Abts v. Mercy Health

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANDREW ABTS, )

)

)

Plaintiff, )

)

vs. ) Case No. 4:19-CV-02768 JCH

)

MERCY HEALTH, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

In this action, Plaintiff Andrew Abts alleges that Defendants Mercy Hospital Jefferson and

Mercy Health (“Defendants” or collectively, “Mercy”) violated his rights under the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Defendants now move for summary

judgment (Doc. 46) and, for the reasons explained below, their motion will be granted.

I. Facts1 and Procedural Background

In 2004, Plaintiff began working as a Certified Nursing Assistant for Jefferson Memorial

Hospital, which later became part of the Mercy Health hospital system, operating under the name

Mercy Hospital Jefferson. Plaintiff continued working at the hospital under Mercy’s ownership,

and, in February 2016, was promoted to manager, or leader2, of the hospital’s cardiac progressive

care unit (“PCU”). In that role, he supervised approximately 50 nurses and other medical staff.

After Plaintiff’s promotion to manager, his supervisor was Krista McKenzie, the Director of

Nursing Services (“McKenzie”).

1 The facts were taken from the parties respective Statements of Material Facts and the exhibits attached thereto.

See Docs. 48, 54, and 59.

2 Managers in the Mercy system are commonly referred to as “leaders.”

During 2016, certain concerns about Plaintiff’s work performance in his new role as

manager began to emerge. For example, McKenzie’s supervisor, Chief Nursing Officer Stacy

Blankenship (“Blankenship”) believed that Plaintiff was arranging his department’s schedule in a

way that caused shift staffing challenges. On November 5, 2016, Blankenship sent an email to

McKenzie outlining some of her concerns about Plaintiff’s job performance. She wrote that

another employee had informed her3 that Plaintiff frequently left his shift without providing patient

reports, and that on occasion he left work even though he knew the shift was short-staffed.

Blankenship wrote that she found this behavior, if true, “super-concerning,” as it appeared that

Plaintiff’s team “felt that he had left them in crisis.” Blankenship stated that she was aware that

McKenzie was “having to work very diligently with Drew as he is not being as successful as we

would like” in his new managerial position, and she wanted her to have this additional information

about his performance.

In December 2016, McKenzie placed Plaintiff on a performance improvement plan

(“PIP”). The PIP noted Plaintiff’s inconsistent performance, and identified certain patterns of

conduct, including (1) Plaintiff needing repeated reminders to complete his job duties, including

chart audits, submitting Foley catheter days, narcotic audits, and SAFE events; (2) Plaintiff not

meeting expectations around coworker scheduling and the need to ensure that shift schedules were

consistent and fair; (3) Plaintiff failing to complete approximately forty-three educational training

modules despite repeated reminders to do so; and (4) concerns about Plaintiff’s honesty regarding

whether he was carrying out his day-to-day duties and managerial responsibilities. The PIP

identified four goals for Plaintiff, including (1) the timely completion of all weekly and monthly

expectations, (2) assuring that coworkers’ schedules were consistent and met PCU expectations,

3 Blankenship wrote that the employee said, with respect to Plaintiff not giving necessary patient reports, “[Y]eah,

that’s just Drew, that’s how he has always been. He never gives report and if he does it’s worthless.”

(3) completing all “My Education” modules before their due date, and (4) working on “the building

of right relationships with [McKenzie] and other members of the leadership team.” McKenzie felt

that Plaintiff’s performance improved while on the plan, and he successfully completed the PIP by

the spring of 2017. Additionally, in July of 2017, Plaintiff received his annual review for the

period from July 2016 through June 2017. The review was generally positive, and McKenzie

noted that Plaintiff had improved in all of the areas included in the 2016 PIP.

Mercy has an annual performance review process called “Accounting of Stewardship” or

“AoS.” Pursuant to this process, each unit leader completes a written review of the performance

of each of his subordinates, and then meets with each subordinate individually to discuss the

review, after which the leader and subordinate sign the review. Mercy provided trainings regarding

the AoS process, and Plaintiff was aware of and encouraged to participate in such trainings. In

2016, after being promoted to a managerial position in the PCU, Plaintiff completed his

subordinates’ performance reviews, including meeting with each of them, in a timely manner.

During May 2017, McKenzie held meetings with Plaintiff and his fellow leaders regarding

the AoS process, and shared information about trainings available for the process and applicable

deadlines for that year’s evaluations. McKenzie had another meeting with Plaintiff on June 5,

2017, to discuss the reviews, and on June 6, 2017, she emailed Plaintiff a timeline for the 2017

AoS process, which included the following information: (1) on June 1, 2017, the AoS application

opened for leaders to begin co-worker4 evaluations; (2) evaluation meetings were to be conducted

during June and July, and should be completed by no later than September 15, 2017; and (3) by

October 1, 2017, all evaluations must be complete, meaning that leaders must have met with their

co-workers and the evaluation must have been signed by the leader and his subordinate. Also on

4 At Mercy, each manager’s subordinates are commonly referred to as “co-workers.”

June 6, 2017, Alexis Travers (“Travers”), Mercy’s Director of Human Resources, emailed to

Plaintiff and other leaders a message setting forth the same deadlines for the AoS process. Leaders

at Mercy were also subject to a requirement that they complete a self-evaluation in the AoS system.

On June 21, 2017, McKenzie emailed Plaintiff, asking him to complete his self-evaluation, and

noting that if he needed any assistance with the process he should let her know.

On June 26, 2017, Travers again emailed Plaintiff and other leaders about the 2017 AoS

process, reiterating the timeline and deadlines, and informing them that the HR office had multiple

computers available if anyone wished to complete their evaluation in the HR office. On June 29,

2017, McKenzie emailed Plaintiff to remind him that he only had four weeks remaining to get his

evaluations done, and, because it was a busy time of year, offering to allow him to work from

home one day per week in order to complete the evaluations in a timely manner. On July 5, 2017,

Mercy Compensation Support emailed Plaintiff a reminder that he had only four weeks left to

complete the AoS evaluations, and provided with him with a list of his subordinates whose

evaluations had not yet been started. On Friday, July 14, 2017, McKenzie emailed Plaintiff,

inquiring as to what his plan was to complete his evaluations on time, and asking that he provide

her with such a plan by the end of the following Monday.

During his employment with the Mercy Health system, Plaintiff took FMLA leave in 2014,

2016, and 2017, each time after the birth of one of his children. His first such leave was between

September 30, 2014 to November 3, 2014. He again took leave from May 25, 2016, through June

29, 2016. On August 8, 2016, after returning from his second FMLA leave, Plaintiff received a

positive annual review from McKenzie. Additionally, his 2016 FMLA leave was not mentioned

during the December 2016 meeting to discuss his performance improvement plan, and Plaintiff

testified at his deposition that he was not aware of any facts that could suggest that McKenzie

issued the PIP because Plaintiff has used FMLA leave earlier that year.

In March 2017, Plaintiff told McKenzie that his wife was pregnant again and that he would

need FMLA leave later that year for the birth of his child. The PCU was scheduled to move its

patients and staff to another building during the time that Plaintiff would be away on FMLA leave

in 2017. Sometime during late summer of 2017, Plaintiff and McKenzie discussed his upcoming

FMLA leave for the birth of his child, and McKenzie expressed concern about him being away for

so long during such an eventful time for his unit.

On September 27, 2017, Plaintiff submitted a Leave of Absence Request Form to Mercy’s

Leave Administration Department asking for FMLA leave to bond with his son from October 2

through November 27, 2017. This was his first time communicating with Leave Administration

about his desire to take FMLA leave in 2017. If an employee needs FMLA leave for a reason that

is foreseeable, such as parental leave upon the birth of a child, Mercy requires that employee to

contact Leave Administration at least 30 days’ prior to the first expected day of leave. Plaintiff

admits that he submitted his request to Leave Administration only six days before he wanted his

FMLA leave to begin. Plaintiff’s child was born on September 29, 2017. Plaintiff went on leave

and claims that he never heard from Mercy again regarding his leave request. On October 26,

2017, Mercy sent a notice to Plaintiff that his leave would not be designated as FMLA leave

because he did not submit required documents within the established timeframe. However, for

reasons that are unclear, Plaintiff did not receive that notice. Plaintiff additionally asserts that he

provided sufficient notice of his need for leave, as he had mentioned to his supervisor in March

that he would need FMLA paternity leave later that year.

On September 28, 2017, after Plaintiff went on leave, McKenzie discovered that Plaintiff

had not completed 33 of his subordinates’ performance reviews for the AoS process. McKenzie

testified that she was “panicked” when she received notice that Plaintiff had left undone so many

performance reviews. McKenzie alerted other employees at Mercy to the situation, who were

similarly dismayed. For example, Alexis Travers, the Director of Human Resources, testified that

she was “shocked” to learn of Plaintiff’s failure to complete so many evaluations, as she had never

encountered such a situation before. On September 29, 2017, McKenzie called Plaintiff to ask

him about the unfinished performance reviews, and he informed her that he had reached out to his

subordinates, but he felt that they did not care and failed to follow up, and it was not his

responsibility to “chase them down.” On October 9, 2017, Mercy’s compensation department

contacted Travers asking her to inform Plaintiff that his performance reviews must be completed.

Travers wrote them back, informing them that Plaintiff was out on FMLA leave, so there was

nothing that could be done about the situation. She further indicated that they were “in a bad spot

with this leader,” and that he “will be receiving corrective action.”

Other problems with Plaintiff’s performance came to light shortly after he left for FMLA

leave in 2017. For example, on September 26, 2017, the day before he went on leave, Plaintiff

added inapplicable skillsets to the scheduling profiles of eleven of his subordinates, which caused

the system to increase their rates of pay for each shift worked. A staffing coordinator, Pam Mullin,

informed McKenzie of the changes made by Plaintiff, and told McKenzie that she believed

Plaintiff inappropriately made the changes in order to benefit Plaintiff’s favored subordinates.

Mullin undid all the changes that Plaintiff had made to the scheduling system. Plaintiff testified

that he thought his subordinates were qualified for the changes that he made. However, it is

undisputed that McKenzie was informed that the changes were inappropriate, and the changes

were in fact incorrect and had to be reversed.

Additionally, during October 2017, while Plaintiff was out on leave, McKenzie discovered

that he had failed to give corrective action to several subordinates for attendance issues.

Furthermore, on October 2, 2017, during the first week after Plaintiff left on FMLA leave, Michelle

Meyer, Mercy’s Vice President of Operations emailed Chief Nursing Officer Blankenship about

Plaintiff’s practice of leaving certain employees off the weekend schedule in the PCU, which in

turn caused the unit to be short staffed on multiple occasions. Blankenship testified that she

believed Plaintiff’s performance failures were “frankly negligence”’ and that it was “pretty clear”

that Plaintiff could not “function at the level of a nurse manager effectively.”

After discovering all of these issues, McKenzie and Blankenship conferred with Human

Resources and made the decision to terminate Plaintiff immediately. On October 31, 2017, Travers

emailed McKenzie, Blankenship, and Eric Ammons, Mercy’s Chief Executive Officer about their

decision, writing, “[P]er our conversation, we will terminate Drew Abts on Thursday 11/2 for the

following concerns: manipulation of co-worker schedules in an effort to give them increased

incentives, failure to properly document co-worker corrective actions, and also not completing

AoSS for his department.”

On November 2, 2017, Abts’s employment was terminated. Mercy issued a termination

letter stating four concerns: (1) not completing performance reviews for 33 out of 45 of his

subordinates; (2) not properly documenting co-worker corrective actions; (3) manipulating co-

worker schedules in order to give them pay increase incentive; and (4) not following the leave

process and being on unapproved leave. All of the performance issues referenced in his

termination letter were discovered only after Plaintiff started his FMLA leave. At his deposition,

Plaintiff testified that he believed that he was terminated because he took too much FMLA leave,

but he also testified that no one at Mercy ever said anything to him that suggested that his

employment was terminated because he took leave.

On October 11, 2019, Plaintiff filed the instant action, alleging that Defendants violated

his right to medical leave under the FMLA by interfering with that right, as well as by

discriminating against him5 for exercising rights under the statute. Defendants filed a motion for

summary judgment on all Plaintiff’s claims. For the following reasons, the Court will grant

Defendants’ motion for summary judgment.

II. LEGAL STANDARD

Summary judgment shall be granted “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); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The movant “bears the initial

responsibility of informing the district court of the basis for its motion” and must identify “those

portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, the nonmovant

must respond by submitting evidentiary materials that set out specific facts showing that there is a

1 Plaintiff’s claim in Count I is labeled “FMLA Interference.” However, the Eighth Circuit

has instructed that FMLA claims “formerly described as interference claims henceforth shall be

called ‘entitlement’ claims.” Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780 (8th Cir.

2013). The Court will refer to Plaintiff’s claim in Count I, then, as his FMLA entitlement claim.

Additionally, Plaintiff labels him claim in Count II as one for “FMLA Retaliation.” However,

the substance of this claim appears to lay out the elements of an FMLA discrimination claim,

rather than retaliation, and accordingly, the Court will refer to the claim as one for FMLA

discrimination. To the extent that Plaintiff may actually seek to bring an FMLA retaliation

claim, Defendants would be entitled to summary judgment on such claim, as Plaintiff makes no

allegations that he opposed any practice made unlawful by the FMLA, as would be required to

prevail on such a claim. Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th

Cir. 2012).

genuine issue for trial. Id. at 324. The nonmoving party may not rest on mere allegations or denials,

but must show through the presentation of admissible evidence that specific facts exist creating a

genuine issue of material fact for trial. Fed. R. Civ. P. 56(c)(1)(A); Wood v. SatCom Mktg., LLC,

705 F.3d 823, 828 (8th Cir. 2013). “On a motion for summary judgment, ‘facts must be viewed

in the light most favorable to the nonmoving party only if there is a genuine dispute as to those

facts.’” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380

(2007)) (internal quotations omitted).

In determining the appropriateness of summary judgment, “the relevant inquiry is whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Bingaman v. Kansas City Power & Light

Co., 1 F.3d 976, 980 (10th Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). “There is no ‘discrimination case exception’ to the application of summary judgment,

which is a useful pretrial tool to determine whether any case, including one alleging discrimination,

merits a trial.” Torgerson v. City of Rochester, 643 F.3d 1031, 1043

III. DISCUSSION

Plaintiff alleges Defendants6 violated his rights under the FMLA by depriving him of leave

to which he was entitled and by taking adverse action against him for exercising his rights under

6 Defendants argue that Plaintiff was not actually employed by Mercy Health or Mercy Hospital

Jefferson. In fact, Defendants argue that they do not employ anyone at all, and therefore, cannot be

considered employers under the FMLA, and, accordingly, are entitled to summary judgment on this basis.

Defendants assert that Plaintiff was actually employed by MHM Support Services, of which Defendant

Mercy Health is the sole member. Mercy Health is also the sole member of Mercy Health East

Communities, which is in turn the sole member of Defendant Mercy Hospital Jefferson. Plaintiff argues

that under the FMLA, employment status is more properly determined by the economic realities between

the parties rather than the precise corporate structure of the relevant entities. Here, there is a rather

muddled picture concerning which Mercy affiliated entity may actually have been Plaintiff’s employer for

FMLA purposes: MHM Support’s name appeared on Plaintiff’s paystubs, but Mercy Health appears to

have handled Plaintiff’s leave request, and Mercy’s human resources and legal department were closely

involved in the termination decision. However, the Court need not wade further into this issue, as,

that statute. The FMLA entitles any “eligible employee” to a total of twelve work weeks of leave

during any twelve-month period under certain conditions. 29 U.S.C. § 2612(a)(1); 29 C.F.R. §

825.112(a). The FMLA also protects workers who exercise their rights under the statute. It is

unlawful “for any employer to interfere with, restrain, or deny the exercise of or the attempt to

exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). The Eighth Circuit

recognizes three distinct claims brought under the FMLA: “entitlement” claims; “retaliation”

claims; and “discrimination” claims. Brown v. City of Jacksonville, 711 F.3d 883, 890-91 (8th

Cir. 2013); Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012).

Plaintiff brings an entitlement claim, asserting that Mercy wrongfully denied his FMLA leave

request and then terminated him while on leave. He also asserts FMLA discrimination, alleging

that Mercy terminated him because of his decision to take FMLA leave in 2017.

An employee may bring an entitlement claim when his employer “refuses to authorize

leave under the FMLA or takes other action to avoid responsibilities under the Act.” Pulczinski,

691 F.3d at 1005. “An employee proceeding on this theory need not show that an employer acted

with discriminatory intent.” Id. However, that does not mean that an employee may not be

terminated while on leave; the FMLA is not a strict liability statute. See Chappell v. Bilco Co.,

675 F.3d 1110, 1115 (8th Cir. 2012) (“Although an employee ‘can prove interference with an

FMLA right regardless of the employer’s intent,’ the FMLA ‘is not a strict-liability statute.”)

(quoting Estrada v. Cypress Semiconductor, Inc., 616 f.3d 866, 871 (8th Cir. 2010)). Therefore,

if an employee had lawful reason to discharge an employee, the FMLA will not shield that

employee from such discharge while he is on leave. “As long as an employer can show a lawful

assuming arguendo that Defendants were Plaintiff’s employers for purposes of the FMLA, they are

nevertheless entitled to summary judgment on the merits of Plaintiff’s claims, as further discussed in this

decision.

reason,” i.e., a reason not related to unlawful interference with or discrimination due to taking

FMLA leave, “the employer will be justified to interfere with an employee’s FMLA leave rights.”

Throneberry v. McGee Desha Cnty. Hosp., 403 F.3d 972, 979 (8th Cir. 2005) (“[E]very discharge

of an employee while [ ]he is taking FMLA leave interferes with an employee’s FMLA rights.

However, the mere fact of discharge during FMLA leave by no means demand an employer be

held strictly liable for violating the FMLA’s prohibition of interfering with an employee’s FMLA

rights.”).

An employee may sue for discrimination when his employer “takes adverse action against

him because he exercise[d] rights to which he is entitled under the FMLA.” Id. “In this scenario,

the employer does not prevent the employee from receiving FMLA benefits. Rather, it is alleged

that after the employee exercised his statutory rights, the employer discriminated against him in

the terms and conditions of employment. An employee making this type of claim must prove that

the employer was motivated by the employee’s exercise of rights under the FMLA.” Id. The

Eighth Circuit considers FMLA discrimination claims under the familiar McDonnell Douglas

burden-shifting framework applicable to Title VII cases. Id. at 10007. Under that framework,

because Plaintiff does not identify direct evidence of discrimination in this case, he may preclude

summary judgment only if he can create an inference of discrimination by establishing a prima

facie case. If he does so, the burden then shifts to Mercy to articulate a legitimate, non-

discriminatory reason for his termination, and if Mercy does so, the burden reverts back to Plaintiff

to show that the proferred reason for his termination is merely a pretext for unlawful

discrimination. See Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011).

A. FMLA Entitlement Claim

An entitlement claim arises when an employer refuses to authorize leave under the FMLA,

or takes other action to avoid responsibility under the Act. Pulczinski, 691 F.3d at 1005; see also

Estrada, 616 F.3d at 871 (An FMLA entitlement claim occurs “when an employer’s action deters

or attached negative consequences to an employee’s exercise of FMLA rights.”). “An employee

can prevail under an interference theory if he was denied substantive rights under the FMLA for a

reason connected with his FMLA leave.” Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th

Cir. 2006). An entitlement claim under the FMLA cannot succeed unless the plaintiff can show

that she “gave h[er] employer adequate and timely notice.” Chappell v. Bilco Co., 675 F.3d 1110,

1116 (8th Cir. 2012). Failing to do so results in a loss of an FMLA entitlement. See Garrison v.

Dolgencorp, LLC, 939 F.3d 937, 944 (8th Cir. 2019) (employee “lost any right that she had to

FMLA leave” because she did not contact employer’s leave administrator about her request); see

also Bosley v. Cargill Meat Sols. Corp., 705 F.3d 777, 780 (8th Cir. 2013) (noting the FMLA’s

“rigorous notice standard”).

Defendants argue that they are entitled to summary judgment on the entitlement claim

because Plaintiff was not entitled to leave under the Act, as he submitted to Mercy’s Leave

Administration Department his request for leave only six days before he wanted his leave to begin,

rather than the required thirty days’ notice. Plaintiff argues that he provided adequate notice when

he informed his direct supervisor, McKenzie, in March of 2017, that he would require FMLA leave

later that year.7 Plaintiff also notes that when he took FMLA paternity leave in 2014 and 2016 he

7 Plaintiff also makes much of the fact that Defendants requested that he submit a medical Healthcare Certification

form, rather than a birth certificate, to support his claim for FMLA paternity leave. Defendants admit that this

request was erroneous, but it is immaterial in any event, as no attempt was made to enforce the request and it had no

connection to Plaintiff’s termination.

similarly provided informal notice to his supervisor, followed by an official leave request

submitted to Leave Administration less than thirty days prior to the start of his leave.

Even if the Court assumes, without deciding, that Plaintiff provided adequate notice of his

need for FMLA leave, and was thus entitled to such leave, Defendants are nonetheless entitled to

summary judgment on Plaintiff’s claim. This is so because even if Plaintiff could make a showing

of interference, Defendants have shown that he was discharged for reasons unrelated to his exercise

of FMLA rights. See Ballato v. Comcast, 676 F.3d 768, 772 (8th Cir. 2012) (“An employee who

requests FMLA leave has no greater protection against termination for reasons unrelated to the

FMLA than [ ]he did before taking the leave.”) (quoting Estrada v. Cypress Semiconductor (Minn.)

Inc., 616 F.3d 866, 871 (8th Cir. 2010). “If the employer can prove that it would have terminated

the employee had the employee not exercised FMLA rights, the employer will not be liable.” Id.

Plaintiff was discharged due to his failure to meet multiple managerial expectations. He

failed to complete dozens of written performance reviews for his subordinates, despite repeated

reminders of the need for him to do so. He failed to discipline his subordinates for attendance

issues, and he manipulated the scheduling system in a way that created unauthorized pay increases

for some of his subordinates. Plaintiff does not dispute that these performance problems were

both real and consequential—merely because he believed that he should not have been terminated

for these reasons is immaterial. McKenzie and Blankenship testified that they could no longer

tolerate Plaintiff’s managerial shortcomings, and were so unhappy about the performance issues

that came to light after he went on leave that they decided to discharge him immediately. The

FMLA does not preclude employers from taking disciplinary action against an employee for

performance issues unrelated to his request for leave, and Defendants are entitled to summary

judgment on Plaintiff’s FMLA entitlement claim.

B. FMLA Discrimination Claim

A discrimination claim arises under § 2615(a)(1) “when an employer takes adverse action

against an employee because the employee exercises rights to which he is entitled under the

FMLA.” Pulczinski, 691 F.3d at 1006. Plaintiff maintains that he was terminated because he

exercised his right to take FMLA leave. Absent direct evidence of discrimination, the Court will

evaluate Plaintiff’s FMLA discrimination claim under the McDonnell Douglas burden-shifting

analysis. Under this framework, Plaintiff must first establish a prima facie case of illegal

discrimination by showing that he engaged in activity protected under the FMLA, suffered a

materially adverse employment action, and that a causal connection existed between his actions

and the adverse employment action. See Pulczinski, 691 F.3d at 1007. Then, the burden “shifts

to the employer to articulate a legitimate, non-retaliatory reason for its action.” Id. If it does so,

then “the employee must then identify evidence sufficient to create a genuine issue of material fact

whether the employer’s proffered explanation is merely a pretext for an unlawful decision.” Id.

Plaintiff argues that the mere fact that he was fired while he was on FMLA leave establishes

a causal connection between his leave request and his termination. Plaintiff asserts that the

temporal proximity between him taking leave and his dismissal establishes discrimination.

Defendants argue that this is not sufficient evidence to create an issue of fact regarding whether

there is a causal link between his use of FMLA leave and his termination, as required to establish

a prima facie case of discrimination. Indeed, Defendants argue that the timeframe around his

termination would seem to support the opposite conclusion. If Defendants were intent on

discriminating or retaliating against Plaintiff for utilizing FMLA leave, he could have been

terminated as early as March of 2017, when he initially informed McKenzie that he needed leave,

or even earlier, after any of the prior times that he took FMLA leave. See Sisk v. Picture People,

Inc., 669 F.3d 896, 900 (8th Cir. 2012) (In calculating temporal proximity in FMLA cases, the

Eighth Circuit “looks to the date an employer knew of an employee’s use (or planned use) of

FMLA leave, not the date the leave ended.”). Here, Plaintiff was terminated after eight months

had passed since his initial request for leave, an interval during which he received a positive

performance review from McKenzie. See EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 973

(8th Cir. 2014) (interval of two months is too long to support a causal link between FMLA leave

and termination). Simply because the termination occurred while he was on leave does not

establish causation. See Throneberry, 403 F.3d at 979 (The “mere fact of discharge during FMLA

leave by no means demands an employer be held strictly liable for violating the FMLA’s

prohibition of interfering with an employee’s FMLA rights.”). Furthermore, the timing of

Plaintiff’s termination supports Defendants’ assertion that he was discharged for performance

issues, as McKenzie and Blankenship decided to fire Plaintiff immediately after discovering the

alleged deficiencies.

However, even if Plaintiff could establish the necessary causal link for a prima facie case,

he has not shown that Defendants’ legitimate, non-discriminatory justification for his adverse

employment actions was pretextual. A plaintiff may establish an issue of material fact regarding

pretext by “show[ing] that the employers’ explanation is ‘unworthy of credence . . . because it has

no basis in fact,” or ‘by persuading the court that a prohibited reason more likely motivated the

employer.’” Brown v. Diversified Distribution Sys. LLC, 801 F.3d 901, 909 (8th Cir. 2015)

(quoting Torgerson, 643 F.3d at 1047). “Ultimately, the plaintiff must ‘show[ ] that a prohibited

reason, rather than the employer’s stated reason, actually motivated the employer’s action.”

Nelson v. USAble Mut. Ins. Co., 918 F.3d 990, 993 (8th Cir. 2019) (quoting Wallace v. DTG

Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006). Additionally, the “critical inquiry . . . is

not whether the employee actually engaged in the conduct for which he was terminated, but

whether the employer in good faith believed that the employee was guilty of the conduct justifying

discharge.” Liles v. C.S. McCrossan, Inc., 851 F. 3d 810, 821 (8th Cir. 2017)

Here, Defendants’ proferred justifications plainly have a legitimate factual basis—nothing

in the record indicates that McKenzie and Blankenship lacked a good faith belief that Plaintiff was

guilty of the conduct justifying discharge. McKenzie and Blankenship testified regarding the

multiple ways in which they found Plaintiff’s performance deficient, and Plaintiff admits that he

did not complete his subordinates’ performance reviews, document appropriate corrective actions

regarding attendance, and made the scheduling system alterations that increased some

subordinates’ compensation. Neither the fact that he may feel his performance was satisfactory,

nor his assertion that he made the scheduling changes with the belief that they were appropriate,

creates doubt concerning whether Defendants genuinely found his performance lacking. And if

McKenzie and Blankenship were mistaken in their assessments, that does not change the legal

analysis. “Employers are free to make employment decisions based upon mistaken evaluations,

personal conflicts between employees, or even unsound business practices.” Edmund v.

MidAmerican Energy Co., 299 F.3d 679, 685-86 (8th Cir. 2002).

Conversely, Plaintiff has offered nothing to indicate that his termination was the result of

discriminatory intent, rather than the result of Defendants’ determination to fire him for managerial

shortcomings. He does not even argue that the reasons offered by Defendants were pretextual.

Rather, he seems to argue that if Defendants had found his leave request timely and allowed him

to return to work, he would not have been dismissed. Therefore, Plaintiff argues, the actual reason

for his termination was solely his FMLA leave. As to the three performance related reasons for

dismissal outlined in his termination letter, Plaintiff argues that while this alleged misconduct may

have caused him to be “punished or demoted,” it was “not guaranteed that Defendants would have

terminated [him] because of the alleged performance issues.” Doc. 53 at 25. It is not clear why

Plaintiff believes that he would not have been dismissed if only he had been allowed to return from

leave. In any event, the pertinent question is not whether Defendants made a good, fair, or correct

decision, but rather, whether Defendants did not actually believe that his performance was

deficient. Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 903 (8th Cir. 2015).

While Plaintiff may believe that the decision to terminate him was harsh or misguided, the

Court is concerned only with whether Defendants discharged him because he exercised his rights

under the FMLA. See Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 927 (8th Cir. 2014) (Federal

courts “do not sit as a super-personnel department that reexamines an entity’s business decisions.”)

(quoting Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 812 (8th Cir. 2005); Edmund v.

MidAmerican Energy Co., 299 F.3d 679, 685-86 (8th Cir. 2002) (A plaintiff “must do more than

merely raise doubts about the wisdom and fairness of the opinions of him held by his superiors . .

. It must create a real issue as to the genuineness of those perceptions.”). Plaintiff of course feels

that he should not have been terminated for his performance issues. However, he fails to cast

doubt on the legitimacy of these performance deficiencies, or call into question McKenzie and

Blankenship’s genuine belief that his performance was unacceptable. Indeed, Plaintiff seems to

admit the genuineness and seriousness of these issues by acknowledging that he could have been

punished or demoted had he not been fired. Plaintiff’s belief that Defendants should have dealt

with him less harshly is irrelevant, as it does not undermine the fact that there is no evidence that

raises a reasonable inference that Defendants terminated Plaintiff because he exercised his rights

under the FMLA, rather than because of the performance issues.

Defendants have proffered legitimate, nondiscriminatory reasons for Plaintiff’s

termination, and Plaintiff has not shown that the reasons proffered were but a pretext for

discrimination. As such, Defendants are entitled to summary judgment on Plaintiff’s FMLA

discrimination claim as well.

IV. CONCLUSION

For the foregoing reasons, Defendant is entitled to summary judgment on both Counts of

Plaintiff’s Complaint.

Accordingly,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (Doc. 46)

is GRANTED.

IT IS FURTHER ORDERED that all other outstanding motions in this matter are

DENIED as moot.

The Court will issue a separate judgment consistent with this Memorandum and Order.

Dated this 2nd day of June, 2021.

/s/Jean C. Hamilton

JEAN C. HAMILTON

UNITED STATES DISTRICT JUDGE