Carla Theiss v. Walgreen Company

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0795n.06
Nos. 14-3892/3933 FILED
Dec 07, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARLA THEISS )
)
Plaintiff-Appellant/Cross-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
WALGREEN COMPANY, )
NORTHERN DISTRICT OF
)
OHIO
Defendant-Appellee/Cross-Appellant. )
)
)
BEFORE: BOGGS and BATCHELDER, Circuit Judges; HUCK, District Judge.
ALICE M. BATCHELDER, Circuit Judge. Carla Theiss filed suit against her employer,
Walgreen Company, claiming interference under the Family and Medical Leave Act (“FMLA”),
retaliation under the FMLA, and sexual harassment, hostile work environment, sexual
discrimination, and retaliation under state law. The district court granted summary judgment to
Walgreen Company (“Walgreens”) on both FMLA claims and, declining to exercise
supplemental jurisdiction over the accompanying state-law claims, dismissed them. We agree
with the district court that there was no interference or retaliation under the FMLA in this case.
We disagree with the district court’s characterization of its jurisdiction over the accompanying
state-law claims. Therefore, we AFFIRM in part, REVERSE in part, and REMAND for
proceedings consistent with this opinion.

The Honorable Paul C. Huck, Senior United States District Judge for the Southern District of Florida,
sitting by designation.
Nos. 14-3892/3933, Theiss v. Walgreen Company
I.
Carla Theiss (“Theiss”) worked in the shipping department at a Walgreens distribution
center. The facts underlying Theiss’s interference claim date back to November 4, 2010, when
she filed a request for intermittent FMLA leave. Her self-professed reason for the request was
“anxiety from co-workers and [management].” On November 18, 2010, Walgreens informed
Theiss that she did not qualify for the requested leave since she had not yet met the work-hour
requirements of the FMLA. On November 22, 2010, Walgreens gave further notice to Theiss
that her request had not been processed, and provided her with instructions regarding whom to
contact in order to pursue her claim. On December 20, 2010, Walgreens again contacted Theiss
to inform her that she needed to “have [her] physician provide clarification” on the request.
Walgreens explained that it needed this clarification by January 10, 2011, or else it would close
Theiss’s claim. Theiss never obtained this clarification from her physician. On March 4, 2011,
Walgreens contacted Theiss yet again and outlined several specific inadequacies in her FMLA
request that needed to be remedied before the claim could move forward. The letter even
included a HIPAA authorization form to make it more convenient for Theiss to supply the
needed information.
During this process, Theiss’s managers at the distribution center filed two corrective
actions against Theiss because of her absences from work. But each of the filings indicated that
the actions were provisional pending the processing of her FMLA request. Aside from these
provisional filings, Walgreens took no further action against Theiss for her repeated absences
during this period. This was the state of Theiss’s request for FMLA leave when she was
terminated on March 15, 2011.
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Nos. 14-3892/3933, Theiss v. Walgreen Company
Theiss’s retaliation claim arises out of the circumstances under which she was terminated
on March 15, 2011. From the time that Theiss began working in the distribution center in 2007,
she was in conflict with her fellow workers and with her supervisors. She asserts that she was
held to more rigorous standards, treated with unnecessary harshness, subjected to sexual
harassment by her coworkers, and forced to work in a hostile environment. On March 3, 2011,
Theiss accused Aaron Todd (“Todd”), a coworker, of physically assaulting her by bumping or
striking her as she walked through his work area. Theiss immediately reported Todd to their
managers. Theiss also reported the incident to the police and sought to press charges against
Todd. After investigating, the police determined not to take any action against Todd. To the
contrary, the investigating officer reported that he believed Todd had been assaulted by Theiss
and was willing to accept a complaint from Todd.
When Walgreens received Theiss’s report, it launched an investigation of its own.
Various managers interviewed eyewitnesses to the event and also reviewed video footage from
surveillance cameras in the warehouse. After gathering the pertinent data, Walgreens concluded
that Todd was not at fault in the incident, that Theiss had fabricated the claim, that she had
actually been the one to initiate contact with Todd, and that she lied in her report. Walgreens’s
official policy states that “[t]here are some behaviors for which there is zero tolerance and which
will lead to immediate termination of employment at Walgreens.” Among these behaviors are
“gross misconduct, negligence, harassment or horseplay” and “falsifying personnel or other
company documents.” In accordance with this stated policy, and in light of Theiss’s encounter
with Todd and her subsequent misrepresentation of that event, Walgreens terminated Theiss’s
employment.
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Nos. 14-3892/3933, Theiss v. Walgreen Company
Theiss filed suit against Walgreens on August 14, 2012, in state court in Wood County,
Ohio. On September 11, 2012, Walgreens removed the case to federal court, asserting that the
court had federal-question jurisdiction over the FMLA claims under 28 U.S.C. § 1331 and
diversity jurisdiction over the accompanying state-law claims under 28 U.S.C. § 1332. The
district court granted Walgreens’s motion for summary judgment on the FMLA claims, but it
dismissed the accompanying state-law claims, declining to exercise supplemental jurisdiction.
Theiss v. Walgreen Co., No. 3:12CV2294, 2014 WL 3908118 (N.D. Ohio Aug. 12, 2014).
II.
On an appeal of a grant of summary judgment, we review the district court’s decision de
novo. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 243 (6th Cir. 2004). We regard a district
court’s grant of summary judgment to be proper “where there exists no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Edgar v. JAC Prods., Inc.,
443 F.3d 501, 506 (6th Cir. 2006); see Fed. R. Civ. P. 56(a).
A.
Turning first to Theiss’s interference claim, we note that the FMLA does not provide a
remedy “unless the employee has been prejudiced by the violation . . . . The remedy is tailored to
the harm suffered.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).
The FMLA provides that an employee whose rights are interfered with is entitled to
damages equal to the amount of any wages, salary, employment benefits, or other
compensation denied or lost to such employee by reason of the violation; or in a
case in which wages, salary, employment benefits, or other compensation have
not been denied or lost to the employee, any actual monetary losses sustained by
the employee as a direct result of the violation.
29 U.S.C. § 2617(a)(1)(A)(i). If an employee does not suffer any damages, then the FMLA does
not provide a remedy.
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Nos. 14-3892/3933, Theiss v. Walgreen Company
Here, Theiss simply cannot show that she suffered any harm, prejudice, or denial of her
rights. Prior to her FMLA request on November 4, 2010, Theiss had made other requests for
leave that were granted. And even while she was waiting for Walgreens to process her latest
request, she was allowed numerous absences. Of course, she complains that those absences
brought corrective actions and that she would have taken more absences if she had not been
afraid of having her FMLA request denied. But these corrective actions were provisional
pending the processing of her request. She suffered no actual damages as a result of her filing
for leave or taking numerous absences during the processing period. Moreover, Theiss’s claim
that she would have taken more absences if her request had been granted in no way proves that
Walgreens interfered with her request in any way. Thus, Theiss has failed to demonstrate any
damages cognizable under the FMLA in 29 U.S.C. § 2617(a)(1)(A)(i). Where there are no
damages, the statute provides no remedy. Ragsdale, 535 U.S. at 89.
B.
In order to establish a prima facie case of retaliation under the FMLA, an employee must
demonstrate four things:
(1) she was engaged in an activity protected by the FMLA; (2) the employer knew
that she was exercising her rights under the FMLA; (3) after learning of the
employee’s exercise of FMLA rights, the employer took an employment action
adverse to her; and (4) there was a causal connection between the protected
FMLA activity and the adverse employment action.
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012) (quoting Killian v. Yorozu Auto. Tenn.,
Inc., 454 F.3d 549, 556 (6th Cir. 2006)). We will assume, without deciding, that the district
court was correct in finding that Theiss provided sufficient evidence to establish a prima facie
case of retaliation. See Theiss, 2014 WL 3908118 at *4. After an employee has established a
prima facie case, the burden “then must shift to the employer to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green,
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Nos. 14-3892/3933, Theiss v. Walgreen Company
411 U.S. 792, 802 (1973). Thus, the central question before us is “whether the employer took
the adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason.”
Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 282 (6th Cir. 2012) (internal quotation marks
omitted).
The record clearly demonstrates that when Walgreens was apprised of the incident
between Theiss and Todd, it immediately launched an investigation. Various personnel
managers and directors interviewed witnesses, examined diagrams, reviewed written statements,
and analyzed video footage. At the conclusion of the process, Walgreens agreed with the police
analysis that Theiss was not telling the truth, that Todd was not at fault, and that any scuffle was
attributable to Theiss instead. It was only after this investigation that Walgreens made the
decision to terminate Theiss’s employment.
We have previously held that “[i]n deciding whether an employer reasonably relied on
the particularized facts then before it, we do not require that the decisional process used by the
employer be optimal or that it left no stone unturned.” Smith v. Chrysler Corp., 155 F.3d 799,
807 (6th Cir. 1998). In reviewing Walgreens’s decision to fire Theiss, we are looking for “error
on the part of the employer that is too obvious to be unintentional.” Seeger, 681 F.3d at 286
(internal quotation marks omitted). In light of this standard, we find nothing in the record
showing any gross deficiency or oversight in Walgreens’s investigation. There is no evidence
showing that Walgreens’s reasons for firing Theiss were dishonest, pretextual, not sincerely held,
or discriminatory. On the contrary, Walgreens had a specific policy that provided for immediate
termination in cases of “harassment or horseplay” and “falsifying . . . documents.” Since
Walgreens determined—after due investigation—that this is precisely what Theiss had done, her
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Nos. 14-3892/3933, Theiss v. Walgreen Company
termination was directly in line with a clearly established company policy. There is nothing that
indicates that Walgreens intended to retaliate against Theiss.
C.
With reference to the district court’s decision not to exercise jurisdiction over Theiss’s
state-law claims, if the question is one of supplemental jurisdiction, we review for abuse of
discretion. Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010). But if this is a
question of diversity jurisdiction, we review the district court’s judgment de novo. Charvat v.
NMP, LLC, 656 F.3d 440, 446 (6th Cir. 2011) (citing Lewis v. Whirlpool Corp., 630 F.3d 484,
487 (6th Cir. 2011)). Since the motion for removal claimed diversity jurisdiction as the grounds
upon which the state-law claims were being removed, we consider this to be a question of
diversity jurisdiction and accordingly review de novo.
In its motion for removal, Walgreens asserted that Theiss’s state-law claims could be
heard by the district court because the requirements of diversity jurisdiction were satisfied. But
the district court interpreted these claims as if they had been brought under supplemental
jurisdiction and “thus dismiss[ed] Theiss’s state law claims without prejudice.” Theiss,
2014 WL 3908118 at *1. Because these state-law claims were in fact removed to federal court
under a claim of diversity jurisdiction, we remand these claims to the district court to determine
whether they meet the criteria of 28 U.S.C. § 1332.
III.
In conclusion, we AFFIRM the judgment of the district court with respect to the
dismissal of Theiss’s claims of interference and retaliation under the FMLA. We REMAND the
question of the district court’s jurisdiction over the attendant state claims for proceedings
consistent with this opinion.
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