Adesina Mercer v. The Arc of Prince Georges County , 532 F. App'x 392 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1300
ADESINA A. MERCER,
Plaintiff - Appellant,
v.
THE ARC OF PRINCE GEORGES COUNTY, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:12-cv-00306-DKC)
Submitted: July 1, 2013 Decided: July 11, 2013
Before DUNCAN, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin M. Plessner, LAW OFFICE OF KEVIN M. PLESSNER, Linthicum,
Maryland, for Appellant. John S. Vander Woude, Eric M.
Rigatuso, ECCLESTON & WOLF, P.C., Hanover, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adesina A. Mercer appeals the district court’s grant of
summary judgment to her former employer, The Arc of Prince
George’s County, Inc., (hereinafter “The Arc”), on her claims
for interference and retaliation, in violation of The Family and
Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq.
For the reasons set forth below, we affirm.
I.
The Arc is a private non-profit organization in Maryland
that provides programs and services to individuals with
developmental disabilities. The Arc employed Mercer as a full-
time Finance and Benefits Coordinator in July 2004, a position
she held until The Arc terminated her employment in March 2011.
Mercer’s job responsibilities included “applying for and
processing initial applications for benefits for [The Arc’s
clients] under the Food Stamp Program and Social Security,” as
well as “apply[ing] for and process[ing] renewals and
redeterminations for benefits under these programs.” (J.A. 15-
16.)
In May 2007, The Arc placed Mercer on conditional
employment status due to poor work performance and time
management. It returned her to regular status the following
month.
2
While Mercer was on medical leave in the spring of 2009,
Mercer’s co-workers performed her responsibilities and
discovered that many of The Arc’s food-stamp-eligible clients
were no longer receiving benefits. When Mercer returned to
work, she was instructed to ensure that the necessary paperwork
was submitted to renew those clients’ benefits.
In October 2010, The Arc performed Mercer’s annual review.
She received marks indicating “satisfactory” performance – twos
on a four-point scale – on thirteen of the fourteen categories,
and “above average” (a 3) on one category. (J.A. 35-36.) In
November and December 2010, The Arc again learned that some
food-stamp-eligible clients were no longer receiving those
benefits. Mercer was given a list of each of those clients and
was instructed to pursue reinstatement of those benefits.
Mercer describes this correspondence as “routine communications
that are not reprimands” due to clients’ benefits frequently
lapsing for brief periods while the requisite documentation was
being compiled. (J.A. 33.)
In January 2011, Mercer was involved in an automobile
accident that left her severely injured and unable to work. She
took FMLA leave from January 31 until February 22. While Mercer
was on leave, Mercer’s co-workers performed her job
responsibilities. In the process of doing so, they discovered
and told supervisors at The Arc that many more eligible clients
3
were no longer receiving benefits due to Mercer’s failure to
submit renewal or redetermination requests over an extended
period of time prior to her taking FMLA leave.
When Mercer returned to work on February 22, she was
immediately placed on administrative leave “due to
unsatisfactory job performance and incomplete paperwork” while
The Arc performed further investigation into the problem. (J.A.
28.) At the end of the five-day administrative leave period,
Mercer took additional FMLA leave to March 14.
During the course of The Arc’s investigation, it determined
that Mercer “had grossly deviated from her job’s requirements by
failing to obtain and maintain Food Stamp benefits for 99 of the
160 [eligible clients of The Arc].” (J.A. 17.) On March 23,
2011, The Arc notified Mercer by letter that it was terminating
her employment “due to unsatisfactory job performance” and that
she was “considered not in good standing and [was] ineligible
for rehire.” 1 (J.A. 31.)
Mercer filed a complaint in the United States District
Court for the District of Maryland alleging that the termination
1
Mercer contends she received this letter while still on
FMLA leave. The record only indicates that she requested FMLA
leave through March 14. It is not clear whether she was still
on leave at this time or not, but for purposes of our review on
summary judgment, we will assume she was still on FMLA leave at
the time of her termination of employment.
4
of her employment constituted unlawful interference with and
retaliation against the exercise of her rights under the FMLA. 2
She sought, inter alia, declaratory and injunctive relief,
including reinstatement and damages for back pay and lost
benefits.
The Arc moved to dismiss for failure to state a claim, or,
in the alternative, for summary judgment. The record before the
court included Mercer’s job description from when she was hired
in 2004, several documents relating to job performance including
Mercer’s October 2010 performance review, documents Mercer
submitted for purposes of taking FMLA leave, the February 2011
letter placing Mercer on administrative leave, and the March
2011 letter terminating Mercer’s employment. Each party also
submitted one affidavit. The Arc’s Human Resources Director,
Audrey Weaver, described Mercer’s employment with The Arc, her
FMLA leave, The Arc’s discovery of “unopened and unprocessed
redeterminations discovered in [Mercer’s] office,” the decision
to place her on administrative leave pending an investigation,
the conclusions The Arc reached as a result of that
investigation, and the decision to terminate Mercer’s
employment. (J.A. 15-18.) Mercer’s affidavit described her
2
The complaint also alleged retaliatory discharge in
violation of state public policy, but Mercer voluntarily
dismissed that claim.
5
taking FMLA leave, stated that she had “always received positive
performance evaluations,” denied that she failed to perform her
job adequately, explained why she was not responsible for
“routine . . . lapse[s] in [clients] receiving Food Stamp
benefits,” and stated that she had not been told about the
specific reasons why she was placed on administrative leave and
then fired until after the decisions had been made. (J.A. 32-
34.)
The district court granted The Arc’s motion for summary
judgment on both FMLA claims. The court concluded that the
undisputed evidence showed that Mercer was entitled to take FMLA
leave and also that she “failed to perform her duties
satisfactorily before she took that leave.” (J.A. 47.) Thus,
because Mercer would not have been entitled to keep her job even
had she not taken FMLA leave, she could not show that The Arc
interfered with her FMLA rights. Turning to Mercer’s
retaliation claim, the district court concluded that Mercer
failed to establish that The Arc’s proffered explanation for her
termination of employment was pretext for FMLA retaliation.
Mercer noted a timely appeal and we have jurisdiction under
28 U.S.C. § 1291.
6
II.
We review the district court’s grant of summary judgment de
novo. Summary judgment is appropriate if, viewing the facts in
the light most favorable to the non-moving party, “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. Pro.
56(a); Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en
banc). 3 Accordingly, we view “all facts and reasonable
inferences in the light most favorable to” Mercer, Purnell, 652
F.3d at 531, in order to determine “whether a fair-minded jury
could return a verdict for the plaintiff on the evidence
presented. The mere existence of a scintilla of evidence in
3
Throughout her opening brief, Mercer challenges the
district court’s judgment by referring to legal principles
applicable to a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). While The Arc moved for both dismissal
under Rule 12(b)(6) and for summary judgment, the district court
ruled on and decided this case solely on The Arc’s motion for
summary judgment. Accordingly, the principles applicable to
Rule 12(b)(6) motions, including the “plausibility” of Mercer’s
claims applying the analysis of Ashcroft v. Iqbal, 556 U.S. 662(2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), are
irrelevant to determining whether the district court
appropriately granted The Arc summary judgment. Similarly, we
apply the standards applicable to summary judgment and rely not
on the allegations in the complaint but on the materials in the
record, viewed in the light most favorable to Mercer. See Fed.
R. Civ. Pro. 56(c); Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992) (discussing difference between motion to dismiss
analysis and summary judgment analysis); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-55 (1986) (discussing summary
judgment analysis).
7
support of [Mercer’s] position will be insufficient; there must
be evidence on which the jury could reasonably find for [her].”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III.
Mercer raises three central arguments in this appeal.
First, that the district court erred in dismissing her
interference claim because a genuine issue of material fact
exists as to whether she was entitled to reinstatement upon her
return from FMLA leave. Second, that the district court erred
in dismissing her retaliation claim because a genuine issue of
material fact exists with respect to whether The Arc’s proffered
explanation for its decision was pretext for terminating her
employment due to taking FMLA leave. And, third, that the
district court erred in dismissing Mercer’s complaint prior to
affording her the opportunity to conduct discovery. We address
each argument in turn.
A.
The FMLA allows certain employees to take “12 work weeks of
leave” during a twelve-month period for a qualifying health
condition that makes the employee “unable to perform the
functions of” her job. 29 U.S.C. § 2612(a)(1)(D). It is
“unlawful for any employer to interfere with, restrain, or deny
8
the exercise of or the attempt to exercise, any right provided
under” the FMLA, 29 U.S.C. § 2615, and an employee has a cause
of action against her employer under § 2617 when she can prove
the employer interfered with her exercise of FMLA rights and
caused prejudice thereby. Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 89 (2002). However, “the FMLA does not
require an employee to be restored to his prior job after FMLA
leave if he would have been discharged had he not taken leave.”
Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 547 (4th
Cir. 2006) (citing 29 C.F.R. § 825.216(a) (“An employee has no
greater right to reinstatement . . . than if the employee had
been continuously employed during the FMLA leave period.”)).
Mercer contends the district court erred in dismissing her
FMLA interference claim because a genuine issue of material fact
exists as to whether she would have been terminated from her
employment if she had not taken FMLA leave. In support of her
argument, Mercer points to her favorable performance reviews up
to and including in October 2010; she questions The Arc’s
affiant Audrey Weaver’s knowledge of her employment history and
job performance; she describes her job responsibilities and
asserts that she adequately performed her work; she explains why
occasional lapses in clients’ benefits were “routine,” and not
attributable to poor performance on her part; and she contends
9
she did not learn the specific grounds for The Arc’s decision
until well after she was notified her employment was terminated.
Mercer’s arguments lack support in the record. As noted,
being on FMLA leave does not provide an employee any greater
rights than he or she would have had without taking leave, and
an employee’s right to reinstatement is not absolute. Id. at
549; 29 C.F.R. § 825.216(a). An employer has discretion to
discipline or terminate the employment of an at-will employee
for poor performance regardless of whether the employer’s reason
for terminating the employment was discovered while the employee
is taking FMLA leave. See e.g., Yashenko, 446 F.3d at 549-50(holding that an employer does not interfere with the exercise
of FMLA rights where it reorganizes during an employee’s leave
and eliminates that employee’s position as a result of
legitimate non-FMLA leave concerns); Laing v. Fed. Express
Corp., 703 F.3d 713, 723-24 (4th Cir. 2013) (“[T]he FMLA does
not preclude an employer from placing an employee on an
investigatory suspension upon her return from [FMLA] leave if
it would have taken the same action had the employee never taken
leave in the first place.”); Kariotis v. Navistar Int’l Transp.
Corp., 131 F.3d 672, 680-81 (7th Cir. 1997) (holding that an
employer does not interfere with the exercise of FMLA rights
where it terminates an employee’s employment based on the
employer’s honest belief that the employee is not taking FMLA
10
for an approved purpose); see also Throneberry v. McGehee Desha
Cnty. Hosp., 403 F.3d 972, 977 (8th Cir. 2005) (“The FMLA simply
does not force an employer to retain an employee on FMLA leave
when the employer would not have retained the employee had the
employee not been on FMLA leave.”). While Mercer’s poor
performance may not have been known to The Arc absent her FMLA
leave period, we agree with the Seventh Circuit that “[t]he fact
that the leave permitted the employer to discover the problems
[with an employee’s performance] can not logically be a bar to
the employer’s ability to fire the deficient employee.” Kohls
v. Beverly Enters. Wis., Inc., 259 F.3d 799, 806 (7th Cir.
2001). 4 Thus, the fact that Mercer had previously received
satisfactory performance reviews does not negate The Arc’s
ability to terminate her employment upon the discovery of
previously unknown poor performance. This is so even if The Arc
discovered the basis for terminating Mercer’s employment while
she was on FMLA leave.
None of Mercer’s contentions create a genuine issue of
material fact as to the reason why The Arc terminated her
employment. The Arc has provided evidence that it would have
4
We have not yet held which party bears the burden of proof
in an FMLA interference claim; however, once again we need not
resolve that issue here because, regardless of who bears the
burden, Mercer’s claim cannot succeed. See Yashenko, 446 F.3d
at 549 (discussing circuit split on this issue).
11
terminated Mercer for poor performance regardless of her FMLA
leave, and Mercer has not presented evidence that would allow a
jury to conclude otherwise. See Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 888 (1990) (“In ruling upon a Rule 56 motion, a
District Court must resolve any factual issues of controversy in
favor of the non-moving party only in the sense that, where the
facts specifically averred by that party contradict facts
specifically averred by the movant, the motion must be denied.
That is a world apart from assuming that general averments
embrace the specific facts needed to sustain the complaint.
[Rule 56] provides that judgment shall be entered against the
nonmoving party unless affidavits or other evidence set forth
specific facts showing that there is a genuine issue for trial.
The object of [Rule 56] is not to replace conclusory allegations
of the complaint or answer with conclusory allegations of an
affidavit.”) (internal quotation marks omitted). Mercer’s
primary basis for connecting the termination of her employment
to her FMLA leave is its timing. While timing is a relevant
factor, it will rarely be independently sufficient to create a
triable issue of fact. See Simpson v. Office of the Chief Judge
of the Cir. Ct., 559 F.3d 706, 713 (7th Cir. 2009) (“Temporal
proximity between an adverse employment action and a plaintiff’s
exercise of her statutory rights will rarely be sufficient in
and of itself to create a triable issue.”). Mercer also
12
speculates that The Arc’s proffered reason is not the real
reason it terminated her employment, offering her own view that
her performance was adequate and explaining that she was not
responsible for any lapses in clients’ benefits that occurred.
However, Mercer’s subjective view of her job performance is not
sufficient to survive summary judgment. As we have often held,
a
nonmoving party cannot create a genuine issue of
material fact through mere speculation or the building
of one inference upon another. Rather, a nonmoving
party must produce some evidence (more than a
“scintilla”) upon which a jury could properly find a
verdict for the party producing it, upon whom the onus
of proof is imposed.
Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008)
(internal citation and quotation marks omitted); see also
Dockins v. Benchmark Commc’ns, 176 F.3d 745, 749 (4th Cir. 1999)
(“[A] plaintiff’s own assertions of discrimination in and of
themselves are insufficient to counter substantial evidence of
legitimate nondiscriminatory reasons for a discharge.”)
(internal quotation marks omitted). The district court thus did
not err in granting The Arc summary judgment on Mercer’s FMLA
interference claim.
B.
Turning to Mercer’s FMLA retaliation claim, we have
previously recognized that because such claims are analogous to
13
Title VII retaliation claims, they can be analyzed under the
burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 800-06 (1973). Nichols v. Ashland Hosp. Corp.,
251 F.3d 496, 502 (4th Cir. 1998). Mercer bears the burden of
making a prima facie showing “that [s]he engaged in protected
activity, that [Mercer] took adverse action against [her], and
that the adverse action was causally connected to [her]
protected activity.” Cline v. Wal-Mart Stores, Inc., 144 F.3d
294, 301 (4th Cir. 1998). If she makes this prima facie
showing, then The Arc bears the burden of offering a non-
discriminatory explanation for its decision to terminate
Mercer’s employment, and thereafter the burden would return to
Mercer to show that The Arc’s “proffered explanation is pretext
for FMLA retaliation.” Nichols, 251 F.3d at 502.
Here, Mercer made a prima facie showing because she took
FMLA leave (a protected activity), The Arc terminated her
employment (the adverse action), and – given the less onerous
burden of making the prima facie case – the closeness in time
between the two events demonstrates the requisite causal
connection between the two events. See Yashenko, 447 F.3d at
551 (“While evidence as to closeness in time ‘far from
conclusively establishes the requisite causal connection, it
certainly satisfies the less onerous burden of making a prima
facie case of causality.’”).
14
The district court held that The Arc “presented undisputed
evidence that it fired [Mercer] for her unsatisfactory work
performance,” and that Mercer had “not satisfied her burden to
establish that [The Arc’s] proffered explanation is pretext for
FMLA retaliation.” (J.A. 48 (internal quotation marks
omitted).) Mercer challenges that conclusion on several
grounds.
At the outset, Mercer contends that the district court
erred by “not consider[ing] or even mention[ing] any of” her
evidence contradicting The Arc’s allegations as to her poor
performance. (Appellant’s Opening Br. 38.) On this factual
point Mercer is simply incorrect. The district court’s opinion
delineates the proper standard of review for summary judgment,
recites the largely uncontested facts in Mercer’s favor, and it
expressly quotes and cites Mercer’s affidavit as part of its
analysis. (E.g., J.A. 43, 45.) There is no basis on this
record to believe the district court ignored Mercer’s evidence
in deciding the case.
Next, Mercer contends that the district court erred in
concluding she had not demonstrated pretext because she
“presented evidence that raised beyond a level of speculation
the likelihood that [The Arc’s] stated reasons for terminating
[Mercer] was a pretext for FMLA . . . retaliation.”
(Appellant’s Opening Br. 53.) As support, she points to the
15
timing of her leave and the termination of her employment, her
prior satisfactory performance reviews, purported shifts in The
Arc’s explanation for why it was terminating her employment, and
her own assessment that she adequately performed her job and was
not responsible for any lapses in clients’ benefits.
Mercer has failed to show the district court erred in
holding that she had not demonstrated pretext. As discussed in
the context of Mercer’s interference claim, while timing is a
factor in assessing whether an employer’s explanation is
pretextual, it is not usually independently sufficient to create
a triable issue of fact. See Simpson, 559 F.3d at 713.
Similarly, the fact that Mercer received satisfactory
performance reviews prior to her FMLA leave is not sufficient to
create a genuine issue of material fact in this case. The Arc
points to evidence it learned after Mercer’s most recent
performance review as the performance-related reason for its
decision to terminate her employment. The Arc’s assessment of
her performance prior to it learning this new information does
not call into question the legitimacy of its proffered
explanation.
Nor can Mercer demonstrate the inference of pretext arising
from “shifting justifications” given for The Arc’s decision to
terminate her employment. This Court has recognized that an
employer’s giving different justifications at different times
16
was probative of pretext, particularly where those reasons were
“arguably inconsistent explanations” “developed over time to
counter the evidence suggesting discrimination.” E.E.O.C. v.
Sears Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001). But the
record does not support such an inference in this case. While
the words used have varied and the examples given have become
more specific than Mercer’s initial temporary administrative
leave letter, the reason The Arc has provided from that point to
her termination of employment letter through litigation has been
consistent. On February 22, 2011, The Arc placed Mercer on
administrative leave “due to unsatisfactory job performance and
incomplete paperwork.” (J.A. 28.) The March 23, 2011 letter
terminating Mercer’s employment cited “unsatisfactory job
performance.” (J.A. 31.) And The Arc’s human resources
director provided an affidavit accompanying the motion for
summary judgment alleging in greater detail the basis for its
investigation into Mercer’s job performance and its conclusion
that she “had grossly deviated from her job’s requirements by
failing to obtain and maintain Food Stamp benefits for 99 of the
160 [clients] in [The Arc’s] program.” (J.A. 17.) This record
does not support Mercer’s contention that an inference of
pretext can be drawn in this case.
Lastly, Mercer points to her own assessment of her job
performance, what The Arc’s legitimate expectations of her
17
should have been, and the nature of renewing client benefits as
reasons why the Court should view The Arc’s proffered rationale
for its decision to terminate her employment as pretext. In
reviewing whether an employer’s decision is unlawful, the
Court’s task is not “to decide whether the reason [for
termination of employment] was wise, fair, or even correct,
ultimately, so long as it truly was the reason for [the
decision].” Laing, 703 F.3d at 722 (internal quotation marks
omitted). On this point, Mercer’s affidavit does no more than
demonstrate “the unexceptional fact that she disagrees with the
outcome of [The Arc’s] investigation.” Id. It does not prove
that The Arc’s investigation or proffered reason for deciding to
terminate her employment was not the real reason for its action.
See id. Consequently, Mercer’s evidence does not create a
genuine issue of material fact as to whether The Arc’s proffered
explanation for terminating her employment was merely pretext
for retaliation.
C.
The final issue Mercer raises on appeal is that the
district court erred in dismissing her claims before she had the
opportunity to conduct discovery. She asserts that because she
“alleged sufficient facts to support her claims [she] should be
allowed the opportunity to conduct discovery in order to test
18
the veracity of [the witness’s] statements and to investigate
all of the facts of this case.” (Appellant’s Opening Br. 55.)
Mercer is correct that summary judgment is generally
“appropriate only after adequate time for discovery.” Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 961 (4th
Cir. 1996). We have previously indicated that we “place great
weight on the [Federal Rule of Civil Procedure] Rule [56(d)]
affidavit, believing that a party may not simply assert in its
brief that discovery was necessary and thereby overturn summary
judgment when it failed to comply with the requirements of Rule
[56(d)] to set out reasons for the need for discovery in an
affidavit.” Id. at 961 (internal quotations marks omitted). 5
The district court record shows that Mercer failed to file an
affidavit pursuant to Federal Rule of Civil Procedure 56(d)
providing specific reasons why discovery was necessary in order
to adequately oppose The Arc’s motion for summary judgment. And
while Mercer’s memorandum opposing summary judgment devoted the
equivalent of one page asserting that more discovery was needed
5
Former Federal Rule of Civil Procedure 56(f) is now
located at Federal Rule of Civil Procedure 56(d). The provision
states that “[i]f a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential
to justify its opposition, the court may: (1) defer considering
the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order.”
19
prior to the Court deciding the case, it failed to identify any
information that she believed would be adduced at discovery.
Far from providing any “specific reasons” why discovery was
necessary, the memorandum simply sought to “investigate all of
the facts of this case” before the district court ruled on The
Arc’s motions. (Dist. Ct. Docket No. 4, p. 20.) As in Evans,
this minimal “effort is insufficient to compel denial of [The
Arc’s] summary judgment motion.” 80 F.3d at 961. The district
court thus did not err in ruling on the summary judgment motion
prior to discovery.
IV.
For the aforementioned reasons, we affirm the judgment of
the district court granting summary judgment to The Arc. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
20