as her unprofessional conduct during her phone conversation with Landgraf. Id. at 273:21-275:02. Like the warning she had received in January, the Warning provided that "Any future violations of Hilliard's policies... will be subject to further disciplinary action up to and including termination." (Wallner Dep., DN 41-5, at Exhibit 23). Although Wallner objected that it was her husband who had acted unprofessionally, she signed the warning in recognition of the fact that she had received it and that she was aware that future violations could lead to termination. (Wallner Dep., DN 50-10, at 276:18-277:05).

Despite receiving the Warning, Wallner was late to work five out of seven days over the course of the next week. Upset that Wallner was not being a team player, Wallner's co-worker Dunning began recording when Wallner arrived at work each day. (Dunning Dep., DN 41-8, at 5:18-7:04). According to Dunning's records, Wallner arrived at the following times on the following days:

1. October 7, 2009: On Time
2. October 8, 2009: 8:05 AM
3. October 9, 20009: 8:02 AM
4. October 12, 2009: 8:06 AM
5. October 13, 2009: ...

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