*1
jury
court
correct No
that the district
was
reasonable
could find a
of
tablish
breach
any
represen-
on the oral
to deem
reliance
fiduciary duty
appearance
based on the
of
v. Fe-
Murphy
tation unreasonable.
application.
the
See Anderson
Liberty
v.
Cf.
LTL, Inc.,
893, 900
dEx Nat’l
Lobby,
242, 251-52, 106
477 U.S.
S.Ct.
(8th Cir.2010) (“We have
an
held that
es- 2505,
(1986)
tion and ade Liu
quately fairly presented and and
Huang requirements supplemental
insurance. The document was clear. As noted, short,
already page it was /£ The final half page
document. contained text,- above, but,
scant quoted stated “may applicant provide than an need to BROWN, Plaintiff-Appellant Jessica info,” “may more medical to take need results,” medical and report tests and v. any change “must report ... health that DIVERSIFIED DISTRIBUTION happens the insurance before is effective.” SYSTEMS, LLC, Defendant- duty This was not lengthy buried Appellee. document nor in text hidden smaller than balance document. It sand No. 14-2685. conspicuously wiched a line between where Appeals, United Court of States required Liu was to write his name and Eighth Circuit. security signature social number and a block Liu Huang signed where May Submitted: 2015. addition, policy. dated In the section Sept. Filed: 2015. header, at issue was offset with clear size, small, the font while even readable
in a form copied provided to our court. that, law, (relief argues duty type LINA also as a matter claims for relief different benefits), equitable representa plan purported representa claim based on oral from Amara, represen tions cannot succeed where the oral tion in this case could not. See (not express contrary plan appli addressing repre tations or are S.Ct. at 1878-80 oral sentations, language. appeal appro clarifying cation We need not in this but "other identify permissible equita priate equitable outer limits relief” in 29 U.S.C. 1132(a)(3) plan may ble claims administrators. Even be available for breach-of- claims); general if we as a fiduciary-duty were conclude matter Silva Metro. Life Co., Cir.2014) contrary oral statement written Ins. 723-27 (not plan application language might, addressing representations, ap or in some oral circumstances, . Amara) equitable support fiduciary- plying *4 Glennon, Min- argued,
Thomas Edward MN, Plaintiff-Appellant. neapolis, Roe, argued, Jessica Pamela Dawn support role, first struggled as Steinle, brief, Minneapolis, MN, . an account executive. Her performance Defendant-Appellee. reviews show that she repeatedly made serious recordkeeping errors that embar- RILEY, Before Judge, Chief BRIGHT rassed Diversified and nearly caused ma- MURPHY, Circuit Judges. jor revenue loss. Because she was not meeting
MURPHY, expectations, Judge. Circuit one of her scheduled pay delayed raises was by six months. Jessica Brown brought this action against her employer, Diversified Distribu- Brown took twelve weeks of FMLA Systems, tion alleging that she was demot- leave 2010 after receiving a breast can- ed and terminated in violation of the Fami- diagnosis. cer performance Her reviews ly and Medical (“FMLA”), Leave Act 29 noted that she had been unable prove §§ U.S.C. 2601-2654. also brought She she could succeed as an account executive claims under two Minnesota employment before leave, she went on but her manag- statutes, Minn.Stat. 181.933 and Minn. ers give wanted to her another chance. Stat. 181.961.The granted district court Brown with additional summary judgment for Diversified on all training after she leave, returned from claims. We in part affirm and reverse in her reviews in 2011 improvement noted part. her work. In June Diversified was *5 named “Vendor of the Year” by one itsof I. clients, Outfitters, Urban and Brown was
Diversified is a supply chain company specifically congratulated for her work. acquires a variety products July Brown’s 2011 performance review, the commercial retailers and other businesses. last one she received before going on preg- In 2002 Brown began working for Diversi- leave, nancy positive, was noting that she fied as a customer representative. service system “knows the well” and had “identi- She was later promoted to the position of. fied the way best to work with each con- backup account executive. Such “backup” tact at each account.” Although Brown’s account executives support account execu- reviews still identified areas for improve- tives who are on sick leave or taking per- ment, the granted company her the de- sonal time. Unlike executives, account layed pay raise. backups rarely directly interact with re- tailers. At the Backup employees end of are 2011 Diversified pur- not as- was signed individual chased accounts, by owner, customer a new Jim Murphy. they must develop familiarity with time, the ac- Around the same Kostecky Susan counts perform and support roles including became Brown’s supervisor in the account training systems and development. department. executive Murphy told his Brown received excellent reviews as a managers, including Kostecky, to rank backup account executive and displayed their employees and discharge the lowest particular aptitude for training other em- performers. The summary judgment rec- ployees. ord shows that on January 2012, Kos- tecky
In met with 2009 Brown promoted was Diversified’s Human from her Re- backup position Director, sources to Mary Pirkl, account executive. Louise Her to promotion included discuss employee three pay performance scheduled a pro- and raises that were contingent posed per- reorganization her of the account execu- formance meeting expectations. In department. con- tive Kostecky and Pirkl de- trast to her strong performance in her termined that Brown was underperforming August Kosteeky contacted Brown executive, they dis- and account as an early work to to return asked 2012 and back- to restructured moving cussed had she Because leave. FMLA from her contrast In position. executive
up account care, she child difficulty finding originally Brown role backup to the several from home for to work permission signifi- included position the new occupied, Brown and agreed told Kosteeky re- weeks. management training and account cant being reas- was time she first for the ben- and pay also offered It sponsibilities. Brown backup position. to the new signed account to those to equal efits reassign- she viewed complained executives. to the returned She a demotion. ment as Kosteeky before January 2012 late In working after September office backup the new about Brown had told weeks. for several from home Diversified informed position, sent Murphy early September In was pregnancy that her pregnant, she was to asking them managers his an email to attend needed risk, that she high reduction payroll 10% implement during the appointments medical frequent Kosteeky proposed the month. the end accommodated week. work Otto, two terminating Litzow Brown to allowed appointments these Even employees. underperforming three up to make time night from home work underperforming, though taking missed, enabling her avoid she excep- award had received her team born her child was before leave shortly before service customer tional nature of high risk 2012. Given June Kosteeky pro- maternity leave. took her claims have Pirkl pregnancy, backup new in the retaining Brown posed to tell they should wait Kosteeky that told underperformance despite role after until reassignment about executive. account causing to avoid leave from returned stress. additional complained 2012 Brown On October *6 Re- employee named resources a human again Outfitters Urban In June reassignment. her about Wolszon becca of the “Vendor its Diversified named company unhappy that also She was Outfitters the Urban According to Year.” home working from stop her to had asked provided the Brown manager, purchasing pre- had she arrangement Mondays, an on role in of service” level “highest in her testified enjoyed. Wolszon viously June around Also executive. account Brown’s she discussed that deposition main re- Chico’s, of Diversified’s one re- thereafter her and rights with it FMLA company clients, informed tail Re- to Human concerns layed elsewhere. its business to' take intended Pirkl, has denied who Director sources that his Murphy result As a Brown complaints. of Brown’s knowledge by 10%. payrolls their managers reduce 4 or 5 Kosteeky October on with also met up- performance a Murphy Kosteeky sent been she should have complained executives account team of date on Brown was job. same to her returned underperforming three identified which com- days after five on October Litzow, fired and Mu- Brown, Zac employees: testi- Kosteeky later to Wolszon. discussing plaining began a Management riel Otto. instead Brown to fire she decided fied that underperform- for these options number relationship a he had because termination, of Litzow including employees, ing client. retail Talbots, important with reduction payroll implement they did con- Kosteeky, the Talbots According to immediately. only apparent Trinity Towers, nection became to her Pulczinski Structural complained around the time that Brown to (8th Cir.2012). rights. human resources about her FMLA Two “subsections of the statute establish 2615(a)(1) prohibited acts.” Id. Section in Later October Brown submitted “makes it unlawful for employer to request asking for written Diversified with, restrain, ‘interfere deny the exer the “truthful reason for termination” [her] attempt cise of or the pursuant rights § to Minn.Stat. to exercise’ 181.933. FMLA,” thereafter received letter from Diversi- under the and section stating 2615(a)(2) fied that she had terminated been “makes it for ‘any unlawful em because the loss of the Chico’s account had ployer discharge or in any other manner required payroll to make re- company against any discriminate individual op for ductions. Brown submitted a written posing any practice made unlawful’ by the request personnel for her file Minn. under FMLA.” Id. “recognized We have three § All parties acknowledge Stat. 181.961. types of arising claims under these two that she then received at least part subsections”—entitlement, discrimination, personnel file, disputes and no one and retaliation brings claims—and Brown has complete now access to the file. all types against three Diversified. id. See
In brought December this alleging
action A. had been in demoted terminated viola- argues that Diversified §§ tion of the FMLA. See 29 U.S.C. 2601- denied her an entitlement under alleged 2654. She also that Diversified FMLA by failing restore her to the to provide failed her with the truthful account position executive she held before termination, reason violation she went leave. An entitlement claim 181.933, § Minn.Stat. and had refused to 2615(a)(1) arises under when “an em turn complete over her personnel file with- ployer refuses to authorize leave under the working days, seven violation of FMLA or takes other action to avoid re Minn.Stat. 181.961. The district court sponsibilities Pulczinski, under the Act.” granted to Diversified 691 F.3d at An employee who takes on all claims request and denied Brown’s entitled, FMLA leave “is upon her return permission to file a motion for recon- work, to be restored to position that is sideration. as, to, equivalent the same or substantially position occupied that she when the
II.
*7
leave began.”
Trinity
Walker v.
Marine
grant
of summary
We review
Products, Inc.,
(8th
721 F.3d
544
Cir.
judgment de novo.
v.
Woods
Daimler
2013);
2614(a)(1).
§
29
see
U.S.C.
When
Chrysler Corp., 409 F.3d
an
employee claims
denial of a benefit
Cir.2005). Summary judgment
“appro
is
FMLA,
to which she is entitled under the
priate if viewing the
in
light
record
not
that
employer
she “need
show
an
acted
most favorable to the nonmoving party,
Pulczinski,
with discriminatory intent.”
there are no genuine issues of material
The FMLA
an employee
“entitles
position
her
to
to
as account executive or to
twelve weeks of leave
work during
from
any
period
equivalent position. Although
an
employee
twelve-month
if the
Diversi
statutory requirements.”
meets certain
dispute
purpose
fied does not
for the
parties agree
The
that Brown en
summary
that
judgment
its motion
activity by requesting
equiva
protected
was “not
reassignment
gaged
Brown’s
argues that
it
leave
that she suffered an ad
prior position,
lent” to
FMLA
claim
an entitlement
was
employment
not have
action when she
she .does
verse
from tak
prohibited
not
role
her return
backup
upon
because she'
to a
moved
miscon
Diversified
ing FMLA leave.
a.
They
dispute
do
whether
from leave.
not
Brown does
claim.
ceives Brown’s
connection
existed”
between
“causal
interfered
actions
that Diversified’s
claim
right
exercise of her
to take
maternity
take
leave
to
ability
with
to
leave and Diversified’s decision
FMLA
failed to re
Diversified
but rather
that
Pulczinski,
at
reassign her.
691 F.3d
“equivalent” position when
her to an
store
undisputed
The
1007.
Walker, 721
leave. See
she returned from
Kostecky
Pirkl
record shows that
claim that Diversi
at 544. Brown’s
F.3d
“contemplating the transfer before”
were
thus
equivalent position
her an
fied denied
leave,
requested FMLA
which calls
Brown
framework as a
fits
the Pulczinski
within
any causal connection be
question
into
2615(a)(1)
claim. See 691
entitlement
Cnty. Sch. Dist.
tween the two. See Clark
Moreover, Brown’s entitle
at 1005.
F.3d
Breeden,
268, 272, 121
v.
532 U.S.
S.Ct.
from her discrimina
ment claim is distinct
(2001)
curiam).
(per
C.
2011) (en banc). A plaintiff may show that
argues
Brown also
that Diversi
the employer’s explanation
“unworthy
fied retaliated
by
terminating
credence ... because it has no
basis
days
her five
after she had complained to fact,” or “by persuading the court that a
human resources
about whether
prohibited reason
likely
more
motivated
rights
FMLA
had been violated. A retali
the employer.” Id.
2615(a)(2)
ation claim arises under
if an
Brown argues that the timing
employer takes “adverse action” against an
termination,
of her
which
just
came
five
employee who “opposes any practice made
days after she had complained that her
unlawful under the FMLA —for
if
example,
FMLA
violated,
were
rights
indicates that
employee complains
about an employ
“prohibited
reason more likely motivat
er’s refusal to comply with
statutory
ed” Diversified than a
to cut
need
mandate to permit FMLA leave.” Pulc
payroll. Torgerson, 643
zinski,
F.3d at 1047. Al
910 III. credence ... be- “unworthy of
Litzow was fact.” Torgerson, no basis in cause it has the Finally, argues that Brown had been sched- 1047. Litzow at F.3d granting sum district court erred until about the up uled for termination two to Diversified on her mary judgment Kos- complained to Wolszon. time Brown claims. She asserts employment state law to fire tecky that she decided testified that Diversified violated MinmStat. he had Brown of Litzow because instead by provide § her with failing 181.961 client, important with relationship record copy complete personnel of relationship appar- became only that this days, appear does not within but she seven met the time that Brown ent to her around subsequently acquired that dispute she Brown neverthe- with human resources. judg the file. To avoid entire in the sum- identified evidence less has claim, plaintiff must §a ment on 181.961 indicating that Lit- mary record judgment lack compli of of produce some evidence the Talbots removed from zow had been damages. Carpenter See ance or actual fired, before Brown was account months 918, Nelson, 257 Minn. 101 N.W.2d creating dispute thus fact. See Polaris, (1960); see also Wilson v. Woods, at 409 F.3d *1-2, Minn.App. at 1998 WL previously concluded We have (Minn.Ct.App.1998). at LEXIS *3-6 known its employer where an has about any identify does not records Brown taking for adverse action stated reason available at this time. have not been made employee pe- “for an extended against an damaged Brown she was Although asserts time,” after only acts the em- riod of by forcing comply Diversified to with the protected activity, ployee engages statute, provides sup no evidence to supports an in- employer’s earlier inaction law, port claim. this Under Minnesota Wallace, 442 pretext. F.3d ference controlling principle governing actions “the relationship with 1122. Litzow’s Talbots are damages damages is that which him, Kostecky’s fire predated plan to remote, conjectural not speculative, are Kostecky only offered Talbots a reason Co., 255 Leoni v. Bemis recoverable.” Litzow com- retaining after had (Minn.1977). Because N.W.2d A find- plained to human resources. “fact beyond specula proof “record contains no reasonably that if er infer” Litzow’s could actually damaged tion” that “alone been relationship with Talbots violation, § dis 181.961 Diversified’s for Brown’s termi- the true motivation” granted summary properly trict court nation, discharge “would not have fol- on this claim. See closely lowed on the heels” of so Sys., Corp. Tech. v. Cisco Storage complaint. Id. Brown has also Cir.2005). 921, 928 that calls into pointed question to evidence Di also maintains testimony re- credibility Kostecky’s be versified violated Minn.Stat. 181.933 firing. demotion and We thus garding the provide her with the truth cause it did disputes on these factual conclude based ful for her termination after she reason temporal proximity and the between it. provides Section 181.933 termination complaint and her has “employee that an who been involun genuine has issues of identified request ... in writ tarily may terminated prohibited “a material fact on whether ing employer employee inform reason, that the employer’s rather than the stated reason for the termination.” Minn. reason, actually termi- motivated” employer then at 1047. Stat. 181.933. The must Torgerson, nation.
9H employee in writ- “inform the terminated IV. for termi-
ing of the truthful reason the reasons, For these we now is employer “only nation.” Id. An liable 1. affirm the injured employee § under 181.933 to ‘an granted to on Brown’s ” by a of violation section 181.932.’ Nichols discrimination and Minn.Stat. v. Indep. Living, Metro. Ctr. 50 F.3d for claims, § 181.961 (8th Cir.1995) 514, (citing 517 Minn.Stat. 2. summary judgment reverse in favor 181.935). § alleged never Since Brown a of Diversified on Brown’s entitle- “whistleblower retaliation claim” under ment, retaliation, and Minn.Stat. 181.932, 516, § see id. at Diversified ar- claims, § 181.933 gues prove she also failed to a 3. remand for further proceedings not § 181.933claim. inconsistent opinion. with this Although plead did not BRIGHT, Judge, Circuit concurring. claim, §a “a party may 181.932 obtain I am pleased to concur majority in the recovery relief a of theory expressly on not opinion with brief comments for the bene- trial, [pled] complaint proved in the but at fit of judge parties the district and the on when it is on wrongful based the same act proceedings. further [pled], that was and when the opposing First, view, my supposed Brown’s party has had fair Dis Morgan notice.” “discrimination” claim under FMLA Unidynamic Corp., trib. Co. v. 868 F.2d not properly raised on appeal. Brown (8th 992, Cir.1989); Oglala 995 see Sioux provided perfunctory arguments regarding Andrus, Tribe v. Indians 603 F.2d claim, a “discrimination” ultimately (8th Cir.1979). 714 underly The same act concluded her claim is properly construed ing FMLA retaliation claim would an “entitlement” and not a “discrimina § support 181.932 claim. The ele 47). 39, 43-44, tion” (App. claim. Br. §a ments of 181.932 claim track ele Therefore, I would affirm the district claim, ments of an FMLA retaliation court’s dismissal of Brown’s discrimination apply “Minnesota courts the familiar claim without further discussion. See Rot three-part Douglas McDonnell analysis v. Cooley, 438 F.3d 854-55 skoff resolving retaliatory discharge claims Cir.2006) (holding develop a failure to Nichols, § under 181.932.” F.3d at equivalent issue in the briefs is to an aban Furthermore, pled § 181.933 provide donment of issue failure to claim in her complaint, “oppos so here the contention). a reason for a ing party Morgan has had fair notice.” Distrib., remand, Second, 995. Given the simi on Brown’s “entitle larity § governed retaliation and 181.932 ment” claim is claims, genuine burden-shifting we conclude issue of Douglas McDonnell See, fact e.g., material exists on whether Brown’s framework. Smith v. Diffee Ford-Lincoln-Mercury, termination letter the “truthful 298 F.3d (10th Cir.2002) reason” for discharge a dis (quoting King because pute similarly Grp., exists whether Diversi Tech. Preferred (7th Cir.1999)) exercising (noting fied retaliated her for proving that when “ rights. her FMLA Minn.Stat. intent See “entitlement” claim ‘[t]he ”). Instead, employer 181.933.The district court thus immaterial’ erred granting summary judgment only required Diversified Brown is to show “she was denied”—here, on the 181.933claim. res entitled to benefit company . uncommon which is See, e.g., Stall following leave. toration *11 like Diversified. 1041, Corp., Hussmann v. ings N. Cir.2006) (Brown’s v. Russell (8th (quoting that Dodd 1050 unusual It 3. (11th 1335, 1340 F.3d and Jor- Hosp., 346 supervisor) Broward “dotted-line” taken Cir.2003)). Here, facts are the not (Brown’s when were replacement) dahl Brown, prior most favorable light promotion in the of Jordahl’s notified facie strong prima has shown leave. Brown’s FMLA case. was indicating Litzow The evidence 4. account analysis of majority’s the Talbots
Third, the from during removed Kostecky’s claim, majori- the all of question calls into “discrimination” be- demotion discussion the alleged testimony regarding references ty 9, January Pirkl on Brown. Kostecky firing and and tween undisputed 2012, asserting “[t]he indicat- accolades Urban Outfitter’s Kostecky and record shows “highest lev- the ing Brown be- the transfer ‘contemplating Pirkl were role as account in her el of service” FMLA leave.” fore’ any indication undermines executive omitted)). (citation 905-06, 908 at (Maj. Op. January 2012 ex- an account as al “underperforming” the regarding facts To the extent 9, are rele ecutive. discussion January 2012 leged Brown’s “entitlement” either vant both claim, testimony of the
“retaliation” credibility subject to Pirkl is
Kostecky and by acknowledged jury the
findings 910) (“Biown (See has majority. id.
the HALL, Plaintiff-Appellant Marc into that calls pointed evidence Kostecky’s.testi credibility of question the v. City Torgerson mony”); see also COUNTY; Earl Eric RAMSEY 1031, Cir. Rochester, individually offi and his Anderson, (en banc) 2011) Reeves v. (quoting Sander individually Irving, Roy capacity; cial 133, Prods., 530 U.S. Plumbing son capacity; Melissa in his official 2097, L.Ed.2d 105 120 S.Ct. individually her offi and in Jimenez, determinations, (2000)) (‘“Credibility Leifeld, individual capacity; Jodi cial drawing of evidence, and weighing of capacity, Defen ly in her official are inferences the facts from legitimate dants-Appellees. ”). In functions, judge.’ jury those under following evidence 14-2985. particular, No. Kostecky and credibility both
mines the Appeals, Court of States United January 2012 meet regarding Pirkl Eighth Circuit. ing: January 1. Between 14, 2015. May Submitted: Brown informed date 14, 2015. Sept. Filed: leave, Brown was would need FMLA Banc Rehearing En Rehearing and to a be moved told would never 20, 2015. Denied Oct. back-up position. record that is no written 2. There occurred, meeting
January