Janczak v. Tulsa Winch, Inc. , 621 F. App'x 528 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 30, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
PAUL JANCZAK,
Plaintiff - Appellant,
v. No. 14-5071
(D.C. No. 4:13-CV-00154-CVE-FHM)
TULSA WINCH, INC., (N.D. Okla.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, EBEL, and LUCERO, Circuit Judges.
_________________________________
After suffering an injury, Paul Janczak took leave under the Family and Medical
Leave Act (“FMLA”). Immediately upon his return from FMLA leave, his employer,
Tulsa Winch, Inc. (“TWI”), terminated his employment. TWI claimed that it had decided
to terminate Janczak’s position while he was on leave. Janczak sued, alleging
interference and retaliation under the FMLA. The district court granted summary
judgment in favor of TWI, concluding that Janczak would have been fired even if he had
not taken FMLA leave. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
grant of summary judgment on the retaliation claim. However, because a reasonable jury
could find that TWI interfered with Janczak’s FMLA leave, summary judgment was
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
prematurely granted on the interference claim. Accordingly, on the interference claim,
we reverse and remand for further proceedings.
I
Paul Janczak was hired by TWI in June 2010 as General Manager (“GM”) of
Canadian operations. In May 2012, his immediate supervisor, Andrew Masullo, was
fired for an “inappropriate management style, including bullying of employees.” At that
time, TWI President Steve Oden stated that Janczak would continue to lead Canadian
operations at the firm and would have an opportunity to demonstrate his leadership skills.
The next month, Janczak attended a leadership program alongside other TWI managers,
and was found to have met performance standards. A summary of Janczak’s leadership
competencies prepared in mid-July 2012 stated the following:
Paul has begun demonstrating the leadership you would expect to find in a
General Manager. Our Canadian organization has significant growth
initiatives in place that will need strong support and leadership to be fully
realized. Paul has demonstrated enthusiasm about our new structure and
the opportunity [sic] demonstrate his leadership skills and I look forward to
seeing him take full advantage of it. This will be further reviewed at the
end of Q3.
Oden attests that on June 18, 2012, he visited the site where Janczak worked and
observed that, after Masullo’s departure, “the business structure in Canada was evolving
toward a matrix reporting structure wherein almost all of the Canadian department heads
were reporting directly into [sic] the functional executives at corporate headquarters in
Jenks, Oklahoma.” He also attests that, at a meeting on June 26, someone raised the
question “whether there was a need for a GM in Canada,” and that on July 6, Jill Evanko,
a vice president at TWI, “recommended elimination of [the GM] position.”
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On July 30, Janczak was injured in a vehicle accident. As a result, he took FMLA
leave between July 31, 2012 and October 1, 2012. In mid-August, Janczak forwarded his
FMLA leave certification to TWI. Janczak reports that he provided Oden additional
information about his medical condition during an August 23, 2012 phone call.
At the start of Janczak’s leave, Oden had not broached the elimination of
Janczak’s position with him. On August 8, Oden emailed Bill Spurgeon, to whom he
reported, to inform Spurgeon that although he would “be evaluating Paul’s performance
as a GM and the need for a GM in general,” he was “generally not a fan of a highly
matrixed and remote management structure . . . [p]articularly in the case of [the]
Canadian operation.” Oden suspected that TWI “will need a strong onsite presence to
make sure things are getting done,” and intended to give Janczak “time to demonstrate
his capabilities” and show that he is “the guy for that.” In an affidavit, Oden asserts that
“on or about August 14, 2012,” he decided to eliminate the GM position in Canada and
terminate Janczak’s employment.
Nevertheless, on the morning of August 14, Oden emailed Spurgeon to inform him
that he planned to “further evaluate Paul’s ability to provide the necessary leadership”
after his return from FMLA leave. And on August 21, Oden reported that Dave
Rowland, another TWI employee, “would be providing oversight of the supply chain and
manufacturing area during Paul’s absence which is estimated to run for the next three
weeks.” He also announced on August 21 that two new hires “will report directly to the
General Manager” in Canada. A contemporaneous announcement from TWI stated that
Janczak “may be able to travel and return to work sometime around the middle of
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September.” In an August 24 email, Cheryl Bailey, Director of Human Resources at
TWI, identified “Supporting Paul (upon his return)” as an agenda item. Bailey’s notes
from a meeting on August 27 contained a variety of notations regarding Janczak,
including “Check Paul’s contract,” “Rowland as next GM,” “Spurgeon vs Janczak,”
“phase PZ out,” “what is plan for Paul – eliminate position.” On August 31, Oden told
Spurgeon that he planned to eliminate the GM position and end Janczak’s employment.
On October 1, 2012, the day he returned to work, Janczak was told that his employment
had been terminated effective immediately “due to the discontinuation of [his] function.”
Subsequent to Janczak’s firing, a matrix reporting structure was adopted and
several Canadian management positions were eliminated, with the remaining Canadian
department heads reporting to executives in Oklahoma. This change resulted in TWI
firing its longtime Canadian Controller, Garry Jung.
On March 18, 2013, Janczak filed suit alleging that TWI engaged in retaliation
under the FMLA and interfered with his exercise of FMLA rights. Following discovery,
Janczak and TWI filed cross motions for summary judgment. The district court denied
Janczak’s motion and granted TWI’s motion. Janczak v. Tulsa Winch, Inc., No. 13-CV-
0154-CVE-FHM, 2014 WL 2197794, at *11 (N.D. Okla. May 27, 2014) (unpublished).
It concluded that Janczak had established the first two elements of his FMLA interference
claim but that TWI had shown, as a matter of law, that it would have discharged Janczak
even if he had not exercised his FMLA rights. Id. at *9-10. The district court also
concluded that Janczak satisfied the first two elements of a prima facie case of FMLA
retaliation, but that he had not shown a genuine issue of material fact as to a causal
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connection between his protected activity and his discharge. Id. Janczak timely
appealed.
II
A district court decision regarding a motion for summary judgment in an FMLA
case is reviewed de novo on appeal, applying the same standard as the district court.
Turner v. Pub. Serv. Co., 563 F.3d 1136, 1142 (10th Cir. 2009). We view facts in the
light most favorable to Janczak as the non-moving party and draw all reasonable
inferences in his favor. Tabor v. HILTI, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). “If
a reasonable jury could return a verdict for the nonmoving party, summary judgment is
inappropriate.” Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015) (quotation
omitted).
Janczak took leave under an FMLA provision “allowing leave because of a serious
health condition that makes the employee unable to perform the functions of the position
of such employee.” Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1164
(10th Cir. 2003) (citing 29 U.S.C. § 2612(a)(1)(D)) (quotation and alteration omitted).
We have observed that
[t]he legislative history accompanying the passage of the FMLA reveals
two motivations for the inclusion of [this] provision. First, Congress was
attempting to alleviate the economic burdens to both the employee and to
his or her family of illness-related job-loss. Second, Congress was
attempting to prevent those with serious health problems from being
discriminated against by their employers.
Id. (citations omitted). The FMLA also contains a provision prohibiting certain acts by
employers. § 2615. “This circuit has recognized two theories of recovery under
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§ 2615(a): an entitlement or interference theory arising from § 2615(a)(1), and a
retaliation or discrimination theory arising from § 2615(a)(2).” Metzler v. Fed. Home
Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006). “These two theories of
recovery are separate and distinct theories that require different showings, differ with
respect to the burden of proof, and differ with respect to the timing of the adverse action.”
Dalpiaz v. Carbon Cnty., Utah, 760 F.3d 1126, 1131 (10th Cir. 2014) (quotations and
alteration omitted). In particular, “the employer bears the burden of proof on the third
element of an interference claim once the plaintiff has shown her FMLA leave was
interfered with,” whereas the same is not true on a retaliation claim. Campbell v.
Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). Because of these
differences, it is generally easier for a plaintiff to prevail under an interference than a
retaliation theory. Id. (“Due to this difference in where the burden lies with respect to
the third element of each theory, it is not unusual for a plaintiff to pursue an interference
theory while the defendant argues that the evidence may only be analyzed under a
retaliation theory.”).
A
We begin by considering Janczak’s interference claim. Section 2615(a)(1) states
that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided in this subchapter,” such as the
right to take FMLA leave. Three elements are necessary to establish an FMLA
interference claim: (1) that the employee was entitled to FMLA leave; (2) that some
adverse action by the employer interfered with the employee’s right to take FMLA leave;
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and (3) that the employer’s action was related to the exercise or attempted exercise of her
FMLA rights. DeFreitas v. Horizon Inv. Mgmt. Corp., 577 F.3d 1151, 1159 (10th Cir.
2009). If an employee demonstrates the first two elements, the employer bears the
burden of demonstrating that the adverse decision was not related to the exercise of the
employee’s FMLA rights. Dalpiaz, 760 F.3d at 1132.
As the district court correctly noted, “unlike in a retaliation claim, an employer
defending against an interference claim has the burden of proving that it would have
terminated the employee regardless of the employee’s FMLA leave.” Janczak, 2014 WL
2197794, at *10 (citing Sabourin v. Univ. of Utah, 676 F.3d 950, 962 (10th Cir. 2012));
accord Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877 (10th Cir. 2004) (“If dismissal
would have occurred regardless of the request for an FMLA leave . . . an employee may
be dismissed even if dismissal prevents her exercise of her right to an FMLA leave.”).
The district court concluded that TWI had established as a matter of law that it would
have fired Janczak regardless of his FMLA leave on the basis of materials provided by
TWI showing that it was contemplating Janczak’s position prior to his leave. Janczak,
2014 WL 2197794, at *10.
We agree that TWI provided evidence suggesting that it was contemplating
eliminating the GM position before Janczak was placed on leave. But such evidence
does not constitute sufficient proof to permit summary judgment. Our precedent requires
an employer seeking summary judgment on an interference claim to show that
termination would certainly have occurred regardless of leave. See DeFreitas, 577 F.3d
at 1160 (considering whether the employee “would have been fired anyway, regardless of
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leave”); accord Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 548 (4th Cir.
2006) (holding that “an employer may deny restoration when it can show that it would
have discharged the employee in any event regardless of the leave”).
In concluding that evidence of contemplated but not definitive termination was
sufficient to dismiss an FMLA interference claim at the summary judgment stage, the
district court relied on Clark County School District v. Breeden, 532 U.S. 268 (2001) (per
curiam), a Title VII harassment case in which the Court noted that an employer’s
“proceeding along lines previously contemplated, though not yet definitively determined,
is no evidence whatever of causality.” Id. at 272. However, because Breeden involved
only a retaliation claim, see id. at 269, the employee bore the burden of establishing
causality. In contrast, TWI bears the burden of demonstrating that Janczak’s termination
was not related to the exercise of his FMLA rights. See Dalpiaz, 760 F.3d at 1132. And
Breeden does not establish that proceeding along previously contemplated lines negates
other evidence on which a jury might base its conclusion that a termination was related to
the exercise of FMLA rights.
Our cases upholding summary judgment against an employee who was fired while
validly taking FMLA leave have involved undisputed evidence that the employee in
question would have been terminated even if FMLA leave had not been taken. E.g.
Dalpiaz, 760 F.3d at 1134 (employee failed “to comply with a direct and legitimate order
from her supervisors”); Brown v. ScriptPro, LLC, 700 F.3d 1222, 1228 (10th Cir. 2012)
(“overwhelming evidence of . . . performance issues” that predated the leave); Bones, 366
F.3d at 877-78 (employee had repeatedly been tardy and was noncompliant with absence
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policy on the date she was terminated); McBride v. CITGO Petroleum Corp., 281 F.3d
1099, 1102 (10th Cir. 2002) (employee, prior to leave, had been tardy, absent from her
desk, and failed to timely pay invoices or update list of services received from vendors).
In contrast, we allowed an FMLA claim to go to a jury, even though substantial evidence
existed supporting the assertion that the employee was fired for reasons unrelated to the
leave, in a case where the employee had been a strong performer and the employer’s
proffered evidence contained internal inconsistencies. See DeFreitas, 577 F.3d at 1160-
61.
There is no evidence that Janczak ever violated company policy, was deficient in
his duties, or was insubordinate, as in Dalpiaz, Bones, Brown, or McBride. Nor does the
evidence proffered by TWI constitute undisputed proof that Janczak’s position was
definitively slated for elimination before his leave began. Construed in the light most
favorable to Janczak, the evidence TWI presented, including Evanko’s July 6
recommendation that the GM position be eliminated and Oden’s report that he
reevaluated the need for the GM position after firing Masullo, merely establish that the
company was uncertain about the future of its Canadian operations. This case is not like
Sabourin, where the evidence was “unequivocal that the reduction-in-force decision had
already been made” before the employee took FMLA leave. Cf. 676 F.3d at 959.
Even though TWI provided evidence that might persuade a jury to conclude that
Janczak’s leave ultimately played no role in his termination, the grant of summary
judgment prematurely took that determination from the jury. See Brown, 700 F.3d at
1227 (observing that “summary judgment for the employer is warranted only when there
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is no genuine dispute as to any material fact regarding the grounds for termination,” and
that “the question . . . is not whether a reasonable jury could find in favor of [the
employer], but rather whether the evidence is so one-sided that submission to a jury is not
required”); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (holding
that, in deciding whether to grant summary judgment, “the judge must ask himself not
whether he thinks the evidence unmistakably favors one side or the other but whether a
fair-minded jury could return a verdict for the plaintiff on the evidence presented”);
Bullington v. United Air Lines, Inc., 186 F.3d 1310, 1315 (10th Cir. 1999), overruled on
other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)
(concluding that summary judgment in employment discrimination case was premature
despite significant weaknesses in employee’s argument).
Under the facts of this case, a reasonable jury might conclude that Janczak’s
FMLA leave directly contributed to the decision to terminate him. For instance, a jury
could conclude that Oden would not have reconsidered the importance of keeping a GM
position in Canada, given his stated feeling as late as early August that a strong onsite
presence was needed, had Janczak not gone on extended leave. This interpretation would
be further bolstered by Oden’s statements in an August 14 email to Spurgeon
emphasizing the importance of “further evaluat[ing] Paul’s ability to provide the
necessary leadership,” his statements in an August 21 email to Spurgeon that “Rowland
will be providing oversight of the supply chain and manufacturing area during Paul’s
absence which is estimated to run for the next three weeks,” and TWI’s August 21
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announcement that “[w]e are hopeful that Paul may be able to travel and return to work
sometime around the middle of September.”
Additionally, as Janczak explains, the record makes it arguable that the decision to
terminate him became definitive not on Oden’s stated date of August 14, but instead later
that month, shortly after additional information about Janczak’s medical condition had
been received. See DeFreitas, 577 F.3d at 1160 (observing that “[w]henever termination
occurs while the employee is on leave, that timing has significant probative force,” and
describing a termination that “occurred just one day after [the employee] told [the
employer] that she would need to take a full six weeks off and could not return sooner” as
involving “particularly suggestive” timing); cf. Brown, 700 F.3d at 1227 (stating that an
employee’s being “fired only two days after his emails and meeting with [the employer]
about taking time off” for FMLA reasons “may be enough to prove the third element of
an interference claim, especially because the employer’s intent is irrelevant”). A
reasonable jury might rely on this information to infer that the decision to eliminate
Janczak’s position was related to his medical condition and his exercise of FMLA leave.
On the record before us, a reasonable jury could conclude that Janczak’s taking
FMLA leave played a role in his ultimate termination and so find in his favor. Though
taking advantage of Janczak’s absence to reevaluate the value of his contributions to the
company might appear a prudent economic decision in the abstract, protecting ill or
caregiving employees from the effects of such a decision is precisely the purpose of the
FMLA. See DeFreitas, 577 F.3d at 1161 (observing that “the FMLA was enacted
because employers had found it in their economic self-interest to fire employees who
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missed too much work for medical care or other reasons now addressed by the FMLA”);
Brockman, 342 F.3d at 1164 (recounting the FMLA’s purpose to “alleviate the economic
burdens to both the employee and to his or her family of illness-related job-loss”); cf.
Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 959 (10th Cir. 2002)
(employee prevailed on FMLA interference claim even though “[d]uring [her] absence,
[the employer] says it became apparent” that she had not fully trained her subordinate).
TWI is correct that courts are not empowered to be “super-personnel departments”
that can second-guess business judgments. See Bullington, 186 F.3d at 1318 n.14. But,
on summary judgment, we must view facts in the light most favorable to Janczak and
draw all inferences in his favor. Tabor, 703 F.3d at 1215. On the record before us, a
reasonable jury could—though need not—find in Janczak’s favor on the interference
claim. Accordingly, the grant of summary judgment was in error.
B
Janczak also advances an FMLA retaliation claim. We analyze retaliation claims
using the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under this approach, “the plaintiff bears the initial burden of
establishing a prima facie case of retaliation. If the plaintiff does so, then the defendant
must offer a legitimate, non-retaliatory reason for the employment action. The plaintiff
then bears the ultimate burden of demonstrating that the defendant’s proffered reason is
pretextual.” Metzler, 464 F.3d at 1170. “To make out a prima facie retaliation claim,
[Janczak] must show that: “(1) [he] engaged in a protected activity; (2) [his employer]
took an action that a reasonable employee would have found materially adverse; and (3)
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there exists a causal connection between the protected activity and the adverse action.”
Campbell, 478 F.3d at 1287 (quotation omitted).
We agree with Janczak that, for reasons similar to those discussed supra, the
temporal proximity between his leave and his firing, combined with the other evidence he
provides, suffices to establish a prima facie case of retaliation. See Metzler, 464 F.3d at
1171-72. We therefore consider whether TWI articulated a legitimate, nonretaliatory
reason for terminating Janczak. On these facts, we conclude that it articulated such a
reason. Terminating Janczak as part of a general reorganization of managerial
responsibilities constitutes a non-retaliatory basis for termination, and TWI has offered
evidence that such a reorganization has occurred. Cf. Yashenko, 446 F.3d at 551
(concluding that reorganization constitutes a legitimate, nonretaliatory basis for
termination).
Because TWI has articulated a legitimate, nonretaliatory reason for his
termination, the burden shifts back to Janczak to show that the stated reasons were
pretextual. We conclude that he fails to do so. Unlike his detailed explanation of why
TWI’s conduct constituted interference, his argument concerning pretext is conclusory
and underdeveloped: it consists only of a restatement of his temporal proximity
argument, which he concedes is insufficient to prove pretext, and conclusory allegations
that TWI’s real motivations were retaliatory. We do not see how the alleged evidentiary
discrepancy regarding whether TWI decided to terminate his employment on August 14
or August 27, absent further corroborating information, demonstrates that the “given
reasons for terminating [Janczak] are so weak, implausible, inconsistent, incoherent, or
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contradictory as to support a reasonable inference that [TWI] did not act for those
reasons.” Metzler, 464 F.3d at 1179.
Moreover, Janczak does not meaningfully address the fact that TWI restructured
its operations to permanently eliminate the position he occupied and that another
managerial employee, Jung, was also fired as part of that restructuring. We have
observed that “[a] retaliation claim is premised on an adverse employment action that
was allegedly motivated by the employee’s choice to take the protected leave,” and that
“[i]n the typical retaliation claim, the employee successfully took FMLA leave, was
restored to her prior employment status, and was adversely affected by an employment
action based on incidents post-dating her return to work.” Robert v. Bd. of Cnty.
Comm’rs, 691 F.3d 1211, 1219 n.6 (10th Cir. 2012). Janczak’s situation does not fit this
pattern, because he was never restored to his prior employment status; rather, it fits much
more naturally into an interference theory.
Accordingly, we conclude that summary judgment was proper as to the retaliation
claim, even though it was premature as to the interference claim. Resolving the
interference claim involves a fundamentally causal inquiry: whether Janczak’s taking
FMLA leave was causally connected to his termination. In contrast, resolving the
retaliation claim involves an inquiry into motivation: whether TWI’s proffered rationale
for terminating Janczak was mere pretext for its true, retaliatory motivation. Though
causation and motivation frequently align, the difference between interference and
retaliation claims illustrates that such alignment is not always necessary. See Johnson v.
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Rodriguez, 110 F.3d 299, 313 (5th Cir. 1997) (“The situation of pretext . . . concerns the
existence of retaliatory motivation, not causation.”).
We have previously observed that our precedent regarding FMLA claims “could
well result on occasion in granting or affirming summary judgment to an employer on a
retaliation claim but not on an equivalent interference claim.” See Sabourin, 676 F.3d at
962. Because Janczak has offered sufficient evidence for a reasonable jury to conclude
that his FMLA leave played a causal role in his termination, but not sufficient evidence
for that jury to conclude that the motivation for terminating him was retaliatory, this case
represents such an occasion.
III
We AFFIRM the grant of summary judgment on Janczak’s retaliation claim,
REVERSE the grant of summary judgment on his interference claim, and REMAND for
further proceedings.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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