Tracy Anderson v. Nations Lending Corporation

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-1885

TRACY ANDERSON,

Plaintiff-Appellant,

v.

NATIONS LENDING CORPORATION,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:19-cv-05016 — Sharon Johnson Coleman, Judge.

____________________

SUBMITTED NOVEMBER 12, 2021 * — DECIDED MARCH 9, 2022

____________________

Before SYKES, Chief Judge, and RIPPLE and ST. EVE, Circuit

Judges.

RIPPLE, Circuit Judge. Tracy Anderson brought this action

against her former employer, Nations Lending Corporation

*On November 8, 2021, we vacated the oral argument scheduled for No-

vember 12, 2021, after denying appellant’s motion to reschedule and re-

viewing the parties’ briefs. This appeal was therefore submitted on the

briefs and the record. See Fed. R. App. P. 34(a)(2).

2 No. 21-1885

(“NLC”), for violations of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., and for interference and re-

taliation associated with her rights under the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. The dis-

trict court granted NLC’s motion for summary judgment on

all claims. Ms. Anderson filed a timely notice of appeal and

now asks us to review the district court’s rulings on her FMLA

claims. We agree with the district court that Ms. Anderson has

not raised a genuine issue of material fact with respect to ei-

ther of these claims. We therefore affirm the judgment of the

district court.

I

BACKGROUND

A.

On January 4, 2017, Ms. Anderson began working as a

Pre-Fund Underwriting Auditor for NLC, a residential mort-

gage lender. In reviewing loan applications, she verified the

underlying documentation from the underwriter and ensured

that the loan met established requirements. These responsibil-

ities included identifying any deficiencies in the loan files by

analyzing credit and collateral, as well as by confirming in-

come and tax calculations. Both Ms. Anderson and her direct

supervisor, Christine Gourley, worked remotely. To ensure

regulatory compliance, NLC randomly selects ten percent of

loans audited by Underwriting Auditors for an internal

post-funding audit.

During her first year of employment in 2017, Ms. Ander-

son exhibited performance deficiencies. Gourley suspected

that she was moving through files too quickly and counseled

her. Ms. Anderson never was written up or formally

No. 21-1885 3

disciplined, but she was provided ongoing training. During

this time, she also experienced multiple health problems.

Consequently, she exhausted all of her available sick days on

an extended leave from October 6, 2017, to January 14, 2018.

When Ms. Anderson returned to work in January 2018,

Gourley emailed her, having learned of additional perfor-

mance issues, and asked her to explain these new errors.

Ms. Anderson was unable to explain her mistakes, but she

promised to be more diligent in the future. Gourley requested

that she complete training before auditing more files. In Feb-

ruary 2018, an NLC employee uncovered another of Ms. An-

derson’s errors, and Gourley created a spreadsheet to keep

track of these performance issues. Again NLC requested an

explanation of the error, but Ms. Anderson could not remem-

ber how she made the necessary calculations, and she no

longer had her notes for that file.

In March of 2018, Ms. Anderson experienced more health

issues, and Gourley told her to apply for FMLA leave.

Ms. Anderson asserts Gourley also made comments about

Ms. Anderson’s being “sick a lot” and about needing “a full

1

team there to run her department” during this time. On

March 19, Ms. Anderson began her FMLA leave and did not

return to work until June 11, 2018.

Four days after Ms. Anderson started her FMLA leave,

NLC’s audit system flagged several more errors in Ms. An-

derson’s loans. Finally, on May 1, 2018, the Department of

Housing and Urban Development (“HUD”) notified NLC of

two additional errors that Ms. Anderson had made on a loan

1 R.85-1 at 201:12–15, 220:6–10.

4 No. 21-1885

that she audited a year prior. HUD cited NLC with the highest

deficiency for these errors.

After learning of these errors in May 2018, Gourley recom-

mended to Sam Asher, NLC’s Manager of Human Services,

that Ms. Anderson be terminated based on her poor perfor-

mance. Gourley believed that Ms. Anderson’s numerous er-

rors constituted a violation of Section 3.01 of NLC’s Standards

2

of Employee Conduct. Gourley further thought that Ms. Ander-

son’s level of performance was inconsistent with her twenty

years of experience. As a result of Gourley’s recommendation,

Asher began an investigation into Ms. Anderson’s perfor-

mance. During the investigation, Asher consulted with legal

counsel and his reporting senior.

Prior to the completion of the investigation, Ms. Anderson

returned to work on June 11, 2018. Following NLC’s typical

process for employees returning from leave, Gourley in-

structed her to go through her emails, sort through computer

issues, catch up on training modules, and review any updated

lending guidelines before she would be allowed to audit files

again. NLC completed its investigation of Ms. Anderson’s

work performance on June 14, 2018. The following day, Gour-

ley and Asher called her and terminated her employment. Ac-

cording to Ms. Anderson, no one counseled her on her errors,

and no one referred to her performance during the phone call.

2 Section 3.01 states the following: “Violations of these Standards of Con-

duct … will result in corrective action including a verbal warning, written

warning or suspension, or termination of employment. … The Company

may determine that certain offenses are serious enough to skip corrective

action and warrant immediate termination, and reserves the right to skip

or repeat corrective actions.” R.79-1 at 217.

No. 21-1885 5

B.

Ms. Anderson sued NLC under the ADA and for interfer-

ence and retaliation associated with her rights under the

3

FMLA. Her interference claim alleged that NLC’s “stated

reason for [her] termination was pretext for interference with

[her] right to return to work to her same position” following

4

her approved FMLA leave. She asked for reinstatement, back

pay, and other damages in compensation for the alleged in-

terference with her right to return to work. Her retaliation

claim alleged that Gourley “resented [her] lawful entitlement

to FMLA leave[] and sought to punish [her] for availing her-

self of FMLA protections and to discourage [her] and others

5

from using FMLA leave.” In her view, NLC terminated her

employment to punish her for taking FMLA leave and to dis-

courage future FMLA leave.

NLC filed a motion for summary judgment. On April 16,

2021, the district court granted NLC’s motion for summary

judgment as to all claims. With respect to her FMLA interfer-

ence claim, although the parties had focused on whether

Ms. Anderson was in fact reinstated upon return from her

leave, the district court concluded that she had not established

interference with her FMLA rights because she could not

point to any evidence that she was entitled to reinstatement

of her job upon her return from leave. The district court also

concluded that NLC had presented ample evidence of a non-

discriminatory rationale for Ms. Anderson’s termination and

3 Ms. Anderson has abandoned her ADA claim.

4 R.1 at 6.

5 Id. at 8.

6 No. 21-1885

that she had failed to provide any evidence that could refute

NLC’s proffered reason. Ms. Anderson timely appealed the

district court’s determination of her two FMLA claims.

II

We review the district court’s ruling on summary judg-

ment de novo. Carter v. Chi. State Univ., 778 F.3d 651, 657 (7th

Cir. 2015). Summary judgment is proper only if, after viewing

all facts in the light most favorable to the nonmoving party

and after drawing all reasonable inferences in her favor, the

pleadings, depositions, and affidavits show “that there is no

genuine dispute as to any material fact and the movant is en-

titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) &

(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A.

Ms. Anderson first contends that the district court erred

by granting summary judgment on her FMLA interference

claim. The principles that must guide our assessment of her

claim are well established. The employee, here Ms. Anderson,

has the burden of demonstrating that the alleged interference

occurred. See Darst v. Interstate Brands Corp., 512 F.3d 903, 908

(7th Cir. 2008). To prevail on an FMLA interference claim, she

must establish that: “(1) she was eligible for the FMLA, (2) her

employer was covered by the FMLA, (3) she was entitled to

leave under the FMLA, (4) she provided notice of her intent

to take leave, and (5) her employer denied her FMLA benefits

to which she was entitled.” Lutes v. United Trailers, Inc.,

950 F.3d 359, 363 (7th Cir. 2020) (cleaned up). Here, the parties

contest the fifth element.

Under the FMLA, an employee on leave is entitled to res-

toration to the same or an equivalent position that she had

No. 21-1885 7

before she took qualifying leave. 29 U.S.C.

§ 2614(a)(1)(A)–(B). But “an employee is not entitled to return

to her former position if she would have been fired regardless

of whether she took the leave.” Goelzer v. Sheboygan Cnty., 604

F.3d 987, 993 (7th Cir. 2010). If NLC can present evidence that

Ms. Anderson would have been terminated regardless of her

leave, she can survive summary judgment only by raising a

genuine issue of material fact that, despite that evidence, she

was entitled to be reinstated. See Simpson v. Off. of the Chief

Judge of the Cir. Ct. of Will Cnty., 559 F.3d 706, 713 (7th Cir.

2009).

In its summary judgment motion, NLC maintained that

the record demonstrated it had not interfered with her rein-

statement because Ms. Anderson’s leave was approved, and

she returned to the same position after her leave. Ms. Ander-

son countered that NLC did not reinstate her to her former

position because, upon her return, she was given no loan files

to review, but instead was tasked with catching up on emails,

reviewing directives issued during her absence, and watching

training material.

In addressing Ms. Anderson’s FMLA interference claim,

the district court, relying on our decision in Goelzer, con-

cluded that Ms. Anderson’s characterization of her job upon

return was of “no moment” because NLC had submitted evi-

dence of her poor performance, and that evidence warranted,

6

in any event, her discharge. The district court noted that

NLC’s Standards of Conduct for employees permitted termina-

tion for substandard performance without first undertaking

corrective action. The court went on to conclude that

6 R.95 at 5.

8 No. 21-1885

Ms. Anderson had not submitted any evidence to contest that

NLC’s view of her performance was honestly believed.

Seeking reversal of the district court’s decision, Ms. An-

derson now contends that there is a genuine issue of triable

fact as to whether the reason proffered by NLC was pre-

textual. She submits that there is a dispute as to whether her

job performance was so poor as to justify her discharge. She

also claims that there is a genuine dispute as to whether Gour-

ley deviated from her usual pattern of counseling poorly per-

forming employees before resorting to discharge. In Ms. An-

derson’s view, Gourley deviated from her usual approach be-

7

cause Ms. Anderson had taken FMLA leave.

At the outset, we cannot accept Ms. Anderson’s submis-

sion that NLC interfered with her FMLA rights by restoring

her position as a Pre-Fund Underwriting Auditor but not as-

signing her any loans to review during her first days back on

the job. First, no rational finder of fact could conclude that

asking a returning employee to catch up on missed emails and

to catch up on directives and training missed during her ab-

sence amounts to the sort of “make-work” that might indicate

an intent to sideline or “warehouse” an employee perma-

nently. Nor could such a fact-finder conclude that asking her

7 Ms. Anderson also asserts that she was prejudiced because the district

court granted summary judgment on a ground different from the ground

asserted by NLC in its motion. She points out that NLC maintained that

there was no interference with her reinstatement because she had returned

from leave and been reinstated in her former position. An examination of

the record makes clear that Ms. Anderson was well-oriented to the issue

before the court: whether NLC was obligated to restore her to her job at

the end of the FMLA leave. She was under no misapprehension and suf-

fered no unfairness in this regard.

No. 21-1885 9

to catch up material she had missed deprived Ms. Anderson

of the opportunity to participate fully in the responsibility, re-

wards, and satisfactions of the position for which she was

hired. Moreover, NLC certainly had sufficient grounds not to

assign Ms. Anderson to loan review tasks until it completed

its investigation into what appeared to be her significant mis-

feasance in performing loan review duties.

The district court also correctly determined that, on this

record, a rational jury could not conclude that Ms. Anderson

was terminated because she had taken FMLA leave. An em-

ployee is not entitled to return to her prior position if she

would have been terminated regardless of whether she took

FMLA leave. See Breneisen v. Motorola, Inc., 512 F.3d 972, 978

(7th Cir. 2008). Thus, “an employee may be fired for poor per-

formance when she would have been fired for such perfor-

mance even absent her leave.” Kohls v. Beverly Enters. Wis.,

Inc., 259 F.3d 799, 805 (7th Cir. 2001); see also Cracco v. Vitran

Express, Inc., 559 F.3d 625, 636 (7th Cir. 2009) (affirming sum-

mary judgment for employer where the employer “set forth

substantial evidence that [the employee] was not entitled to

resume his employment upon his return from leave because

the company had, after an investigation, determined that he

had not performed his duties in a competent manner prior to

the commencement of his leave” and the employee failed to

counter that evidence).

Here, Ms. Anderson has not presented sufficient evidence

to conclude that her discharge was pretextual. Indeed, she

never disputes NLC’s estimation of the quality of her work.

Gourley testified that she was concerned about the errors

Ms. Anderson was making prior to her FMLA leave. An in-

ternal audit during Ms. Anderson’s leave period then

10 No. 21-1885

uncovered more errors on her part. Gourley testified, moreo-

ver, that the kind of errors Ms. Anderson made would not be

expected from someone with her experience—more than

twenty years in the industry. Ms. Anderson does not contest

the errors discovered by NLC, nor can she point to any evi-

dence to suggest that her files were improperly audited. In

her deposition, Ms. Anderson was unable to provide any ev-

idence that NLC exaggerated the severity of minor errors or

falsified her alleged errors as a pretext for her termination.

She also does not attempt to establish that there was any im-

propriety or shortcoming in NLC’s investigation.

Ms. Anderson points out that Gourley testified that she

would have counseled Ms. Anderson about the loan deficien-

cies discovered during her leave if Ms. Anderson had been

available at the time. The failure to render this advice upon

Ms. Anderson’s return establishes, in Ms. Anderson’s view,

FMLA interference. Gourley’s testimony cannot bear the

weight that Ms. Anderson asks it to support. As NLC points

out, read in context, there is no indication in Gourley’s testi-

mony that she intended her counseling about individual er-

rors to preclude a later termination based on Ms. Anderson’s

entire record. Read in context, Gourley simply states that she

would not have let any of these errors slide but would have

brought them to Ms. Anderson’s attention to prevent any fur-

ther mishaps for however long Ms. Anderson stayed with

NLC.

More fundamentally, the evidence clearly establishes that

NLC’s Standards of Employee Conduct specifically state that the

company reserves the right to terminate employment without

engaging in corrective counseling whenever the seriousness

of the situation requires. Notably, the Standards further

No. 21-1885 11

provide that counseling need not be repeated. There is no in-

dication that Gourley believed that the situation warranted

additional counseling on her part.

Finally, NLC based its decision to terminate Ms. Ander-

son’s employment on the results of the investigation con-

ducted under the aegis of the Human Resources department.

Although Gourley clearly initiated the process, Ms. Anderson

points to no evidence to suggest that HR acted as the “cat’s

paw” or “rubber stamp” for Gourley in the conduct of the in-

vestigation.

The district court correctly determined that Ms. Anderson

has failed to raise a genuine issue of fact that her termination

constituted an interference with her FMLA leave. Ms. Ander-

son did not provide evidence that would permit a reasonable

trier of fact to conclude that her work performance deficien-

cies did not take place or that NLC’s investigation into the de-

ficiencies was not a bona fide attempt to assess the appropri-

ate action for NLC to take.

B.

Ms. Anderson next contends that summary judgment on

her retaliation claim was improper. In her view, the record

establishes that her FMLA leave was a substantial or motivat-

ing factor in NLC’s termination decision and that the timing

of her termination is suspicious. She submits that, if her dis-

charge were based on poor work performance, NLC could

have terminated her when the random audit triggered a re-

view of some of her loans before she applied for FMLA leave.

Instead, she continues, NLC fired her for alleged poor work

performance only after she applied for FMLA leave. Finally,

Ms. Anderson points to her last week at NLC and NLC’s

12 No. 21-1885

failure to provide her with any work as proof of her experi-

encing a materially adverse action. Ms. Anderson also claims

that Gourley was not supportive of her leave and made com-

ments about her being “sick a lot” and needing a “full team”

8

to run her department.

“The FMLA provides that it is unlawful for an employer

‘to discharge or in any manner discriminate against’ any em-

ployee for opposing any practice the FMLA makes unlawful.”

Goelzer, 604 F.3d at 995 (quoting 29 U.S.C. § 2615(a)(2)). “Re-

taliation claims under the FMLA … require three familiar el-

ements: (1) the employee engaged in statutorily protected ac-

tivity; (2) the employer took adverse action against the em-

ployee; and (3) the protected activity caused the adverse ac-

tion.” Freelain v. Vill. of Oak Park, 888 F.3d 895, 901 (7th Cir.

2018). To succeed on her retaliation claim, Ms. Anderson does

not need to prove that “retaliation was the only reason for her

8 R.85-1 at 201:12–15, 220:6–10. In her reply brief, Ms. Anderson also con-

tests that NLC treated another, potentially similarly situated, employee,

Mary Cacciotti, more favorably because Cacciotti did not take FMLA leave

and was counseled about her mistakes. Ms. Anderson, while mentioning

Cacciotti in her opening brief’s statement of facts, failed to present a de-

veloped argument in that brief. Her failure to present such an argument

normally would constitute a waiver. White v. United States, 8 F.4th 547, 552

(7th Cir. 2021) (explaining that skeletal arguments in the opening brief and

arguments raised for the first time in the reply brief are waived). However,

NLC failed to invoke waiver in its brief. Under these circumstances, NLC

has waived Ms. Anderson’s waiver. Ms. Anderson’s argument neverthe-

less fails. Ms. Anderson has not shown that Cacciotti is “directly compa-

rable to her in all material respects,” including “education, experience,

and qualifications.” See Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 751 (7th

Cir. 2006) (quoting Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th

Cir. 2002)). There is no evidence that Cacciotti’s level of experience was

comparable to Ms. Anderson’s twenty years of experience in the industry.

No. 21-1885 13

termination; she may establish an FMLA retaliation claim by

‘showing that the protected conduct was a substantial or mo-

tivating factor in the employer’s decision.’” Lewis v. Sch. Dist.

#70, 523 F.3d 730, 741–42 (7th Cir. 2008) (quoting Culver v. Gor-

man & Co., 416 F.3d 540, 545 (7th Cir. 2005)). Ms. Anderson

was engaging in statutorily protected activity by utilizing

FMLA leave and experienced an adverse action when she was

terminated from her position. “Therefore, we need only de-

termine whether the record established by [Ms. Anderson]

supports the inference that [she] established a causal connec-

tion between the two events.” See Cracco, 559 F.3d at 633.

The evidence presented by Ms. Anderson fails to establish

this causal connection. Ms. Anderson invites our attention to

a comment by Gourley, the timing of the audit on her work

performance (while she was on FMLA leave), and the fact that

she never was disciplined for poor work performance at an

earlier date as evidence of retaliatory intent.

We previously have rejected a similar argument under

similar circumstances. The plaintiff in Cracco also was termi-

nated upon returning from FMLA leave, and, similarly, his

employer had discovered errors in his work performance

while he was on leave. We concluded that “[i]f the FMLA al-

lows an employer to base adverse employment actions on

performance problems discovered while the employee is on

leave, the fact that the employer discharges the employee

when he returns from leave cannot be sufficient evidence to

establish causation.” Id. at 634. Thus, “[s]ummary judgment

for the employer is proper where the employer provides un-

disputed evidence that the adverse employment action is

based upon the employee’s poor job performance,” even if the

employee is fired after FMLA leave. Curtis v. Costco Wholesale

14 No. 21-1885

Corp., 807 F.3d 215, 221 (7th Cir. 2015); see also Long v. Teachers’

Ret. Sys. of Ill., 585 F.3d 344, 354 (7th Cir. 2009) (“[A] decline

in performance before the employee engages in protected ac-

tivity does not allow for an inference of retaliation.”).

Furthermore, Ms. Anderson’s invocation of Goelzer lacks

merit. In Goelzer, the plaintiff had received positive perfor-

mance reviews, and the termination decision was communi-

cated after her supervisor found out she planned to take

FMLA leave. 604 F.3d at 996. The plaintiff’s supervisor also

“explicitly contrasted” the employee’s excellent attendance

with her use of FMLA and refused to award a higher merit

increase because the plaintiff missed too much work. Id. at

994. The facts of Cracco, like the facts here, do not allow for an

inference that the FMLA leave was a motivating factor in the

employee’s termination; the facts of Goelzer do.

Here, Ms. Anderson was terminated after her work per-

formance deficiencies came to light while she happened to be

on leave. Notably, however, Gourley began tracking Ms. An-

derson’s mistakes in February 2018, before she requested

FMLA leave in March. Shortly after her leave began, NLC

learned of several additional mistakes Ms. Anderson had

made. Moreover, Asher reviewed Ms. Anderson’s perfor-

mance deficiencies, and there is no evidence of any animus on

his part. His role was to assess Gourley’s allegations and to

determine whether Ms. Anderson’s discharge was compatible

with NLC policy.

Ms. Anderson also contends that it is suspicious that she

was not fired immediately when the audit triggered a review

of her loans. The fact that NLC and Gourley waited to termi-

nate Ms. Anderson until the investigation was complete only

supports a finding that there was no discriminatory FMLA

No. 21-1885 15

retaliation. Waiting to confirm the results of the investigation

supports a finding that NLC terminated Ms. Anderson based

on performance; it is not suspicious that Ms. Anderson was

not terminated earlier.

Ms. Anderson also attempts to create a genuine issue of

triable fact by pointing to a comment by Gourley. Ms. Ander-

son testified that Gourley had commented to her that she was

“sick a lot” and that Gourley needed a full team to achieve the

department’s goals. When assessed in the context of this rec-

ord, this remark is insufficient to survive summary judgment.

Cf. id. at 994–96 (reversing summary judgment where em-

ployer repeatedly lamented the employee’s leave and explic-

itly denied the employee merit increases because the em-

ployee missed too much time). The record makes clear that,

in NLC’s decision-making process, Gourley was not the final

decision-maker. Indeed, the entire purpose of the HR investi-

gation was to ensure that discharge on the ground of poor

work performance was justified. The deposition of Asher and

the rest of the record make clear that the investigators, Asher

9

and his reporting senior, regarded Gourley more as a com-

plainant than a final decision-maker. Although Gourley had

authority to initiate the proposal that Ms. Anderson’s em-

ployment be terminated, her authority to discharge was sub-

ject to the approval of others who were tasked with assessing

whether her recommendation was compatible with company

policy. There is no indication in the record, and indeed

Ms. Anderson does not argue, that Asher and his reporting

9 See R.85-2 at 41:11–25 (Asher testifying that, after reviewing the infor-

mation available to him, he escalated the issue to his supervisor for further

consultation); R.79-1 at 203 (Asher emailing Gourley’s complaints of

Ms. Anderson’s work deficiencies for legal counsel review).

16 No. 21-1885

senior did not understand their role or in any way abnegated

their responsibility to arrive at an independent decision.

CONCLUSION

Ms. Anderson was unable to establish that she had a right

to reinstatement despite the numerous work performance de-

ficiencies discovered while she was on FMLA. She was also

unable to demonstrate that NLC terminated her due to her

taking FMLA leave rather than due to the deficiencies it dis-

covered while she was out. We therefore affirm the district

court’s determination that Ms. Anderson cannot establish an

FMLA interference claim or an FMLA retaliation claim.

AFFIRMED