Caskey, Tracy L. v. Colgate-Palmolive

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2919

TRACY L. CASKEY,

Plaintiff-Appellant,

v.

COLGATE-PALMOLIVE COMPANY and

HILL’S PET NUTRITION, INCORPORATED,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 04 C 1239—David F. Hamilton, Chief Judge.

____________

ARGUED OCTOBER 29, 2007—DECIDED JULY 24, 2008

____________

Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. After being disciplined and ulti-

mately terminated, Tracy Caskey sued her former em-

ployer and its parent company. Caskey alleged that the

defendants (1) interfered with her right to medical leave,

in violation of the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. § 2601 et seq.; (2) discriminated against

her because of her sex, in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e

et seq.; and (3) retaliated against her for exercising her

2 No. 06-2919

rights under the FMLA, Title VII, and Indiana law. The

district court granted summary judgment for the defen-

dants, finding that Caskey’s discipline was lawful and

that her termination resulted from three unexcused ab-

sences from work. Caskey now appeals, and for the rea-

sons stated below, we affirm.

I. BACKGROUND

Hill’s Pet Nutrition, Inc. (“Hill’s”) produces pet food, and

Colgate-Palmolive Co. (“Colgate”) is the corporate parent

of Hill’s. Caskey began working as a technician at the

Richmond, Indiana plant of Hill’s in 1995. One of her

primary duties involved operating an extruder, a piece of

heavy machinery that, at the Hill’s plant, pushed unpro-

cessed dog food through a grinder and then sliced the

food into smaller pieces known as “kibbles.” Caskey was

terminated after a series of incidents in 2003, including

two extruder-related accidents and a series of unexcused

absences.

At the plant employee work performance issues were

addressed through the Individual Improvement Process

(“IIP”) which included a multi-tiered discipline system:

(1) formal coaching; (2) performance agreement;

(3) decision-making leave (“DML”); and (4) “deselection”

or termination. Hill’s employees who received an absentee-

ism rate in excess of 2.12% in one calendar year were

subject to discipline. In addition, Hill’s provides paid

leave for illness for its employees under the FMLA. Be-

cause of this and other paid time-off programs, employees

do not have “sick days.” If an employee is absent, and the

absence does not qualify as Family Medical Leave (“FML”)

or another form of protected leave, the absence is re-

corded as an unexcused absence.

No. 06-2919 3

Caskey requested and received FML several times

during her employment with Hill’s, including from

June 27 to September 13, 2000, from April 5 to 15, 2002,

from December 13 to to 15, 2002, and from April 24 to

May 12, 2003. According to Hill’s, Caskey also accrued a

series of unexcused absences that did not qualify as FML.

As a result of the unqualified absences, Hill’s placed

Caskey in the formal coaching stage of the IIP in November

2001. On February 27, 2003, Caskey progressed into the

performance agreement stage for having an absenteeism

rate above 3% in the calendar year.

Caskey advanced further in the IIP the following month.

On February 21, 2003, Caskey slipped and fell while

operating the extruder. She injured her wrist in the acci-

dent, and the injury was treated as a worker’s compensa-

tion injury. Hill’s claimed that Caskey had behaved

unsafely; an investigatory team reported that the incident

had occurred because Caskey was standing on the “at risk”

side of the extruder. Caskey claimed that the standard

operating procedure for the extruder at the time of her

injury did not include an “at risk” side of the extruder,

and that she fell because the floor of the plant was slip-

pery and littered with product. Caskey did not return to

work for her next two scheduled shifts on February 22

and 23. A few weeks later, during Caskey’s shift, over

50,000 pounds of reject product were produced on the

plant line producing kibble—apparently bits of kibble

were inappropriately sized—and 20,000 pounds of the

defective kibble were bagged in the packaging area

before being discovered. Caskey’s responsibilities in-

cluded quality control checks on the plant line that pro-

duced the defective product. Based on these two incidents,

on March 12, 2003, Hill’s placed Caskey on the DML stage

4 No. 06-2919

of the disciplinary process, the final stage before termina-

tion.

While in the DML stage, a Hill’s employee must sign a

letter of recommitment and have “no absences and use no

emergency vacation time for the duration of the agree-

ment.” In April 2003, Caskey violated the terms of her

letter of recommitment by requesting vacation time on

less than the required forty-eight hours’ notice. After an

internal discussion, Hill’s decided not to terminate Caskey

at that point. Later in the month, Caskey saw her family

doctor for depression-related symptoms, including

“distress, shaking, and heart racing,” and the physician

recommended that Caskey take time off from work. She

requested and received FML from April 24 to May 12,

2003. The treating physician then released Caskey to

work as of May 12, and did not authorize additional

leave or impose further work restrictions beyond that date.

After returning from FML on May 12, Caskey took a

birthday holiday on May 16, and took vacation on May 17

and 18. On May 20, she saw an employment assistance

counselor regarding her depression. The counselor, like

her treating physician, did not impose any work restric-

tions on Caskey. The following day, Caskey called a

teammate at the Hill’s plant and said she was “sick” and

was going to miss work for the following two days. She

then failed to report to work on May 21, 22, and 27. Caskey

did not receive any medical treatment for these absences,

and her next visit to a physician occurred in August 2003

for an unrelated condition. On May 29, Hill’s sent Caskey

a letter stating that she had “self-terminated” by not

reporting to work on those three days.

Caskey filed a charge with the EEOC on July 10, 2003 and

filed her complaint against Hill’s and Colgate on July 28,

No. 06-2919 5

2004. On June 9, 2006, the district court granted sum-

mary judgment to both Hill’s and Colgate on all of

Caskey’s claims. This timely appeal followed.

II. DISCUSSION

We review a district court’s grant of summary judg-

ment de novo. Darst v. Interstate Brands Corp., 512 F.3d 903,

907 (7th Cir. 2008). Summary judgment is appropriate

when there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c). We view the record in the

light most favorable to the non-moving party and draw

all reasonable inferences in that party’s favor. Darst,

512 F.3d at 907.

Before addressing Caskey’s specific claims, we briefly

glance at the district court’s finding that Colgate did not

qualify as an “employer” under the FMLA or Title VII and

therefore was entitled to summary judgment in toto.

Colgate was Hill’s corporate parent, and Caskey presents

no evidence to suggest that Colgate supervised Caskey’s

work or was the decision-maker regarding Caskey’s

discipline and termination. We have previously held in

almost identical circumstances that the proper employer-

defendant would be Hill’s, and not Colgate. See Isaacs

v. Hill’s Pet Nutrition, Inc. and Colgate-Palmolive Co., 485

F.3d 383, 385 (7th Cir. 2007) (citing United States v. Bestfoods,

524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed. 43 (1998)) (“Colgate

was not [the plaintiff]’s employer, and she offers no rea-

son why an investor should be liable for Hill’s acts. . . .

We need not mention Colgate again.”) (internal citation

omitted). Caskey’s most viable argument on appeal

regarding Colgate’s involvement—that Colgate promul-

6 No. 06-2919

gated the policies that directly led to Caskey’s termina-

tion—is foreclosed by Bright v. Hill’s Pet Nutrition, Inc. and

Colgate-Palmolive Co., 510 F.3d 766, 771 (7th Cir. 2007). As

in those cases, we need not mention Colgate again.

A. FMLA Interference

We begin with Caskey’s FMLA interference claim. The

FMLA entitles eligible employees up to twelve weeks of

unpaid leave for, among other things, a “serious health

condition” that makes an employee unable to perform the

functions of his or her position. 29 U.S.C. § 2612(a)(1)(D);

Darst, 512 F.3d at 908. The FMLA makes it unlawful for

“any employer to interfere with, restrain, or deny the

exercise of or the attempt to exercise, any right provided

by [the Act].” 29 U.S.C. § 2615(a)(1); Darst, 512 F.3d at 908.

Caskey claimed that Hill’s interfered with her attempt

to claim FMLA for the absences on May 21, 22, and 27 of

2003. To prevail on her FMLA interference claim, Caskey

must establish: (1) she was eligible for the FMLA’s

protections; (2) her employer was covered by the FMLA;

(3) she was entitled to 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. Burnett v. LFW Inc., 472 F.3d 471, 477

(7th Cir. 2006). The district court found that Caskey

failed to establish the third element, because she could not

show that she had a serious health condition, and the

fourth element, because she did not provide sufficient

notice of her intent to take leave.

An employee is entitled to leave under the FMLA if

(1) she is afflicted with a “serious health condition,” and

(2) that condition renders her unable to perform the

No. 06-2919 7

functions of her job. 29 U.S.C. § 2612(a)(1)(D). A “serious

health condition” is defined as “an illness, injury, im-

pairment, or physical or mental condition that

involves—(A) inpatient care in a hospital, hospice, or

residential medical care facility; or (B) continuing treat-

ment by a health care provider.” 29 U.S.C. § 2611(11).

Caskey did not present sufficient evidence to show

that the string of absences starting on May 21 was the

result of a serious health condition. She argues that during

this time period she suffered from anxiety, depression,

and various other minor ailments, but does not adequately

apply these afflictions to the legal standard. At no point

in late May did Caskey receive inpatient treatment in any

medical facility, so the question becomes whether her

condition qualified as “continuing treatment by a health

care provider.” The FMLA regulations define “con-

tinuing treatment by a health care provider” as including,

in relevant part, (1) a period of incapacity of more than

three consecutive calendar days that also involves either

treatment two or more times by a health care provider or

a regimen of continuing treatment; or (2) any period

of incapacity due to a chronic serious health condition,

which requires periodic treatment by a health care pro-

vider. 29 C.F.R. § 825.114(a)(2)(I), (iii).

These definitions do not apply to Caskey. Though she

had previously received treatment for depression and

anxiety, she offered no evidence of incapacity relating

to the post-May 20 absences, and she did not receive

either treatment two or more times by a health care pro-

vider or a “regimen of continuing treatment.” She there-

fore was not receiving “continuing treatment by a health

care provider” under § 825.114(a)(2)(I). Caskey argues

that the fact that she qualified for FML during April 24-

8 No. 06-2919

May 12 means that her condition continued into late May,

perhaps suggesting that she suffered a “chronic serious

health condition” under § 825.114(a)(2)(iii). Nothing about

her FML during April 24-May 12 suggests that Caskey

suffered from a chronic condition that continued after

May 12 and required periodic visits to a health care

provider. Her treating physician specifically stated that

Caskey had no work restrictions after May 12. She did not

see the physician again until August and then for an

unrelated ailment. Caskey had an obligation to show a

serious health condition, and her general testimony that

her condition was serious is insufficient to raise a genu-

ine issue of material fact on this issue. Haefling v. United

Parcel Service, Inc., 169 F.3d 494, 499 (7th Cir. 1999)

(“Whether an illness or injury constitutes a ‘serious

health condition’ under the FMLA is a legal question

that an employee may not sidestep in the context of

summary judgment merely by alleging [her] condition to

be so.”) Because Caskey neither received continuing

treatment by a health care provider nor suffered a

chronic condition, her various afflictions do not amount

to a serious health condition, and therefore she had no

right to FML on May 21, 22, and 27.1

1

Because we find that Caskey did not establish the third

element of her FMLA interference claim, we need not reach the

district court’s alternate holding that she did not provide

adequate notice. We take note, however, of 29 C.F.R. §

825.300(b), which states that if the FMLA posting requirement in

§ 825.300(a) is not met, an employer may not take “an adverse

action against an employee, including denying FMLA leave, for

failing to furnish the employer with advance notice of a need to

take FMLA leave.” We have not had occasion to address the

(continued...)

No. 06-2919 9

B. Discrimination Based on Sex

Caskey next claims that Hill’s improperly discriminated

against her because of her sex by placing her, and not male

employees, on the DML stage of the disciplinary process

after the defective product incident in March 2003.2 Under

Title VII of the Civil Rights Act of 1964, it is unlawful

for employers “to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s . . .

sex. . . .” 42 U.S.C. § 2000e-2(a)(1). Caskey presented no

direct evidence of discrimination, so we analyze her

indirect proof using the familiar burden-shifting method

under McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ordinarily

under McDonnell Douglas, a plaintiff must make a

prima facie case of gender discrimination by showing:

(1) she is a member of the protected class, (2) she met her

employer’s legitimate expectations, (3) she suffered an

1

(...continued)

extent of this regulation and whether it applies to cases such as

Caskey’s. We decline to do so today, however, because the issue

was not adequately briefed by the parties, and because Caskey

could not in any event establish that she had a serious health

condition.

2

The district court addressed several other alleged incidents

of discrimination, including (1) placing Caskey on the second-

stage IIP on February 27, 2003 following the excessive absentee-

ism; (2) the extension of the end-date of her original decision-

making leave in May 2003; and (3) her May 2003 termination.

The court found all of these incidents lacking legal sufficiency.

Because Caskey did not raise these incidents on appeal, we

address only Caskey’s placement on DML in March 2003.

10 No. 06-2919

adverse employment action, and (4) her employer

treated similarly situated male employees more favorably.

Peirick v. Indiana University-Purdue Univ. Indianapolis

Athletics Dept., 510 F.3d 681, 687 (7th Cir. 2007). As the

district court correctly pointed out, in claims of discrim-

inatory discipline such as this one, “the second and fourth

prongs of McDonnell Douglas merge.” Lucas v. Chicago

Transit Auth., 367 F.3d 714, 728 (7th Cir. 2004). Accordingly,

the analysis of the employer’s expectations falls by the

wayside, and a “plaintiff must establish that [s]he

received dissimilar—and more harsh—punishment than

that received by a similarly situated employee who was

outside the protected class.” Id. A similarly situated

employee need not be “identical,” but the plaintiff must

show that the other employee “dealt with the same super-

visor, [was] subject to the same standards, and had en-

gaged in similar conduct without such differentiating or

mitigating circumstances as would distinguish [his]

conduct or the employer’s treatment of [him].” Gates v.

Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008); Crawford

v. Ind. Harbor Belt RR. Co., 461 F.3d 844, 846 (7th Cir.

2006) (holding that a similarly situated employee is one

who is “comparable to plaintiff in all material respects”).

The court below found that Caskey could not establish a

prima facie case because she could not identify any sim-

ilarly situated male employee who was treated any dif-

ferently than she was. We agree. Caskey points to several

male employees that either worked on the production

line the night of the defective product incident or had

run defective product in the past, and notes that none of

these employees received any discipline for their actions.

These employees differ from Caskey in material respects;

the majority held different positions in the plant

No. 06-2919 11

with separate responsibilities and supervisors, and the

few employees with comparable job descriptions lacked

the differentiating circumstances of having excessive

unexcused absences or having sustained a work-related

injury. Caskey failed to produce evidence of a male em-

ployee with a similar job description and past inappro-

priate conduct that received disparate treatment by

Hill’s, and Caskey cannot establish a prima facie case

lacking this evidence.

Even if she had such evidence, she would still have to

show that Hill’s legitimate and non-discriminatory reason

for its action was pretext (i.e., a “lie”). Perez v. Illinois,

488 F.3d 773, 776 (7th Cir. 2007). She failed to do so. Hill’s

stated reasons for placing Caskey on DML—that she

committed unsafe behavior and produced defective

product—were sufficiently nondiscriminatory. Nothing

in the record supports a finding that these reasons were

fabrications, Caskey’s bald statement that this was a “lie”

notwithstanding. Without such evidence, summary

judgment is appropriate.

C. Federal and State Law Retaliation

Finally, Caskey challenges the grant of summary judg-

ment of her FMLA, Title VII, and state law retaliation

claims. To address her federal claims first: the FMLA

makes it unlawful for an employer to discharge or dis-

criminate against an employee for opposing a practice

made lawful by the Act. 29 U.S.C. § 2615(a)(2); Breneisen

v. Motorola, Inc., 512 F.3d 972, 977-78 (7th Cir. 2008).

Similarly, Title VII protects employees who complain to

their employers about sexual harassment from retaliation

on that basis. 42 U.S.C. § 2000e-3; Bernier v. Morningstar,

12 No. 06-2919

Inc., 495 F.3d 369, 375 (7th Cir. 2007). We evaluate FMLA

and Title VII retaliation claims in the same manner,

assessing the direct or indirect method of proof. See Burnett,

472 F.3d at 481 n.5 (7th Cir. 2006) (citing Buie v.

Quad/Graphics, Inc., 366 F.3d 496, 504 n.3 (7th Cir. 2004)).

Under the direct method, Caskey must present evidence

of (1) a statutorily protected activity; (2) a materially

adverse action taken by the employer; and (3) a causal

connection between the two. Humphries v. CBOCS West,

Inc., 474 F.3d 387, 404 (7th Cir. 2007). Under the indirect

method, an employee must establish a prima facie case by

proving that she (1) engaged in a statutorily protected

activity; (2) met her employer’s legitimate expectations;

(3) suffered an adverse employment action; and

(4) was treated less favorably than similarly situated

employees who did not engage in statutorily protected

activity. Nichols v. Southern Illinois University- Edwardsville,

510 F.3d 772, 784-85 (7th Cir. 2007). Once the prima facie

case is established, the burden shifts to the employer to

produce a non-discriminatory reason for its action; if

the employer meets this burden, the burden shifts back

to the employee to demonstrate that the proffered reason

is pretextual. Id. at 785.

Under the direct method, Caskey satisfies the first two

elements. Caskey engaged in activity protected by the

FMLA: on various occasions from 2000-2003, Caskey

requested and received FML. Caskey also engaged in

activity protected by Title VII: Caskey supported

the discrimination complaints of her co-worker Carol

Isaacs, who filed a charge of sex discrimination with

the EEOC in July 2002. She also suffered an adverse em-

ployment action, though she has not clearly indicated

whether the relevant “action” was the second-stage IIP

No. 06-2919 13

in February 2003 or her termination in May 2003. Ulti-

mately, however, it does not matter whether her dis-

cipline or her termination qualifies as the adverse action,

because she has failed to present enough evidence on the

third element—connecting her FML or support of Isaacs

with her discipline or termination.

Caskey can rely on two types of evidence in showing

that her protected activity motivated Hill’s action under

the direct method of proof: “direct evidence” or “cir-

cumstantial evidence.” Lewis v. School Dist. #70, 523 F.3d

730, 742 (7th Cir. 2008).3 Direct evidence is evidence

“which (if believed by the trier of fact) will prove the fact

in question without reliance upon inference or presump-

tion,” which typically involves an admission by the

decision maker regarding the retaliatory intent. Id. (cita-

tion omitted). Circumstantial evidence “allows the trier

of fact to infer intentional discrimination by the

decisionmaker,” typically through a longer chain of

inferences. Id. (citation omitted and emphasis in original).

Caskey has presented no direct evidence of a causal

connection for either her FMLA or Title VII retaliation

claims, and insufficient circumstantial evidence for

her FMLA claim. Caskey points to some circumstantial

3

Both parties appear to confuse the direct method of proof with

direct evidence of retaliatory or discriminatory intent. See Rudin

v. Lincoln Land Community College, 420 F.3d 712, 720 n.3 (7th

Cir. 2005) (observing that such confusion is understandable).

As we have noted previously, one may proceed under the

direct method of proof using either direct or circumstantial

evidence. Id. We will examine whether Caskey’s claims can

survive under the direct method of proof using either type of

evidence.

14 No. 06-2919

evidence for her Title VII retaliation claim by alleging

that Hill’s had a “pattern of terminating female em-

ployees who opposed sex discrimination and sex harass-

ment,” noting the termination of Isaacs and two other

female employees who supported Isaacs. Caskey sug-

gests that we infer from these other terminations that

she was the latest in a string of firings related to the

Isaacs incident. But her vague reference to a pattern,

without any detail regarding the context of the other

terminations, creates too sparse a trail to create circum-

stantial evidence of a causal connection. Like her FMLA

claim, Caskey’s Title VII claim must fail under the direct

method of proof.

Turning to the indirect method of proof, as with her

sex discrimination claim, her FMLA and Title VII retalia-

tion claims cannot survive summary judgment because

Caskey has not presented a similarly situated employee

that was treated more favorably. Moreover, Caskey did

not meet the legitimate expectations of her employer. She

had progressed through the disciplinary process to the

final stage, she did not follow the explicit agreement

under the letter of recommitment to have no absences

and use no emergency vacation time, and she did not

follow the proper procedures for giving notice of any

intended time off. Caskey cannot show that Hill’s retali-

ated against her for exercising her rights under FMLA

or Title VII.

Turning finally to her state law wrongful termination

claim, Caskey contends that she was fired in retaliation

for filing a workers’ compensation claim. Though em-

ployment in Indiana is generally at-will, Indiana recog-

nizes a cause of action for employees discharged in re-

taliation for filing a workers’ compensation claim. Hudson

No. 06-2919 15

v. Wal-Mart Stores, Inc., 412 F.3d 781, 785 (7th Cir. 2005)

(citing Frampton v. Cent. Ind. Gas Co., 260 Ind. 249, 297

N.E.2d 425 (Ind. 1973)). In order to survive summary

judgment on the claim, the employee must establish a

causal connection between her termination and the filing

of her workers’ compensation claim. Id. (citing Goetzke v.

Ferro Corp., 280 F.3d 766, 774 (7th Cir. 2002)). Caskey fails

to make a sufficient causal connection here. She relies

heavily on the timing of her discipline—i.e., that she

was disciplined shortly after her injury, and terminated

shortly after that. This timeline omits several other inter-

vening events, including the series of unexcused absences

in late May in violation of the Performance Agreement.

And timing evidence alone rarely creates a jury issue on

causation. Hudson, 412 F.3d at 787. The district court

correctly found that the dearth of evidence establishing

a causal connection doomed her state law retaliation claim.

III. CONCLUSION

For the foregoing reasons, the judgment in favor of

Hill’s and Colgate is AFFIRMED.

USCA-02-C-0072—7-24-08