TRACY ANDERSON, Plaintiff-Appellant, υ. NATIONS LENDING CORPORATION, Defendant-Appellee.
No. 21-1885
United States Court of Appeals For the Seventh Circuit
SUBMITTED NOVEMBER 12, 2021* — DECIDED MARCH 9, 2022
Before SYKES, Chief Judge, and RIPPLE and St. Eve, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:19-cv-05016 — Sharon Johnson Coleman, Judge.
RIPPLE,
I
BACKGROUND
A.
On January 4, 2017, Ms. Anderson began working as a Pre-Fund Underwriting Auditor for NLC, a residential mortgage lender. In reviewing loan applications, she verified the underlying documentation from the underwriter and ensured that the loan met established requirements. These responsibilities included identifying any deficiencies in the loan files by analyzing credit and collateral, as well as by confirming income and tax calculations. Both Ms. Anderson and her direct supervisor, Christine Gourley, worked remotely. To ensure regulatory compliance, NLC randomly selects ten percent of loans audited by Underwriting Auditors for an internal post-funding audit.
During her first year of employment in 2017, Ms. Anderson exhibited performance deficiencies. Gourley suspected that she was moving through files too quickly and counseled her. Ms. Anderson never was written up or formally disciplined, but she was provided ongoing training. During this time, she also experienced multiple health problems. Consequently, she exhausted all of her available sick days on an extended leave from October 6, 2017, to January 14, 2018.
When Ms. Anderson returned to work in January 2018, Gourley emailed her, having learned of additional performance issues, and asked her to explain these new errors. Ms. Anderson was unable to explain her mistakes, but she promised to be more diligent in the future. Gourley requested that she complete training before auditing more files. In February 2018, an NLC employee uncovered another of Ms. Anderson’s errors, and Gourley created a spreadsheet to keep track of these performance issues. Again NLC requested an explanation of the error, but Ms. Anderson could not remember how she made the necessary calculations, and she no longer had her notes for that file.
Four days after Ms. Anderson started her FMLA leave, NLC’s audit system flagged several more errors in Ms. Anderson’s loans. Finally, on May 1, 2018, the Department of Housing and Urban Development (“HUD”) notified NLC of two additional errors that Ms. Anderson had made on a loan that she audited a year prior. HUD cited NLC with the highest deficiency for these errors.
After learning of these errors in May 2018, Gourley recommended to Sam Asher, NLC’s Manager of Human Services, that Ms. Anderson be terminated based on her poor performance. Gourley believed that Ms. Anderson’s numerous errors constituted a violation of Section 3.01 of NLC’s Standards of Employee Conduct.2 Gourley further thought that Ms. Anderson’s level of performance was inconsistent with her twenty years of experience. As a result of Gourley’s recommendation, Asher began an investigation into Ms. Anderson’s performance. During the investigation, Asher consulted with legal counsel and his reporting senior.
Prior to the completion of the investigation, Ms. Anderson returned to work on June 11, 2018. Following NLC’s typical process for employees returning from leave, Gourley instructed her to go through her emails, sort through computer issues, catch up on training modules, and review any updated lending guidelines before she would be allowed to audit files again. NLC completed its investigation of Ms. Anderson’s work performance on June 14, 2018. The following day, Gourley and Asher called her and terminated her employment. According to Ms. Anderson, no one counseled her on her errors, and no one referred to her performance during the phone call.
B.
Ms. Anderson sued NLC under the ADA and for interference and retaliation associated with her rights under the FMLA.3 Her interference claim alleged that NLC’s “stated reason for [her] termination was pretext for interference with [her] right to return to work to her same position” following her approved FMLA leave.4 She asked for reinstatement, back pay, and other damages in compensation for the alleged interference with her right to return to work. Her retaliation claim alleged that Gourley “resented [her] lawful entitlement to FMLA leave[] and sought to punish [her] for availing herself of FMLA protections and to discourage [her]
NLC filed a motion for summary judgment. On April 16, 2021, the district court granted NLC’s motion for summary judgment as to all claims. With respect to her FMLA interference claim, although the parties had focused on whether Ms. Anderson was in fact reinstated upon return from her leave, the district court concluded that she had not established interference with her FMLA rights because she could not point to any evidence that she was entitled to reinstatement of her job upon her return from leave. The district court also concluded that NLC had presented ample evidence of a nondiscriminatory rationale for Ms. Anderson’s termination and that she had failed to provide any evidence that could refute NLC’s proffered reason. Ms. Anderson timely appealed the district court’s determination of her two FMLA claims.
II
We review the district court’s ruling on summary judgment de novo. Carter v. Chi. State Univ., 778 F.3d 651, 657 (7th Cir. 2015). Summary judgment is proper only if, after viewing all facts in the light most favorable to the nonmoving party and after drawing all reasonable inferences in her favor, the pleadings, depositions, and affidavits show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
A.
Ms. Anderson first contends that the district court erred by granting summary judgment on her FMLA interference claim. The principles that must guide our assessment of her claim are well established. The employee, here Ms. Anderson, has the burden of demonstrating that the alleged interference occurred. See Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th Cir. 2008). To prevail on an FMLA interference claim, she must establish that: “(1) she was eligible for the FMLA, (2) her employer was covered by the FMLA, (3) she was entitled to leave under the FMLA, (4) she provided notice of her intent to take leave, and (5) her employer denied her FMLA benefits to which she was entitled.” Lutes v. United Trailers, Inc., 950 F.3d 359, 363 (7th Cir. 2020) (cleaned up). Here, the parties contest the fifth element.
Under the FMLA, an employee on leave is entitled to restoration to the same or an equivalent position that she had before she took qualifying leave.
In its summary judgment motion, NLC maintained that the record demonstrated it had not interfered with her reinstatement because Ms. Anderson’s leave was approved, and she returned to the
In addressing Ms. Anderson’s FMLA interference claim, the district court, relying on our decision in Goelzer, concluded that Ms. Anderson’s characterization of her job upon return was of “no moment” because NLC had submitted evidence of her poor performance, and that evidence warranted, in any event, her discharge.6 The district court noted that NLC’s Standards of Conduct for employees permitted termination for substandard performance without first undertaking corrective action. The court went on to conclude that Ms. Anderson had not submitted any evidence to contest that NLC’s view of her performance was honestly believed.
Seeking reversal of the district court’s decision, Ms. Anderson now contends that there is a genuine issue of triable fact as to whether the reason proffered by NLC was pretextual. She submits that there is a dispute as to whether her job performance was so poor as to justify her discharge. She also claims that there is a genuine dispute as to whether Gourley deviated from her usual pattern of counseling poorly performing employees before resorting to discharge. In Ms. Anderson’s view, Gourley deviated from her usual approach because Ms. Anderson had taken FMLA leave.7
At the outset, we cannot accept Ms. Anderson’s submission that NLC interfered with her FMLA rights by restoring her position as a Pre-Fund Underwriting Auditor but not assigning her any loans to review during her first days back on the job. First, no rational finder of fact could conclude that asking a returning employee to catch up on missed emails and to catch up on directives and training missed during her absence amounts to the sort of “make-work” that might indicate an intent to sideline or “warehouse” an employee permanently. Nor could such a fact-finder conclude that asking her to catch up material she had missed deprived Ms. Anderson of the opportunity to participate fully in the responsibility, rewards, and satisfactions of the position for which she was hired. Moreover, NLC certainly had sufficient grounds not to assign Ms. Anderson to loan review tasks until it completed its investigation into what appeared to be her significant misfeasance in performing loan review duties.
The district court also correctly determined that, on this record, a rational jury could not conclude that Ms. Anderson was terminated because she had taken FMLA leave. An employee is not entitled to return to her prior position if she would have been terminated regardless of whether she took FMLA leave. See Breneisen v. Motorola, Inc., 512 F.3d 972, 978 (7th Cir. 2008). Thus, “an employee may be fired for poor performance when she would have been fired for such performance even absent her leave.” Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 805 (7th Cir. 2001); see also Cracco v. Vitran Express, Inc., 559 F.3d 625, 636 (7th Cir. 2009) (affirming summary judgment for employer where the employer “set forth substantial evidence that [the employee] was not entitled to resume his employment upon his return from leave because the company had, after an investigation, determined that he had not performed his duties in a competent manner prior to the commencement of his leave” and the employee failed to counter that evidence).
Here, Ms. Anderson has not presented sufficient evidence to conclude that her discharge was pretextual. Indeed, she never disputes NLC’s estimation of the quality of her work. Gourley testified that she was concerned about the errors Ms. Anderson was making prior to her FMLA leave. An internal audit during Ms. Anderson’s leave period then uncovered more errors on her part. Gourley testified, moreover, that the kind of errors Ms. Anderson made would not be expected from someone with her experience—more than twenty years in the industry. Ms. Anderson does not contest the errors discovered by NLC, nor can she point to any evidence to suggest that her files were improperly audited. In her deposition, Ms. Anderson was unable to provide any evidence that NLC exaggerated the severity of minor errors or falsified her alleged errors as a pretext for her termination. She also does not attempt to establish that there was any impropriety or shortcoming in NLC’s investigation.
Ms. Anderson points out that Gourley testified that she would have counseled Ms. Anderson about the loan deficiencies discovered during her leave if Ms. Anderson had been available at the time. The failure to render this advice upon Ms. Anderson’s return establishes, in Ms. Anderson’s view, FMLA interference. Gourley’s testimony cannot bear the weight that Ms. Anderson asks it to support. As NLC points out, read in context, there is no indication in Gourley’s testimony that she intended her counseling about individual errors to preclude a later termination based on Ms. Anderson’s entire record. Read in context, Gourley simply states that she would not have let any of these errors slide but would have brought them to Ms. Anderson’s attention to prevent any further mishaps for however long Ms. Anderson stayed with NLC.
More fundamentally, the evidence clearly establishes that NLC’s Standards of Employee Conduct specifically state that the company reserves the right to terminate employment without engaging in corrective counseling whenever the seriousness of the situation requires. Notably, the Standards further provide that counseling need not be repeated. There is no indication that Gourley believed that the situation warranted additional counseling on her part.
Finally, NLC based its decision to terminate Ms. Anderson’s employment on the results of the investigation conducted under the aegis of the Human Resources department. Although Gourley clearly initiated the process, Ms. Anderson points to no evidence to suggest that HR acted as the “cat’s paw” or “rubber stamp” for Gourley in the conduct of the investigation.
The district court correctly determined that Ms. Anderson has failed to raise a genuine issue of fact that her termination constituted an interference with her
B.
Ms. Anderson next contends that summary judgment on her retaliation claim was improper. In her view, the record establishes that her FMLA leave was a substantial or motivating factor in NLC’s termination decision and that the timing of her termination is suspicious. She submits that, if her discharge were based on poor work performance, NLC could have terminated her when the random audit triggered a review of some of her loans before she applied for FMLA leave. Instead, she continues, NLC fired her for alleged poor work performance only after she applied for FMLA leave. Finally, Ms. Anderson points to her last week at NLC and NLC’s failure to provide her with any work as proof of her experiencing a materially adverse action. Ms. Anderson also claims that Gourley was not supportive of her leave and made comments about her being “sick a lot” and needing a “full team” to run her department.8
“The FMLA provides that it is unlawful for an employer ‘to discharge or in any manner discriminate against’ any employee for opposing any practice the FMLA makes unlawful.” Goelzer, 604 F.3d at 995 (quoting
The evidence presented by Ms. Anderson fails to establish this causal connection. Ms. Anderson invites our attention to a comment by Gourley, the timing of the audit on her work performance (while she was on FMLA leave), and the fact that she never was disciplined for poor work performance at an earlier date as evidence of retaliatory intent.
We previously have rejected a similar argument under similar circumstances. The plaintiff in Cracco also was terminated upon returning from FMLA leave, and, similarly, his employer had discovered errors in his work performance while he was on leave. We concluded that “[i]f the FMLA allows an employer to base adverse employment actions on performance problems discovered while the employee is on leave, the fact that the employer discharges the employee when he returns from leave cannot be sufficient evidence to establish causation.” Id. at 634. Thus, “[s]ummary judgment for the employer is proper where the employer provides undisputed evidence that the adverse employment action is based upon the employee’s poor job performance,” even if the employee is fired after FMLA leave. Curtis v. Costco Wholesale Corp., 807 F.3d 215, 221 (7th Cir. 2015); see also Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344, 354 (7th Cir. 2009) (“[A] decline in performance before the employee engages in protected activity does not allow for an inference of retaliation.”).
Furthermore, Ms. Anderson’s invocation of Goelzer lacks merit. In Goelzer, the plaintiff had received positive performance reviews, and the termination decision was communicated after her supervisor found out she planned to take FMLA leave. 604 F.3d at 996. The plaintiff’s supervisor also “explicitly contrasted” the employee’s excellent attendance with her use of FMLA and refused to award a higher merit increase because the plaintiff missed too much work. Id. at 994. The facts of Cracco, like the facts here, do not allow for an inference that the FMLA leave was a motivating factor in the employee’s termination; the facts of Goelzer do.
Here, Ms. Anderson was terminated after her work performance deficiencies came to light while she happened to be on leave. Notably, however, Gourley began tracking Ms. Anderson’s mistakes in February 2018, before she requested FMLA leave in March. Shortly after her leave began, NLC learned of several additional mistakes Ms. Anderson had made. Moreover, Asher reviewed Ms. Anderson’s performance deficiencies, and there is no evidence of any animus on his part. His role was to assess Gourley’s allegations and to determine whether Ms. Anderson’s discharge was compatible with NLC policy.
Ms. Anderson also contends that it is suspicious that she was not fired immediately when the audit triggered a review of her loans. The fact that NLC and Gourley waited to terminate Ms. Anderson until the investigation was complete only supports a finding that there was no discriminatory FMLA retaliation. Waiting to confirm the results of the investigation supports a finding that NLC terminated Ms. Anderson based on performance; it is not suspicious that Ms. Anderson was not terminated earlier.
Ms. Anderson also attempts to create a genuine issue of triable fact by pointing to a comment by Gourley. Ms. Anderson testified that Gourley had commented to her
CONCLUSION
Ms. Anderson was unable to establish that she had a right to reinstatement despite the numerous work performance deficiencies discovered while she was on FMLA. She was also unable to demonstrate that NLC terminated her due to her taking FMLA leave rather than due to the deficiencies it discovered while she was out. We therefore affirm the district court’s determination that Ms. Anderson cannot establish an FMLA interference claim or an FMLA retaliation claim.
AFFIRMED