United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
JOHN G. HEYBURN, II, District Judge.
Five former employees of Kentucky Spine allege they were demoted and/or discharged for impermissible reasons. All assert they were discharged in retaliation for reporting or opposing sexual harassment in the workplace. The present motion seeks dismissal of the alternative theories of two plaintiffs. Vonda Campbell claims Defendants terminated her for taking leave under the Family and Medical Leave Act ("FMLA"). Patricia Vignes claims she was demoted and/or terminated because of her age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") and the Kentucky Civil Rights Act ("KCRA, " K.R.S. § 344).
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party may support the motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). On those issues for which it shoulders the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the nonmoving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (emphasis and citation omitted). For those issues on which the moving party will not have the burden of proof at trial, the movant must "point out to the district court... that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings, but must go beyond the pleadings and "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). The nonmoving party "must set forth specific facts showing there is a genuine issue for trial." FED. R. CIV. P. 56(e).
Vonda Campbell ("Campbell") began working as an Office Coordinator in Kentucky Spine's Elizabethtown office in June 2008. In October 2008, she agreed to transfer to the Louisville office. Liz Pope served as Campbell's immediate supervisor.
On January 16, 2009, after arriving late to work 20 times in three months, Campbell received documented counseling regarding Defendants' attendance and punctuality policy and was placed on three months of probation. The probationary period apparently passed without incident.
On the evening of June 30, 2009, Campbell was hospitalized and underwent emergency surgery. She requested and was retroactively approved for 12 full weeks of FMLA leave.
Campbell returned to work in mid-September 2009 in the position of Office Coordinator. Campbell claims Pope began harassing her at this point. At her yearly evaluation, Pope allegedly told Campbell that she was not a very good employee, did not work well with others, and came to work with uncombed hair and wrinkled scrubs. Though Campbell claims she returned from leave fully capable of performing the duties of any clerical position, Campbell alleges Pope made "constant" comments about Campbell's getting work done in time (else get fired) and Pope's perception that Campbell was unable to do her job because of her health issues. Campbell reported Pope's behavior to Human Resources officer Brenda Sibert and Pope's immediate supervisor, then-Team Leader Viktor Bunkovsky.
Campbell's issues with tardiness continued. Bunkovsky emailed Campbell on November 25, 2009 to address the problem. Sometime later, he flew up from Florida to meet with her. At this meeting, Bunkovsky allegedly "threatened that while he could terminate [her] for lateness[, ] nothing would be done if [she] would just be a team player and stop [her] complaints of harassment." Campbell claims in her responsive briefing that after this meeting, she "fear[ed] for her job" and stopped complaining, but in her EEOC complaint, Campbell claimed she confronted Pope about the perceived harassment in February 2010.
In April 2010, after Campbell arrived late to work 23 times between January 17, 2010 and April 15, 2010, Assistant Team Leader Melissa Watkins terminated Campbell. The termination documentation noted her lack of improvement in this area and recited the disciplinary actions taken in January and November 2009. It also stated that Campbell was "in the negative" with unpaid hours, listing an amount of hours that included Campbell's unpaid FMLA time from summer 2009.
Campbell says that Defendants terminated her in retaliation for taking FMLA leave. To survive summary judgment, Campbell must make a prima facie showing of the following elements: (1) she engaged in activity protected by the FMLA; (2) she suffered some adverse employment action; and (3) existence of a causal connection between the protected activity and the adverse action. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). Because Campbell attempts to establish retaliation solely through indirect, circumstantial evidence, the Court employs the familiar tripartite burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).
As an initial matter, the only FMLA leave pertinent to Campbell's claim of retaliation is the leave approved for June 30 through September 21, 2009. Plaintiff claims that she was terminated in April 2010 right after missing three days for blood work related to the health issue from summer 2009 but has not established that she gave notice of the need for FMLA leave in April or that her employer should have known the days qualified as such. The Sixth Circuit has said that "nothing in the statute places a duty on an employer to affirmatively grant leave without such a request or notice by an employee. Rather, to invoke the protection of the FMLA, an employee must provide notice and a qualifying reason ...