United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE
employment discrimination action, the plaintiff, Donna
Stewart, asserts claims under the Family and Medical Leave
Act of 1993 (29 U.S.C. § 2601, et seq.) (FMLA)
and Title VII, 42 U.S.C. 2000e, for alleged retaliation,
interference with FMLA rights, and intentional infliction of
began her employment with the defendant, Physicians Support
Services, Inc. (PSSI), on October 26, 2010. She was a Patient
Services Representative in the cardiology clinic office. Her
position involved checking-in patients, taking insurance
information, and performing associated duties. Christine
Adams, who managed several PSSI offices, was Stewart's
took medical leave under the FMLA starting July 20, 2012 to
have knee surgery, and she returned to work on August 13,
2012. After returning from knee surgery, Stewart claims that
she continued to exercise intermittent leave for physical
therapy, which ended on November 1, 2012. (Doc. 18-1 at 15
[Dep. p. 34]). In early November, 2012, in the presence of
Kelley Dressler and Stewart, Susie Davis, who was a PSSI
office coordinator, instructed a black co-worker, Lori
Tallent, to stop using a hallway leading to patient rooms.
Stewart alleges that this directive was racist, and that she,
Dressler, and Tallent discussed it at the time. Stewart did
not discuss the incident with anyone else and did not report
anything to her manager (Adams) or to Human Resources.
cannot recall any PSSI supervisors making derogatory comments
about Stewart taking time off for surgery or physical
therapy, and she was never refused time off. (Doc. 18-1 at
25-38). However, she asserts that Adams reprimanded her, by
email on November 12, 2012, for taking 30-minute lunch breaks
instead of an hour and then leaving work 30 minutes early. In
that email, Adams directed Stewart to obtain advance approval
for any adjustments to her schedule. In the months before her
employment was terminated, Stewart had a number of
disagreements with other employees. Stewart frequently
complained about other employees and Adams believed that
Stewart was trying to act like a manager in that Stewart
attempted to give directions to her coworkers. Adams believed
that Stewart continually raised excuses, avoided
responsibility, and disrespected Adams's authority. (Doc.
18, ¶ 20). On November 19, 2012, Adams investigated
certain instances of Stewart's behavior and found that
she had engaged in rude, disrespectful, unprofessional, and
other inappropriate conduct. (Doc. 18-3, ¶ 24). On the
same day, Davis and Adams met with Stewart and gave her a
Formal Written Warning concerning her continued behavior.
They advised her that any further conduct could result in
termination. Id. Stewart denied all allegations.
(Doc. 18-3, ¶ 25).
to PSSI, after the written warning, Stewart had additional
incidents with another employee, and Stewart directed
allegedly inappropriate comments towards Tallent, calling her
“half-and-half” and “creamy.” (Doc.
18-3, ¶ 28). PSSI has presented evidence that Adams
viewed Stewart's conduct to be disruptive,
confrontational, and disrespectful, and as undermining her
authority. (Doc. 18-3, ¶¶ 7-12). Adams ultimately
discussed Stewart's behavior with Human Resources
Generalist, Jude Terrones, and they decided to terminate
Stewart's employment based on an ongoing pattern of
unacceptable behavior. (Doc. 18-3, ¶ 29). Stewart's
employment was terminated on December 4, 2012.
claims that PSSI terminated her employment in retaliation for
reporting an allegedly racist comment by Davis to Tallent, in
violation of Title VII. She also contends that PSSI
interfered with her right to take FMLA leave and terminated
her in retaliation for taking leave. Stewart also asserts a
state law claim for intentional infliction of emotional
Summary Judgment Standards
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 Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “[S]ummary
judgment will not lie if the dispute about a material fact is
‘genuine, ' that is, if the evidence is such that a
reasonable jury could return a verdict for a nonmoving
party.” Anderson, 477 U.S. at 248. The courts
thus determine “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.” Id. at 251-52. The
non-movant's evidence is taken as true, and all
justifiable and reasonable inferences are to be drawn in the
non-movant's favor. Id. at 255. These general
summary judgment standards apply to plaintiff's
employment claims. See Tabor v. Hilti, Inc., 703
F.3d 1206, 1215 (10th Cir. 2013).
Title VII retaliatory termination claim
asserts a claim for retaliatory termination under Title VII,
based upon her allegation that she “made a complaint to
her supervisor about a discriminatory comment regarding an
African American coworker, ” and “[w]ithin
approximately a month, she was subsequently terminated for a
reason that was untrue.” (Complaint, Doc. 2-1 at 4-5).
Title VII makes it unlawful to terminate an employee for
engaging in a protected activity. A plaintiff proves a Title
VII violation “either by direct evidence of
discrimination or by following the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 .
. . (1973).” Khalik v. United Air Lines, 671
F.3d 1188, 1192 (10th Cir. 2012). In the absence of direct
evidence of discriminatory intent, the Court must analyze the
evidence under McDonnell Douglas. Riser v. QEP
Energy, 776 F.3d 1191, 1199-1200 (10th Cir. 2015).
the McDonnell Douglas burden-shifting framework, a
plaintiff must first establish a prima facie case of
retaliation. The plaintiff's burden at the prima facie
stage requires only a “small amount of proof necessary
to create an inference” of discrimination or
retaliation, by a preponderance of the evidence, and the
burden is “not onerous.” Smothers v. Solvay
Chem., Inc., 740 F.3d 530, 539 (10th Cir. 2014) (quoting
Orr v. City of Albuquerque, 417 F.3d 1144, 1149
(10th Cir. 2005)). If the plaintiff meets her prima facie
case, then the defendant “must offer a legitimate,
non-retaliatory reason for [its] employment action”
against the employee. Vaughn v. Villa, 537 F.3d
1147, 1150 (10th Cir. 2008) (quoting Metzler v. Fed. Home
Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir.
2006)). This burden is “one of production, not of
persuasion.” Smothers, 740 F.3d at 539
(quoting E.E.O.C. v. Horizon / CMS Healthcare Corp.,
220 F.3d 1184, 1191 (10th Cir. 2000)).
the employer meets the burden of showing a non-retaliatory
reason for the adverse employment action, then the plaintiff
may defeat summary judgment only by showing that “there
is a genuine dispute of material fact as to whether the
employer's proffered reason for the challenged action is
pretextual - i.e., unworthy of belief.” Randle v.
City of Aurora, 69 F.3d 44, 451 (10th Cir. 1995).
Pretext can be shown by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate
reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence and hence infer
that the employer did not act for the asserted
non-[retaliatory] reasons.” Vaughn, 537 F.3d
at 1153 (quoting Rivera v. City & Cty. Of
Denver, 365 F.3d 912, 925 (10th Cir. 2004)).
establish a prima facie case of retaliation, the plaintiff
must produce evidence to show that (1) she engaged in a
protected activity; (2) she suffered a material adverse
action; and (3) there was a causal connection between the
protected activity and the adverse action. Thomas v.
Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir.
2015); see also Argo v. Blue Cross and Blue Shield of
Kansas, Inc., 452 F.3d 1193, 1202 (10th Cir. 2006).
Stewart's employment was terminated, which is an adverse
employment action satisfying the second element.
support of the first element - that she engaged in protected
activity - Stewart asserts that she perceived Davis's
instruction to Tallent, to stop using a hallway leading to
patient rooms, as racist, and there was apparently some
discussion about the comment with Dressler and Tallent at the
time it was made:
Q. There's a statement in [a document submitted to the
EEOC] that . . . “About a month or less before I was
terminated, I reported a discriminatory comment made to an
African American coworker, Lori Tallent, by our supervisor,
Susie Davis.” Did I read that correctly?
A. Well, I reported it to Kelly Dressler. We were all -
Dressler. We were all there, but it was not a formal - I