Caskey, Tracy L. v. Colgate-Palmolive ( 2008 )

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