# DAVIS v. GOVERNMENT EMPLOYEE INSURANCE COMPANY a/k/a GEICO

> District Court, S.D. Indiana · August 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10168132

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** August 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RACHEL R. DAVIS, )
)
Plaintiff )
) Cause No. 1:19-cv-2723-RLM-MPB
v. )
)
GOVERNMENT EMPLOYEE )
INSURANCE COMPANY a/k/a )
GEICO, )
)
Defendant )

ORDER
Plaintiff Rachel Davis sued GEICO for violations of her Family Medical
Leave Act rights after her employment with GEICO was terminated in May 2019.
GEICO has moved for summary judgment on all of Ms. Davis’s claims. For the
following reasons, the court grants GEICO’s motion [Doc. No. 49] in part and
denies it in part.

I. BACKGROUND
GEICO hired Ms. Davis as a sales representative at GEICO’s call center in
Carmel, Indiana, in December 2013. Ms. Davis’s job duties were to answer calls
from prospective customers, provide customers with an insurance quote, answer
questions during the sales process, and close sales. On the morning of May 2,
2019, Ms. Davis was on a call with a prospective customer when another GEICO
sales representative, Irma Mendoza, approached Ms. Davis. The two women were
previously friends but had a falling out in early 2019. While Ms. Davis was still
on the phone, Ms. Mendoza told Ms. Davis to “keep [Ms. Mendoza’s] name out of
Ms. Davis’s] mouth.” Ms. Davis stood up, and the women exchanged words for
about 30 seconds until two other co-workers, Tyson McKinney (whose desk was

beside Ms. Davis’s) and Reggie Pearson, stepped in to break up the argument.
Mr. McKinney then escorted Ms. Mendoza to the manager’s office.
When Mr. McKinney returned to his desk, words were immediately
exchanged between him and Ms. Davis. Multiple employees heard Ms. Davis
repeatedly call Mr. McKinney derogatory names during their argument, including
“gay,” “soft,” “trash,” “bitch,” “pussy,” “fucking faggot,” and “nigga.” Ms. Davis
disputes having used these words but admits that she was very upset and words
were exchanged. She doesn’t remember exactly what was said during the

argument, and she might have called Mr. McKinney names. Mr. McKinney
became agitated, but Mr. Pearson intervened again and escorted Mr. McKinney
to the manager’s office. Ms. Davis then went to human resources and made a
statement about what all had happened.
Human Resource Manager Rosalynd Jester and Human Resource
Supervisor Trina Davis opened an investigation into the incident later on May 2.
Over the course of two days, Ms. Jester and Ms. Trina Davis interviewed Ms.
Davis, Ms. Mendoza, Mr. McKinney, Mr. Pearson, and three other GEICO

employees who saw the arguments, uncovering the derogatory language that Ms.
Davis directed at Mr. McKinney. Ms. Jester and Ms. Trina Davis reported their
findings to Sales Director Benquetta Williams, who decided to terminate Ms.
Davis based on her use of derogatory language that violated GEICO’s Fair
Workplace Policies. Ms. Davis was notified of her termination on May 6, 2019.
Ms. Mendoza wasn’t terminated but was given a written warning for initiating
the confrontation with Ms. Davis. There is no evidence that either Ms. Mendoza

or Mr. McKinney used derogatory language during their confrontations with Ms.
Davis.

A. Ms. Davis’s FMLA Leave
On October 10, 2018, Ms. Davis was granted intermittent FMLA leave
through July 19, 2019, allowing her to be incapacitated for up to three
occurrences per week not to exceed one day per occurrence.
On April 9, 2019, Ms. Davis was running late for work and texted her

supervisor, Josephus Jordan, at 8:36 A.M. saying that she would be late and
asking for her tardiness to be approved as FMLA leave. The same day, Ms. Davis
and Mr. Jordan had a coaching session (as was periodically common) after which
Mr. Jordan recorded that he “reviewed updated coaching plan with Rachel and
discussed the importance of being here and prompt communication if going to
be late or absent. 180 policies sold is the goal. Gold is the goal.” GEICO’s call-in
policy required Ms. Davis to notify Mr. Jordan of an absence or late arrival at
least 30 minutes before her scheduled start time. Ms. Davis followed up, saying

“I will contact you if I will not make it in by 8:30, as well as continue to be
proficient in all metrics, and I’ll also sell as many policies in a month as possible.
180 is the goal.”
Ms. Davis then visited the human resources office and asked if it was
normal for Mr. Jordan’s comments about Ms. Davis “being here” to be in a
coaching plan. Human resources representative Leslie Timmis sent a note to

human resources representative Romel Swayne asking him: “Can you see Rachel
Davis? She is clearly upset and very afraid to say something about [Mr. Jordan].
She feels as if she is in trouble with her [FMLA leave].” Mr. Swayne made a note
that same day saying that he talked with Ms. Davis about her FMLA leave and
that Ms. Davis “[r]efused to write a statement or move forward with any concern”
about Mr. Jordan’s comments about “being here.” Later that afternoon, Ms.
Davis texted Mr. Jordan asking if he could clock her out for the rest of the day
using her FMLA leave. Mr. Jordan did so.

The next day, April 10, Mr. Jordan and Ms. Davis exchanged text messages
about updating Ms. Davis’s FMLA certification:
Ms. Davis: I’m going to see my doctor today. If you could email the
paperwork to me that would be great. [Ms. Davis’s
personal email]. I’ll let her know what’s going on. I see
her at 930.
Mr. Jordan: Im going to my appointment this morning. I won’t be
coming in until later this morning.
Ms. Davis: Can you send it to my email once you get in?
Mr. Jordan: I have to send it to HR…they are the ones who send it.
That’s why I was saying to talk to your DR. First to make
sure she is able to give an updated recommendation
based on things with you now. After that HR still needs
to review and will make a decision on whether or not to
update based on Dr. Recommendations, business need
& capacity. I will let your coordinator know as soon as I
get in. Another thing to watch out for is how many hours
you are using. Regardless of approvals, you only get
465hrs in a rolling 12 months. I will also let you know
exactly how many hours you have left.
Ms. Davis: Okay
[approximately three hours pass]
Mr. Jordan: I spoke with HR…I am about to submit the request to
update. Your Dr can either request to file new
paperwork or file an adjustment as we discussed. Be on
the lookout for the email. As of today, assuming you
miss the entire day, you currently have 114.81
approved hours left. Once it is finished it will not gain
anytime back until Oct. 2019. That is regardless of any
approvals FML approvals. Just wanted to make sure
you are completely aware. If you have any questions,
please let me know.

Ms. Davis received an email the next day from GEICO’s leave administrator
with the forms need to recertify Ms. Davis’s FMLA leave. Ms. Davis returned the
forms and was approved for FMLA leave for the period of April 10, 2019, through
April 9, 2020, allowing her to be incapacitated for up to three occurrences per
week not to exceed one day per occurrence and take two additional breaks per
day not to exceed 30 minutes per break.
When Ms. Williams terminated Ms. Davis on May 2, 2019, Ms. Williams
was unaware that Ms. Davis was approved for or had taken FMLA leave.

B. Ms. Davis’s Job Application
When Ms. Davis originally submitted her job application with GEICO in
November 2013, she represented that she had left her prior job at Allstate
Insurance because the “job ended.” She also represented that, before Allstate,
she left her job at the Indiana Bureau of Motor Vehicles because she “accepted
opportunity at Allstate.” GEICO discovered during Ms. Davis’s deposition that
neither of these representations were true and that Ms. Davis had been
terminated from both of these positions. GEICO has submitted an affidavit from
Ms. Williams in which she attests that she would’ve terminated Ms. Davis had
she known of Ms. Davis’s misrepresentations.

II. LEGAL STANDARD
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); see also Protective Life Ins. Co. v.
Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011) (“Summary judgment . . . is
proper only if the pleadings, discovery materials, disclosures, and affidavits
demonstrate no genuine issue of material fact such that [the movant] is entitled
to judgment as a matter of law.”). The court’s function at the summary judgment

stage isn’t “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). In making that determination, the court must
construe the evidence, and all inferences that can reasonably be drawn from the
evidence, in the light most favorable to the non-moving party. Id. at 249, 255
(“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions . . . .”). The movant bears
the burden of showing that there is no genuine issue of material fact, but the

non-moving party “may not rest upon mere allegation or denials of his pleading,
but must set forth specific facts showing that there is a genuine issue for trial.”
Id. at 256.
III. DISCUSSION
“The FMLA establishes two categories of protections for employees. First,
the Act provides eligible employees the right to take unpaid leave . . . because of

a serious health condition . . . . After the period of qualified leave expires and the
employee returns to work, she is entitled to be reinstated to her former position
or to an equivalent position with the same benefits and terms of employment.”
Lewis v. School Dist. #70, 523 F.3d 730, 741 (7th Cir. 2008); 29 U.S.C. § 2614(a).
To ensure these rights, “[t]he FMLA makes it ‘unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any
right provided’ under the Act.” Id. (quoting 29 U.S.C. § 2615(a)(1)).
Second, “the FMLA also affords employees protection in the event that they

are retaliated against because of their choice to exercise their rights under the
Act.” Id. The FMLA makes it “unlawful for any employer to discharge or in any
other manner discriminate against any individual for opposing any practice
made unlawful” by the FMLA. 29 U.S.C. § 2615(a)(2). An employer can’t
discriminate or retaliate against an employee for using FMLA leave.
Ms. Davis claims that GEICO violated both of these protections—that
GEICO violated her substantive FMLA rights by interfering with her right to use
FMLA leave, and that GEICO discriminated against and retaliated against her

for using FMLA leave by terminating her. Each of these arguments are discussed
below.
A. Ms. Davis’s FMLA interference claim.
Ms. Davis argues that GEICO violated her substantive rights because (1)
her supervisor, Josephus Jordan, interfered with her FMLA leave by

discouraging her from taking it, and (2) GEICO demanded that Ms. Davis
recertify her FMLA certification even though six months hadn’t passed since Ms.
Davis’s last FMLA certification, constituting a per se violation of Ms. Davis’s
FMLA rights. GEICO says that Ms. Davis wasn’t discouraged from using FMLA
leave, and that Ms. Davis can’t establish a technical violation of the FMLA.
“The burden to prove FMLA interference lies with the plaintiff-employee.”
Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th Cir. 2008). “To prevail
on an FMLA-interference theory, the plaintiff employee must prove that: ‘(1) she

was eligible for the FMLA's protections; (2) her employer was covered by the
FMLA; (3) she was entitled to take leave under the FMLA; (4) she provided
sufficient notice of her intent to take leave; and (5) her employer denied her FMLA
benefits to which she was entitled.’” Pagel v. TIN Inc., 695 F.3d 622, 627 (7th
Cir. 2012) (quoting Makowski v. SmithAmundsen LLC, 662 F.3d 818, 825 (7th
Cir. 2011)). The first four elements aren’t in dispute; GEICO only claims that Ms.
Davis can’t prove the fifth element.
“An interference claim does not require an employee to prove

discriminatory intent on the part of the employer; rather, such a claim requires
only proof that the employer denied the employee his or her entitlements under
the Act.” Scruggs v. Carrier Corp., 688 F.3d 821, 825 (7th Cir. 2012). “The
implementing regulations make clear that the ways in which an employer may
interfere with FMLA benefits are not limited simply to the denial of leave.
Interference also encompasses ‘us[ing] the taking of FMLA leave as a negative
factor in employment actions’ and ‘discouraging an employee from using such

leave.’” Preddie v. Bartholomew Consolidated School Corp., 799 F.3d 806, 818
(7th Cir. 2015) (citing 29 C.F.R. § 825.22(b), (c)). “[T]he critical question is
whether the employer's actions would discourage a reasonable employee from
taking FMLA leave.” Id. at 818 n.35 (citing Cole v. Illinois, 562 F.3d 812, 816
(7th Cir. 2009)).1

1. Ms. Davis’s Supervisor
To back up her argument that Mr. Jordan discouraged her from taking her

FMLA leave, Ms. Davis cites as evidence Mr. Jordan’s comments about “being
here,” Ms. Timmis’s email to Mr. Swayne asking him to speak to Ms. Davis, and
text messages Mr. Jordan sent Ms. Davis concerning her FMLA recertification.
On the morning of April 9, 2019, Ms. Davis had been running late for work
and texted Mr. Jordan last minute asking for her tardiness to be approved as
FMLA leave. Mr. Jordan granted that request even though Ms. Davis hadn’t
complied with GEICO’s call-in policy that required her to notify Mr. Jordan of an

1 Terminating an employee to prevent her from taking FMLA leave might also interfere
with an employee’s FMLA rights, but only if the termination wasn’t for performance-
based reasons. Simpson v. Office of Chief Judge of Circuit Court of Will Cnty., 559
F.3d 706, 712 (7th Cir. 2009). Ms. Davis doesn’t contend that her termination
interfered with her FMLA rights, only that Mr. Jordan’s purported discouragement and
GEICO’s purported request for recertification before her termination did. So the court
won’t analyze the reasons why GEICO fired Ms. Davis in analyzing her FMLA-
interference claim.
absence or late arrival at least 30 minutes before her scheduled start time.
During the coaching session later that day, Mr. Jordan reported: “reviewed
updated coaching plan with Rachel and discussed the importance of being here

and prompt communication if going to be late or absent. 180 policies sold is the
goal. Gold is the goal.” Ms. Davis then spoke to Human Resources, which lead
to Human Resources Representative Leslie Timmis asking Human Resources
Representative Romel Swayne to speak to Ms. Davis because “[s]he is clearly
upset and very afraid to say something about [Mr. Jordan]. She feels as if she is
in trouble with her [FMLA leave].” Mr. Swayne later noted that he spoke with Ms.
Davis and that Ms. Davis “[r]efused to write a statement or move forward with
any concern” about Mr. Jordan’s comments during the coaching session. Ms.

Davis then notified Mr. Jordan that she was leaving early for the day, taking
FMLA leave. The next day, Ms. Davis and Mr. Jordan exchanged text messages
in which Mr. Jordan explained the process of updating Ms. Davis’s FMLA
certification.
On summary judgment, the facts are viewed in the light most favorable to
Ms. Davis (the non-moving party) and every reasonable inference is drawn in her
favor. South v. Illinois Envtl. Prot. Agency, 495 F.3d 747, 751 (7th Cir. 2007) (“It
is not [the court’s] role to evaluate the weight of the evidence, . . . or to determine

the ultimate truth of the matter, but simply to determine whether there exists a
genuine issue of triable fact.”). Ms. Davis had just taken approved intermittent
FMLA leave hours before Mr. Jordan discussed with her the importance of “being
here.” A reasonable juror could conclude that those comments—particularly
considering their proximity in time to Ms. Davis taking FMLA leave—would have
discouraged a reasonable person from taking FMLA leave in the future.
GEICO argues that Ms. Davis was never denied FMLA leave (nor was she

shy about taking it) which shows that GEICO didn’t interfere with Ms. Davis’s
FMLA rights. An employer doesn’t have to succeed in discouraging an employee
from taking FMLA leave to interfere with that employee’s FMLA rights. Jennings
v. Ford Motor Co., 2008 WL 3853369, at *5 (S.D. Ind. Aug. 15, 2008). GEICO
argues that Ms. Timmis’s note to Mr. Swayne should be disregarded as
inadmissible hearsay insofar as it’s offered to prove that Ms. Davis was upset
and very afraid to say something about Mr. Jordan, and that she felt as if she
was in trouble with FMLA leave. The note seems to meet the requirements of

Federal Rule of Evidence 801(d)(2)(D) as an opposing party’s statement and
therefore isn’t hearsay. And evidence that an employer’s actions actually
discouraged an employee from taking FMLA leave can be used as evidence to
support an FMLA-interference claim. Preddie v. Bartholomew consolidated
School Corp., 799 F.3d 806, 818 (7th Cir. 2015).
Ms. Davis claims that the text messages Mr. Jordan sent her the day after
the coaching session show FMLA interference. She argues that Mr. Jordan
“increased the heat” of his discouragement by “demanding that GEICO’s human

resources and FMLA leave departments insist that Ms. Davis have her healthcare
provider recertify Ms. Davis’s need for FMLA leave.”
That argument is unpersuasive. The only evidence she cites is her FMLA
recertification application—which doesn’t provide any information about why
Ms. Davis sought recertification—and the relevant text messages (pp. 4-5,
supra). The text messages show Ms. Davis asking Mr. Jordan to email her the
needed FMLA recertification paperwork and Mr. Jordan explaining how the

FMLA recertification process works. GEICO, on the other hand, cites Mr.
Jordan’s declarations in which he explains that he “told Rachel that if she
wanted to increase her frequency of leave, she should consider getting an
updated certification from her healthcare provider.” And the result of her
recertification was that Ms. Davis’s available intermittent FMLA leave increased.
To defeat a summary judgment motion, “the nonmovant must present definite,
competent evidence in rebuttal,” Parent v. Home Depot U.S.A., Inc., 694 F.3d
919, 922 (7th Cir. 2012), and “must affirmatively demonstrate, by specific factual

allegations, that there is a genuine issue of material fact that requires
trial.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir.
2007); see also Fed. R. Civ. P. 56(e)(2). Ms. Davis hasn’t done that on this point—
the text messages don’t support the existence of a genuine issue of material fact
as to whether a reasonable person would have been discouraged from taking
FMLA leave.

2. Ms. Davis’s FMLA Recertification

Again relying on her FMLA recertification application and Mr. Jordan’s text
messages about FMLA recertification, Ms. Davis argues that GEICO committed
FMLA interference and a per se violation of her FMLA rights by demanding that
she recertify her FMLA leave. Citing 29 C.F.R. § 825.308(b), Ms. Davis says that
GEICO was required to wait six months from her original certification before
requesting a recertification of her FMLA leave. GEICO committed a per se
violation of her FMLA rights because Ms. Davis’s FMLA leave was originally

certified on October 24, 2018, and GEICO demanded recertification on April 11,
2019—13 days short of Ms. Davis’s six-month mark.
But as already explained, Ms. Davis hasn’t provided the court with any
evidence that GEICO or Mr. Jordan demanded that Ms. Davis recertify her FMLA
leave, thereby refuting GEICO’s contention that Mr. Jordan merely suggested
she consider getting an updated certification if she wanted to increase her
frequency of leave. No genuine issue of material fact exists regarding Ms. Davis’s
FMLA-interference claim based on her FMLA recertification.

* * *
A genuine issue of material fact exists regarding Ms. Davis’s FMLA-
interference claim based on Mr. Jordan’s comments about the importance of
“being here” and whether those comments would have discouraged a reasonable
person from taking FMLA leave.

B. Ms. Davis’s FMLA Retaliation Claim
Ms. Davis’s second claim is that GEICO discriminated and retaliated

against her for using FMLA leave. She argues that her role in and reaction to the
fight that Ms. Mendoza started on May 2, 2019, provided GEICO with a pretext
for terminating her, but GEICO’s disparate application of its own rules shows
that GEICO’s true reason for terminating her was because she took FMLA leave.
GEICO says that Ms. Davis was terminated because of the racially discriminatory
and homophobic slurs she directed at Mr. McKinney, and that her termination
had nothing to do with her FMLA leave.

“The difference between a retaliation and interference theory is that the
first requires proof of discriminatory or retaliatory intent while an interference
theory requires only proof that the employer denied the employee his or her
entitlements under the Act.” Goelzer v. Sheboygan County, Wis., 604 F.3d 987,
995 (7th Cir. 2010). “A plaintiff can avert summary judgment on an FMLA
retaliation claim either by proffering direct or circumstantial evidence of her
employer's discriminatory motivation [for taking an adverse employment action],
or by establishing that, after taking FMLA leave, she ‘was treated less favorably

than other similarly situated employees who did not take FMLA leave, even
though she was performing her job in a satisfactory manner.’” Lewis v. Sch. Dist.
# 70, 523 F.3d 730, 741 (7th Cir. 2008) (quoting Burnett v. LFW, Inc., 472 F.3d
471, 481–482 (7th Cir. 2006)). An employee doesn’t have an FMLA retaliation
claim if she would have been fired for poor performance regardless of her FMLA
leave. Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 667 (7th Cir. 2008) (plaintiff
must “submit evidence showing that [the employer] demoted or fired her because
she took valid leave” to survive summary judgment); Kohls v. Beverly Enters.

Wis., Inc., 259 F.3d 799 (7th Cir. 2001).
The proper standard of causation remains unclear. In 2008, the court of
appeals held in Lewis v. Sch. Dist. # 70 that a plaintiff in an FMLA retaliation
case “need not prove that retaliation was the only reason for her termination;
she may establish an FMLA retaliation claim by showing that the protected
conduct was a substantial or motivating factor in the employer's decision.” 523
F.3d 730, 741 (7th Cir. 2008) (internal quotations omitted). The Lewis court cited

Culver v. Gorman & Co.—a Title VII retaliation case—in applying that standard
of causation. Five years later, the Supreme Court in University of Texas
Southwestern Medical Center v. Nassar held that “traditional principles of but-
for causation” apply to Title VII retaliation claims, and that a mere showing that
the protected conduct was motivating factor in the employer's decision was
insufficient. 570 U.S. 338 (2013). The circuit court has since then applied a but-
for standard to FMLA retaliation claims, Riley v. City of Kokomo, 909 F.3d 182,
188 (7th Cir. 2018), but hasn’t expressly overruled the Lewis v. Sch. Dist. # 70

line of cases that apply a motivating factor causation standard. Several other
district courts remain confused on the issue. E.g., Nigh v. School Dist. of Mellen,
50 F. Supp. 3d 1034, 1054-1055 (W.D. Wis. 2014); Haggerty v. St. Vincent
Carmel Hosp., No. 1:17-cv-04454, 2019 WL 2476682, at *20-21 (S.D. Ind. June
13, 2019). The court declines to weigh in on the issue of which standard applies
because even if Ms. Davis only needs to show that her FMLA leave was a
substantial or motivating factor in her termination, her retaliation claim can’t
survive summary judgment—much less under a but-for causation standard.

The evidence Ms. Davis proffers to show GEICO’s discriminatory intent
behind terminating her is more circumstantial than direct. She argues that a
jury could conclude that GEICO’s stated reason for terminating her was pretext
for unlawful retaliation based on the disparate manner in which GEICO
disciplined Ms. Davis as compared to Ms. Mendoza and Mr. McKinney.
Ms. Davis is correct that more favorable treatment of similarly situated

employees outside of her protected class can be evidence of pretext. Coleman v.
Donahoe, 667 F.3d 835, 851 (7th Cir. 2012). “When a plaintiff presents evidence
showing that an employer's explanation has no factual basis, a reasonable
factfinder may infer that (1) the employer is lying about its true motive and (2)
because the employer is in the best position to assert the reason for its decision,
that it offered a false one in order to cover up a discriminatory motive.
Presentation of evidence of this sort creates a genuine issue of material fact as
to whether the employee was fired for a discriminatory reason.” Olsen v. Marshall

& Ilsley Corp., 267 F.3d 597, 601 (7th Cir. 2001).
Showing pretext “normally entails establishing that ‘the [compared]
employees dealt with the same supervisor, were subject to the same standards,
and had engaged in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer's treatment
of them.’” Snipes v. Illinois Dep't of Corrections, 291 F.3d 460, 463 (7th Cir.
2002) (quoting Radue v. Kimberly–Clark Corp., 219 F.3d 612, 617–618 (7th Cir.
2000)). In determining whether GEICO’s stated reason was pretextual, the court

won’t “evaluate whether the stated reason was inaccurate or unfair, but whether
the employer honestly believed the reason it has offered to explain the discharge.
A pretextual decision, then, involves more than just faulty reasoning or mistaken
judgment on the part of the employer; it is a lie, specifically a phony reason for
some action.’” Harden v. Marion County Sheriff’s Dept., 799 F.3d 857, 864 (7th
Cir. 2015) (internal quotations omitted). To show this lie, Ms. Davis “must
identify such weaknesses, implausibilities, inconsistencies, or contradictions in

[GEICO’s] stated reason that a reasonable person could find it unworthy of
credence.” Harper v. C.R. England, Inc., 687 F.3d 297, 311 (7th Cir. 2012).
As evidence of pretext, Ms. Davis recites a litany of GEICO’s rules that Ms.
Mendoza and Mr. McKinney broke but nevertheless weren’t terminated for, even
though Ms. Davis was for only breaking one of GEICO’s rules. Ms. Mendoza and
Mr. McKinney were also never investigated for their rule violations (even though
GEICO had evidence of their noncompliance), but Ms. Davis was. She also argues
that Ms. Mendoza and Mr. McKinney were more to blame for the May 2, 2019

fight, but she was terminated, and they weren’t. Finally, she argues that the
basis on which she was terminated was false by submitting an affidavit that
outright denies she used any offensive slurs against Mr. McKinney.
The problem is that Ms. Davis hasn’t offered any evidence to show that
either Ms. Mendoza or Mr. McKinney engaged in the same type of prohibited
conduct that she was terminated for—specifically, using the racially
discriminatory and homophobic slurs she directed at Mr. McKinney. And while
Ms. Davis offers Ms. Mendoza as a comparator, GEICO cites evidence to show

that Ms. Mendoza also utilized intermittent FMLA leave. Ms. Davis hasn’t
identified an employee outside of her protected class who engaged in similar
conduct, so she is left without a comparator to establish GEICO’s stated reason
for terminating her was pretext. GEICO, on the other hand, interviewed six eye-
witness employees about the language Ms. Davis directed at Mr. McKinney. They
all corroborated each other. GEICO also interviewed Ms. Davis about the
language, and she stated that she “was very upset so [she] might have” called

Mr. McKinney names.
Whether a reasonable juror could conclude that Ms. Davis didn’t actually
use the cited slurs against Mr. McKinney is questionable, but GEICO doesn’t
have to show that. GEICO only has to show that it had an honest belief that Ms.
Davis used the slurs, in other words, that its stated reason for terminating Ms.
Davis wasn’t pretextual. Harden v. Marion County Sheriff’s Dept., 799 F.3d at
864; Carruth v. Continental General Tire, No. 98-cv-4233, 2001 WL 1775992, at
*12-13 (S.D. Ill. June 21, 2001). GEICO has carried that burden; Ms. Davis

hasn’t identified the “weaknesses, implausibilities, inconsistencies, or
contradictions” in GEICO’s stated reason for terminating Ms. Davis such that a
reasonable juror could find that the stated reason was pretext.
In addition to showing that its stated reason wasn’t pretext, GEICO cites
evidence that Ms. Davis’s FMLA leave wasn’t a motivating factor in her
termination. Ms. Williams—the decisionmaker who terminated Ms. Davis—was
unaware of Ms. Davis’s FMLA leave or Ms. Davis’s discussion with Mr. Swayne
when she decided to terminate Ms. Davis. Moreover, Ms. Davis’s conduct

constituted grounds for termination regardless of her FMLA leave. Other than
what was included in her pretext argument, Ms. Davis points to no evidence that
GEICO harbored a discriminatory intent when it terminated her. She hasn’t
shown that a reasonable juror could conclude that her use of FMLA leave was a
motivating factor in GEICO’s decision to terminate her.
Ms. Davis’s affidavit affirmatively denying that she used any offensive slurs

contradicts her earlier deposition testimony that she can’t remember what she
said to Mr. McKinney and that she might have called him names. “As a general
rule, the law of this circuit does not permit a party to create an issue of fact by
submitting an affidavit whose conclusions contradict prior deposition or other
sworn testimony.” Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir.
2000). So when “deposition and affidavit are in conflict, the affidavit is to be
disregarded unless it is demonstrable that the statement in the deposition was
mistaken . . . .” Russell v. Acme–Evans Co., 51 F.3d 64, 67–68 (7th Cir. 1995).

Ms. Davis hasn’t shown that her deposition testimony was mistaken, so the court
disregards her affidavit for summary judgment purposes. The affidavit wouldn’t
have changed the outcome—even considering Ms. Davis’s affidavit attesting that
she didn’t actually use the racially discriminatory and homophobic slurs, GEICO
has offered enough evidence to show that no reasonable juror could find that it
didn’t honestly believed that Ms. Davis used the slurs against Mr. McKinney. So
GEICO’s stated reason for terminating Ms. Davis wasn’t pretext.

C. Ms. Davis’s Cat’s Paw Theory of Liability
Finally, Ms. Davis argues that Ms. Williams didn’t actually make the final
decision to terminate her because Ms. Williams wholly relied on the reports and
the investigation provided to her by subordinates. Thus, even if Ms. Williams
herself didn’t harbor discriminatory animus, Ms. Davis can establish
discriminatory intent behind her termination by showing that Ms. Williams’s
subordinates harbored discriminatory animus against her and affected Ms.

Williams’s termination decision. This is argument is called the “cat’s paw” theory
of liability.
The cat’s paw theory applies “when a biased subordinate who lacks
decision-making power uses the formal decision-maker as a dupe in a deliberate
scheme to trigger a discriminatory employment action. The plaintiff must provide
evidence that the biased subordinate actually harbored discriminatory animus
against the victim of the subject employment action, and evidence that the biased
subordinate's scheme was the proximate cause of the adverse employment

action.” Robinson v. Perales, 894 F.3d 818, 832 (7th Cir. 2018).
Ms. Davis says that a reasonable juror could conclude that Ms. Williams’s
subordinates—including Mr. Jordan and Mr. Swayne—harbored discriminatory
animus because of Mr. Jordan’s remarks about the importance of “being here,”
Mr. Swayne’s conversation with Ms. Davis about those remarks, and their
involvement in Ms. Davis’s FMLA recertification.
Ms. Davis hasn’t identified what exactly was discriminatory about Mr.
Swayne’s follow-up conversation with her about her concerns over Mr. Jordan’s

remarks, or Mr. Jordan’s involvement in helping her obtain FMLA recertification
at her own request. Discriminatory animus can’t be inferred from that evidence.
Furthermore, there is nothing in the record linking Mr. Jordan’s comment
about the importance of “being here” to Ms. Williams decision to terminate Ms.
Davis. “[S]tatements of a person who lacks the final decision-making authority
may be probative of intentional discrimination, but only if that individual
exercised a significant degree of influence over the contested decision.” Nichols

v. Southern Illinois University-Edwardsville, 510 F.3d 772, 781 (2007) (internal
quotations omitted). But “stray remarks that are neither proximate nor related
to the employment decision are insufficient to defeat summary judgment.” Sun
v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 813 (7th Cir. 2007). Nothing in the
record shows that Ms. Williams even knew about the coaching session in which
the “being here” comments were made or about Ms. Davis’s discussion
afterwards with Mr. Swayne. Nothing in the record shows that Mr. Jordan
exercised a significant degree of influence over Ms. Williams’s decision to

terminate Ms. Davis. Mr. Jordan wasn’t at work on the day of the fight, and
neither Ms. Jester or Ms. Trina Davis interviewed Mr. Jordan during their
investigation of Ms. Davis’s use of racially discriminatory and homophobic slurs.
Nothing in the record shows that Ms. Williams consulted Mr. Jordan in
determining whether to terminate Ms. Davis.
With no other evidence to point to, Ms. Davis can’t show that a reasonable
juror could conclude that a subordinate actually harbored discriminatory
animus against her, so her cat’s paw theory of liability fails.

* * *
GEICO is entitled to summary judgment on Ms. Davis’s retaliation claim
because no reasonable juror could conclude that discriminatory animus was a
motivating factor in GEICO’s decision to terminate Ms. Davis.
D. The After-Acquired Evidence Defense
GEICO seeks an order limiting Ms. Davis’s economic damages based on
the after-acquired evidence defense, arguing that if it had known about Ms.

Davis’s terminations from the Indiana Bureau of Motor Vehicles and then from
Allstate, it wouldn’t have hired her in the first place and would have terminated
her if it had learned of the previous terminations during her employment.
“[A]fter-acquired evidence of an employee's misconduct may limit
damages. An employer may be found liable for employment discrimination, but
if the employer later—typically in discovery—turns up evidence of employee
wrongdoing which would have led to the employee's discharge, then the
employee's right to back pay is limited to the period before the discovery of this

after-acquired evidence.” Sheehan v. Donlen Corp., 173 F.3d 1039, 1047 (7th
Cir. 1999) (internal citations omitted). “[T]he inquiry focuses on the employer's
actual employment practices, not just the standards established in its employee
manuals, and reflects a recognition that employers often say they will discharge
employees for certain misconduct while in practice they do not.” Id. at 1048.
“Proving that the same decision would have been justified . . . is not the same as
proving that the same decision would have been made.” Id. The employer must
show by a preponderance of the evidence “that the after-acquired evidence would

have led to her termination.” Id. at 1047-1048. If the employer establishes the
defense, the burden shifts back to the plaintiff “to produce affirmative evidence”
showing that the employer wouldn’t have actually terminated her. Washington
v. Lake County, Ill., 969 F.2d 250, 256 (7th Cir. 1992), rev’d on other grounds,
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
Ms. Davis argues that GEICO hasn’t offered any evidence that it actually

would have terminated her had it known about the reasons for her separation
from her two prior employers to meet its burden in establishing the defense.
GEICO says that it designated such evidence—Ms. Williams’s declaration in
which she says: “Had I known during Rachel Davis’s employment at GEICO that
she had lied on her employment application and committed resume fraud, I
would have requested the matter to be investigated and, if shown to be true,
terminated Ms. Davis’s employment.”
In Washington v. Lake County, Ill., the court of appeals held that a credible

affidavit asserting that the employer would have fired the employee for the
misconduct revealed by after-acquired evidence is sufficient to meet the
employer's burden in establishing the after-acquired evidence defense. 969 F.2d
250, 256 (7th Cir. 1992), rev’d on other grounds, McKennon v. Nashville Banner
Pub. Co., 513 U.S. 352 (1995); see also Coleman v. Keebler Co., 997 F. Supp.
1102, 1122-1123 (N.D. Ind. 1998) (explaining Washington v Lake County, Ill.).
GEICO has met its initial burden in establishing the after-acquired evidence
defense by providing Ms. Williams’s affidavit attesting that Ms. Davis would’ve

been fired if it had known about the reasons for Ms. Davis’s separation from two
of her prior employers. The burden was on Ms. Davis to produce affirmative
evidence to refute GEICO’s evidence, but she hasn’t done so. So GEICO is
entitled to an order limiting Ms. Davis’s economic damages based on the after-
acquired evidence defense. Ms. Davis is precluded from seeking economic
damages beyond January 31, 2020.

IV. CONCLUSION
For the foregoing reasons, the court GRANTS IN PART AND DENIES IN
PART GEICO’s motion for summary judgment [Doc. No. 49]. The court DENIES
GEICO’s motion for summary judgment on Ms. Davis’s FMLA-interference claim
based on Mr. Jordan’s comments about the importance of “being here” and
whether those comments would have discouraged a reasonable person from
taking FMLA leave. The court GRANTS GEICO’s motion in all other respects.
SO ORDERED.

ENTERED: August 9, 2021

/s/ Robert L. Miller, Jr.
Judge, United States District Court

Distribution: All electronically registered counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10168132. Public record. Not legal advice.