Dynetta Cole v. State of Illinois ( 2009 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 08-1754
    D YNETTA C OLE,
    Plaintiff-Appellant,
    v.
    S TATE OF ILLINOIS, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 06-03089—Jeanne E. Scott, Judge.
    A RGUED D ECEMBER 11, 2008—D ECIDED A PRIL 7, 2009
    Before M ANION, E VANS, and T INDER, Circuit Judges.
    M ANION , Circuit Judge.     Dynetta Cole took leave
    under the Family and Medical Leave Act (“FMLA”) in
    November 2005. A month later, Cole’s superiors told her
    that she would lose her job if she did not submit to an
    employee improvement plan. When Cole refused to sign
    the plan, her employment was terminated. Cole sued
    her employer (the State of Illinois) and her superiors
    alleging retaliation for taking FMLA leave. The district
    2                                             No. 08-1754
    court granted summary judgment to the defendants.
    Cole appeals, and we affirm.
    I.
    The State of Illinois hired Dynetta Cole in October
    2004 to work as a receptionist in the Governor’s Office of
    Citizen’s Assistance (“GOCA”). The GOCA manages
    constituent correspondence for the Governor of Illinois
    by responding to letters, telephone calls, faxes, and
    emails. Cole’s duties encompassed responding to letters
    and copying and filing mail, as well as managing corre-
    spondence regarding child support. Her initial super-
    visor was Deputy Director of Correspondence Emily
    Montgomery. In July 2005, Montgomery was replaced
    by the new Deputy Director, Jay Brown. Brown reported
    to Director of Correspondence Cory Verblen, who had
    taken office in January 2005. Cole and Brown worked in
    Springfield; Verblen worked in Chicago.
    According to Brown and Verblen, they received numer-
    ous complaints about Cole’s performance. Cole’s co-
    workers allegedly complained about her frequent
    absences and personality conflicts. Email exchanges in
    September and October 2005 reveal that Cole clashed
    with Verblen and Brown over her doctor appointments
    and her schedule for picking up her children from school.
    Cole downplays the significance of these interactions,
    arguing that they were misunderstandings that were
    resolved.
    On November 10, 2005, Cole was injured in a car accident
    while on her lunch break. On November 18, she was
    No. 08-1754                                               3
    officially granted medical leave under the FMLA. Accord-
    ing to the form, the leave was to end “on or about 12/2005.”
    Prior to her return, Verblen called Cole and told her
    that her work was “piling up” and that she needed to
    return. Cole obtained permission from her doctor to
    return to work on December 5 on a part-time basis, and
    she did, although the transition was less than smooth.
    On December 14, Brown sent Cole an email at 9:40 a.m.,
    trying to ascertain where she was, and stating, “I under-
    stand that you’re going through a lot right now but this
    can’t keep happening.” On December 16, Cole arrived
    at work at 12:30 p.m.; Verblen had already sent her an
    email requesting her to call him when she arrived. Over
    the telephone, Cole told Verblen that Brown had given
    her permission to arrive late due to a doctor appoint-
    ment. After speaking with Cole, Verblen and Brown
    conferred by telephone. Brown urged Verblen to take
    disciplinary action. Verblen, with help from Brown,
    subsequently created an “employee improvement plan” for
    Cole.
    At a meeting between Cole, Verblen, and Brown on
    December 22, Verblen presented the improvement plan.
    The plan stated that it would extend from December 22
    to January 13 of the next year. Cole would meet with
    Verblen and Brown at the end of the period to discuss
    her compliance with the plan. The plan identified three
    areas for improvement: attendance, attitude, and job
    performance. Under attendance, the plan stated that
    Cole “needs to more effectively communicate to her
    superiors the exact days and times she will be out of the
    office.” To this end, the plan offered these “suggested
    4                                               No. 08-1754
    solutions”: Cole should write out her schedule “on a daily
    and weekly basis” and give copies to Verblen and
    Brown, and “[a]ny deviation from that ongoing schedule”
    should be brought to the attention of Verblen and Brown.
    Under attitude, the plan stated that the GOCA had re-
    ceived “multiple complaints from constituents” and staff
    members that Cole had been “rude and unhelpful.” These
    “suggested solutions” were offered: Cole should “become
    more aware of her tone” and should “work[ ] on be-
    coming a better listener.” Under job performance, the
    plan stated that Cole generally “completes the duties she
    is assigned in a satisfactory manner.” However, given
    her part-time status due to the car accident, “it is
    especially important that she keep up on her filing du-
    ties” in order to “alleviate the strain on her fellow em-
    ployees.” Accordingly, the plan suggested that Cole
    “plan[ ] out her day better and becom[e] more organized
    with her work.” Cole was told that she would be fired if
    she did not sign the plan.
    Cole declined to sign the improvement plan at the
    December 22 meeting. Instead, Cole responded by letter
    to Verblen and Brown on December 28. Cole’s letter
    indicated that she believed that she had performed her
    job satisfactorily, noting that she had scored well on her
    most recent job evaluation. Cole blamed any difficulties
    on a “cultural difference” and suggested that the GOCA
    offer seminars in “multicultural training,” “conflict resolu-
    tion,” “sensitivity training,” “stress management,” and
    “effective communication.” Cole, Verblen, and Brown
    conferred by telephone. Verblen told Cole that, although
    he appreciated her suggestions, she would be fired if
    No. 08-1754                                                5
    she did not sign the improvement plan. Cole again
    refused to sign and was fired.
    Cole then brought this suit against the State of Illinois,
    Montgomery, Verblen, and Brown. The complaint
    claimed that the defendants retaliated against Cole for
    exercising her FMLA rights, violated her First Amend-
    ment rights, and violated Illinois laws protecting whistle-
    blowers. The defendants moved for summary judg-
    ment, arguing that Cole could present no evidence of
    retaliation for the exercise of her FMLA rights. The defen-
    dants also argued that Cole had abandoned the First
    Amendment claim and the Illinois state claim. 1 The
    district court concluded that Cole had failed to present a
    “convincing mosaic” of circumstantial evidence to prove
    that the defendants had “acted with discriminatory intent.”
    After examining the evidence, the district court held
    that “[t]here is nothing Cole can point to that reasonably
    suggests that her termination was motivated by any-
    thing other than her refusal to accept the improvement
    plan.” Accordingly, the district court granted summary
    judgment for the defendants. Cole appeals.
    1
    The First Amendment claim and the whistleblower claim
    were based on allegations that Cole had threatened to report
    improprieties that occurred at the GOCA prior to her car
    accident. Because Cole abandoned these claims, it is unneces-
    sary to discuss them further.
    6                                                     No. 08-1754
    II.
    On appeal, Cole argues that the district court erred
    in granting the defendants summary judgment on her
    FMLA claim. That law makes it “unlawful for any em-
    ployer to discharge or in any other manner discriminate
    against any individual for opposing any practice made
    unlawful by this subchapter.” 
    29 U.S.C. § 2615
    (a)(2). Cole
    seeks to prove her claim under the direct method.
    Under this method, she must “present evidence that her
    employer took a materially adverse action against her on
    account of her protected activity.” Ridings v. Riverside
    Med. Ctr., 
    537 F.3d 755
    , 771 (7th Cir. 2008). Cole may
    prevail under the direct method either by “showing an
    admission of discrimination” or by “constructing a con-
    vincing mosaic of circumstantial evidence that allows a
    jury to infer intentional discrimination by the
    decisionmaker.” 2 
    Id.
     If the defendants contradict Cole’s
    2
    Cole contends that the district court “erroneously applied a
    much more strenuous standard” than the FMLA requires by
    stating that Cole had to show a “convincing mosaic” of circum-
    stantial evidence. The phrase “convincing mosaic” was first
    mentioned in Troupe v. May Department Stores, 
    20 F.3d 734
    , 736
    (7th Cir. 1994). We later clarified the meaning of this phrase,
    stating that:
    A mosaic is a work of visual art composed of a large
    number of tiny tiles that fit smoothly with each other, a little
    like a crossword puzzle. A case of discrimination can
    likewise be made by assembling a number of pieces of
    evidence none meaningful in itself, consistent with the
    (continued...)
    No. 08-1754                                                       7
    case, “the case must be tried unless [they] present[ ]
    unrebutted evidence” that an adverse action would have
    occurred “even if [they] had had no retaliatory motive.” 
    Id.
    The initial question is whether Cole was terminated “on
    account of” the exercise of her right to FMLA leave. The
    district court concluded that “[t]here is nothing Cole
    can point to that reasonably suggests that her termina-
    tion was motivated by anything other than her refusal
    to accept the improvement plan.” We agree. Brown
    testified in his deposition that Cole was fired for not
    2
    (...continued)
    proposition of statistical theory that a number of observa-
    tions each of which supports a proposition only weakly
    can, when taken as a whole, provide strong support if all
    point in the same direction: a number of weak proofs
    can add up to a strong proof.
    Sylvester v. SOS Children’s Vills. Ill., 
    453 F.3d 900
    , 903 (7th Cir.
    2006). We explained that Troupe did not necessarily require
    that “circumstantial evidence in a discrimination or retalia-
    tion case must . . . have a mosaic-like character.” 
    Id. at 904
    .
    In Sylvester, we held that summary judgment for the
    defendant was not warranted even though there was “no
    rich mosaic of circumstantial evidence of retaliation.” 
    Id.
    Despite Cole’s contention that the district court’s statement
    of law was “erroneous,” we do not believe that she has illumi-
    nated a point of any consequence. The “convincing mosaic”
    standard is simply shorthand for the requirement that Cole
    must present circumstantial evidence that, when considered
    together, would permit a jury to believe that the defendants
    retaliated against her for exercising her FMLA rights.
    8                                               No. 08-1754
    agreeing to the improvement plan. Prior to the termina-
    tion, Verblen told Cole twice that she would be fired if she
    did not sign the plan. Despite these warnings, Cole refused
    to sign. Although Cole was fired within two months of
    taking FMLA leave, we have held that “[s]uspicious
    timing alone rarely is sufficient to create a triable issue”
    and on a motion for summary judgment “mere temporal
    proximity is not enough to establish a genuine issue of
    material fact.” Andonissamy v. Hewlett-Packard Co., 
    547 F.3d 841
    , 851 (7th Cir. 2008). Cole has not introduced
    any evidence to suggest that her termination stemmed
    from any cause other than her refusal to sign the plan.
    Accordingly, insofar as Cole claims wrongful retaliation
    based on her termination, the district court properly
    granted summary judgment to the defendants.
    Cole also argues that the improvement plan itself con-
    stituted an adverse action. Thus, Cole claims that the
    presentation of the plan gave rise to a cause of action for
    retaliation. Moreover, she argues that the defendants’
    action need not be “materially adverse,” citing a Depart-
    ment of Labor regulation that states that an employer may
    not “use the taking of FMLA leave as a negative factor
    in employment actions, such as . . . disciplinary actions.”
    
    29 C.F.R. § 825.220
    (c). According to Cole, any disciplinary
    action that an employer takes on account of FMLA leave
    gives rise to a viable retaliation claim. Hence, under
    Cole’s view, because the improvement plan was disciplin-
    ary, its imposition constituted an adverse action.
    Contrary to Cole’s position, we have consistently re-
    quired that the adverse action giving rise to an FMLA
    No. 08-1754                                                  9
    retaliation claim be “materially adverse.” See, e.g., Ridings,
    
    537 F.3d at 771
    ; Breneisen v. Motorola, Inc., 
    512 F.3d 972
    , 979
    (7th Cir. 2008); Burnett v. LFW, Inc., 
    472 F.3d 471
    , 481 (7th
    Cir. 2006). “Materially adverse actions are not limited to
    employment-related activities but include any actions
    that would dissuade a reasonable employee from exercis-
    ing his rights under the FMLA.” Breneisen, 
    512 F.3d at
    979
    (citing Burlington N. & Santa Fe Ry. v. White, 
    548 U.S. 53
    (2006)). The Supreme Court has noted in the similar con-
    text of Title VII claims that “it is important to separate
    significant from trivial harms.” Burlington, 
    548 U.S. at 68
    .
    The decision to take FMLA leave “cannot immunize that
    employee from those petty slights or minor annoyances
    that often take place at work and that all employees
    experience.” 
    Id.
    Here, the adoption of the improvement plan did not
    constitute an adverse action that would cause a rea-
    sonable employee to forego exercising her rights under
    the FMLA. The most onerous aspect of the improvement
    plan was the requirement that Cole submit daily and
    weekly schedules to Verblen and Brown. Although the
    task of preparing daily plans would necessitate some
    extra work, this requirement is not so oppressive that a
    reasonable employee would be discouraged from taking
    FMLA leave. Presumably, a reasonable employee plans
    her day. The mere act of submitting a daily plan to one’s
    superiors is not an additional burden of great concern.
    Rather, it can be seen as a constructive assignment that,
    when executed, could improve an employee’s work
    habits and productivity.
    10                                                  No. 08-1754
    In addition to the planning requirements, the plan
    also obligated Cole to “become more aware of her tone”
    and to “work[ ] on becoming a better listener.” Such minor
    conditions would not dissuade a reasonable person
    from exercising her rights. Cole was not deprived of
    responsibility, hours, pay, or any other relevant accoutre-
    ment of her position. Indeed, “not everything that
    makes an employee unhappy is an actionable adverse
    action.” Oest v. Ill. Dep’t of Corr., 
    240 F.3d 605
    , 613 (7th Cir.
    2001). Accordingly, the improvement plan was not a
    materially adverse action. Cf. Haynes v. Level 3 Commc’ns,
    LLC, 
    456 F.3d 1215
    , 1224 (10th Cir. 2006) (concluding that
    an improvement plan, “standing alone, is not an adverse
    employment action”); Givens v. Cingular Wireless, 
    396 F.3d 998
    , 998 (8th Cir. 2005) (holding that placement “on a
    ‘performance improvement plan,’ without more, did
    not constitute an adverse employment action”); Taylor v.
    Small, 
    350 F.3d 1286
    , 1293 (D.C. Cir. 2003) (concluding
    that placement on an improvement plan that did not affect
    pay grade or salary was not an adverse action); Agnew
    v. BASF Corp., 
    286 F.3d 307
    , 310 (6th Cir. 2002) (stating
    that “institution of performance improvement plans,
    alone, do[es] not constitute objectively intolerable condi-
    tions”).
    Our prior decisions further support this conclusion. In
    Oest, we concluded that negative performance evalua-
    tions did not constitute materially adverse actions. We
    stated that although negative evaluations may have
    ultimately led to the termination, “[s]uch a course was
    not an inevitable consequence of every reprimand.” Oest,
    
    240 F.3d at 613
    . Instead, “job-related criticism can
    No. 08-1754                                              11
    prompt an employee to improve her performance and
    thus lead to a new and more constructive employment
    relationship.” 
    Id.
     We further noted that the plaintiff in
    Oest had not shown “any immediate consequence of the
    reprimands, such as ineligibility for job benefits like
    promotion, transfer to a favorable location, or an advanta-
    geous increase in responsibilities.” 
    Id.
     In this case, had
    Cole signed the employee improvement plan, it is possible
    that she may have satisfied Verblen and Brown and
    improved her relationship with her superiors. Moreover,
    as in Oest, Cole was not made ineligible for job benefits by
    the improvement plan; rather, the context for the plan
    was an attempt to secure Cole’s FMLA benefits while
    ensuring that she made an adequate contribution to the
    office. Accordingly, we conclude that Verblen’s act of
    requiring Cole to sign the improvement plan was not a
    materially adverse action.
    Cole relies on Lewis v. School District #70, 
    523 F.3d 730
    (7th Cir. 2008), in which we held that an employee had
    presented sufficient evidence of retaliatory intent to
    survive a summary judgment motion. In Lewis, a book-
    keeper at the defendant school district had taken FMLA
    leave after exhausting her vacation time and sick leave.
    
    Id. at 736
    . During her leave, she continued to perform
    her duties from home. 
    Id.
     “She never was credited for
    her time spent working at home . . . and she was not
    paid for the days on which she took FMLA leave.” 
    Id.
    Nevertheless, the school board wanted to terminate her
    and expressed frustration with the possibility that she
    might be protected under FMLA; board members called
    the situation a “fiasco” and decried former President
    12                                              No. 08-1754
    Clinton for signing the law. They also encouraged the
    superintendent to build a case for firing the bookkeeper
    in order to skirt the FMLA’s protections. 
    Id.
     Ultimately,
    the school board voted to replace the bookkeeper and
    gave her the option of either resigning or accepting a
    lower-paid position as a teacher’s assistant. 
    Id. at 737
    .
    The bookkeeper sued the school board members, the
    superintendent, and the school district. After the district
    court granted summary judgment for the defendants, we
    reversed. 
    Id. at 742
    . We held that the plaintiff had pre-
    sented sufficient evidence of retaliation. First, the letter
    informing the plaintiff of the school board’s decision to
    terminate her stated that “you miss too much work to
    meet the essential functions of your present assignment.”
    
    Id.
     Second, the comments of the school board suggested
    an impermissible motive. 
    Id. at 742-43
    . We noted that
    the school board could have taken other actions, such as
    hiring part-time help, if the bookkeeper’s inability to
    perform her functions was its true motivation. 
    Id. at 743
    .
    This case is distinguishable from Lewis. Unlike the
    plaintiff in that case, Cole was not fired or constructively
    discharged. Instead, the improvement plan offered her
    the opportunity to improve her performance and retain
    her job by increasing her communication with her superi-
    ors regarding her schedule. Unlike Lewis, Cole could
    have signed the plan and presumably avoided termina-
    tion. Moreover, the plaintiff in Lewis faced an employ-
    ment action that was actually materially adverse: she
    could either resign or take a significantly lower-paying
    job. In contrast, Cole faced the less-than-intimidating
    prospect of planning her days and minding her tone.
    No. 08-1754                                             13
    Accordingly, Lewis does not require that we reverse the
    district court.
    III.
    The district court properly granted summary judgment
    for the defendants on Cole’s FMLA retaliation claim. Cole
    has not produced any evidence that the defendants
    acted with retaliatory intent in terminating her employ-
    ment. The evidence demonstrates that the sole reason
    for her termination was her failure to agree to the perfor-
    mance improvement plan. Moreover, the performance
    improvement plan was not a materially adverse action
    because Cole suffered no reduction in responsibility, pay,
    hours, or any other benefit, and it did not impose a mate-
    rial change in her employment duties. In short, the im-
    provement plan would not have dissuaded a reasonable
    employee from exercising her rights under the FMLA.
    Accordingly, the district court properly granted sum-
    mary judgment for the defendants. We A FFIRM .
    4-7-09