Kristina Vonderhaar v. Amy Waymire ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0021n.06
No. 19-5332
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jan 15, 2020
DEBORAH S. HUNT, Clerk
KRISTINA VONDERHAAR, )
)
Plaintiff–Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
AMY WAYMIRE and AT&T MOBILITY )
SERVICES, LLC, )
) OPINION
Defendant–Appellees. )
)
BEFORE: MOORE, CLAY, and SUTTON, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Kristina Vonderhaar accuses her erstwhile
employer, AT&T Mobility Services, LLC (“AT&T”), of violating the Family and Medical Leave
Act (“FMLA”) and Kentucky wrongful-discharge law. Most significantly, Vonderhaar alleges
that, after she used a significant amount of her medical leave, and then complained to AT&T’s
“ethics hotline” about “fraudulent” activity occurring at the AT&T store where she worked, her
supervisors retaliated against her by making her working conditions so miserable that she had no
choice but to resign. The district court, however, granted AT&T summary judgment, finding that
Vonderhaar’s claims lacked evidentiary support or were otherwise improperly asserted.
Vonderhaar now appeals that judgment. We AFFIRM.
No. 19-5332, Vonderhaar v. Waymire et al.
I. BACKGROUND1
A. Factual Background
1. September 15, 2013 to April 16, 2015: Vonderhaar Uses Her Medical Leave and
Experiences Other Attendance Issues
On September 15, 2013, Vonderhaar began working as a “retail sales consultant” at an
AT&T store in Maysville, Kentucky. Nothing of note occurred during Vonderhaar’s first year of
employment. In November 2014, however, Vonderhaar underwent a partial hysterectomy surgery,
followed by a few related surgeries in the weeks thereafter. As a result of these surgeries,
Vonderhaar requested, and AT&T approved, an FMLA leave of absence lasting from November
24, 2014 to February 2, 2015. R.36-6 (Villarreal Dec. ¶ 13) (Page ID #358). Unfortunately, shortly
after returning from this leave of absence, Vonderhaar experienced heart palpitations. As a result,
Vonderhaar requested, and AT&T again approved, a series of “intermittent” FMLA absences,
ranging from February 19, 2015 to April 16, 2015. Id. ¶ 15.
Importantly, though, in addition to taking this (approved) time off for medical leave,
Vonderhaar missed at least the following six days of work, without requesting FMLA leave:
(1) November 15, 2014; (2) November 21, 2014; (3) February 4, 2015; (4) February 11, 2015;
(5) March 21, 2015; and (6) April 2, 2015. See R.38-10 (Vonderhaar Attendance Records) (Page
ID #687–90); R.36-2 (Vonderhaar FMLA Request Forms) (Page ID #285–301). As these absences
occurred, and in accordance with AT&T’s progressive disciplinary policy, Vonderhaar received a
series of letters warning her that, if she continued to accrue unexcused absences, she “could” be
1
Although Vonderhaar has technically brought suit against AT&T and Amy Waymire—one of her former
supervisors—for ease of reference we refer to defendants as simply “AT&T” throughout this opinion.
2
No. 19-5332, Vonderhaar v. Waymire et al.
subject to “further discipline, up to and including dismissal.” R.38-6 (Feb. 16, 2015 Counseling
Notice) (Page ID #546); accord, e.g., R.38-9 (Mar. 6, 2015 Written Warning) (Page ID #682);
R.36-4 (Apr. 16, 2015 Final Written Warning) (Page ID #343–44).
The most prominent of these letters was the April 16, 2015 “final written warning.” This
letter listed the six unexcused absences noted above and essentially said that Vonderhaar could be
fired if she missed one more day of work without excuse (because company policy authorized
termination after seven unexcused absences). R.36-4 (Apr. 16, 2015 Final Written Warning) (Page
ID #343–44); see also R.36-5 (Hoskins Dec., Ex. 1) (Attendance Policy) (Page ID #354). There
is no record evidence suggesting this final warning was factually inaccurate, or was applied in a
manner inconsistent with AT&T policy.2
2. February 2, 2015 to April 16, 2015: During the Same Time Period, Vonderhaar
Sees Her Co-Workers Committing Allegedly Fraudulent Acts, and Then Reports
(some of) that Misconduct to Management
Attendance, however, was not the only issue on Vonderhaar’s mind after she returned from
her leave of absence. Rather, as Vonderhaar tells it, during this same time period—early to mid-
2
To be sure, as Vonderhaar emphasizes in her brief, the March 6 “written warning” listed “February 19,
2015” as an unexcused absence when, in fact, that absence was approved for FMLA leave. As AT&T correctly notes
in response, however, the only reason February 19 was listed as “unexcused” in the March 6 letter was because
Vonderhaar did not submit her medical certification for that date until March 6, and AT&T did not approve that
certification until March 9. R.36-2 (Vonderhaar FMLA Request Forms) (Page ID #286); R.36-6 (Villarreal Dec. ¶ 14)
(Page ID #358). After AT&T received Vonderhaar’s medical certification, though, the February 19 absence “was
changed to an approved FMLA absence.” R.43-1 (Villarreal Reply Dec. ¶ 10) (Page ID #851); see also R.38-10
(Vonderhaar Attendance Records) (Page ID #690) (reflecting this change). It is accordingly not mentioned in the
April 16 final warning.
Moreover, although Vonderhaar intimates in her brief that two other dates included in the final written
warning should have been covered by the FMLA—February 4 and February 11—she points to no evidence in support
of that contention.
3
No. 19-5332, Vonderhaar v. Waymire et al.
2015—she repeatedly caught her colleagues engaging in “fraudulent behavior.” At her deposition,
she emphasized the following three incidents.
The Shane Hampton “Temporary Phone Number” Incident: Vonderhaar first testified that,
sometime in February 2015, one of her colleagues, Shane Hampton, began unnecessarily adding
temporary phone numbers to customer accounts. More specifically, Vonderhaar alleged, Hampton
gave customers “temporary numbers” when they transferred an existing phone line to AT&T,
instead of the new permanent number he should have been giving them. R.38-5 (Vonderhaar Dep.
at 62–63) (Page ID #478). As a result, to secure their permanent number, customers were forced
to interact with AT&T a second time, which then artificially boosted the sales commissions of
employees like Hampton (because the employee could count both the temporary number and the
permanent number as a sale). Although Vonderhaar acknowledges that nobody at AT&T
requested that she engage in this “temporary phone number” tactic, id. at 67–68 (Page ID #479),
because Vonderhaar (correctly) believed the tactic violated company policy, she raised the issue
with one of her store managers, Hannah Eaves. Eaves then “sat [the store employees] down . . .
and said, you know, no more temporary phone numbers.” Id. at 67 (Page ID #479). The record
does not indicate whether employees continued to use the “temporary phone number” tactic after
Eaves’s sit-down.
The Insurance Incident: Vonderhaar also testified that her colleagues would “add[]
insurance to [customer] accounts” without informing the customer they were doing so. Id. at 80–
81 (Page ID #482). Although Vonderhaar was not “pushed” to take this action either, she (with
good reason) thought her colleagues’ actions to be unethical. Id. at 83–84 (Page ID #483). Unlike
the temporary phone number incident, though, Vonderhaar did not report her specific concerns
4
No. 19-5332, Vonderhaar v. Waymire et al.
about this issue to management. See id. at 83 (Page ID #483) (“Q: Okay. Did you tell [your
managers] something specific about this insurance thing being added to the customer accounts?
A: I just told them that I knew that fraud was still being committed on the accounts. They never
asked me to go into detail.”).
The Jamie Davis “Promotional Tablet” Incident: Finally, Vonderhaar testified, on April
7, 2015, she learned that another one of her colleagues, Jamie Davis, had “sold” a free promotional
tablet to a customer to whom Vonderhaar had already sold such a tablet. Id. at 69–73 (Page ID
#479–80). This “double sale” occurred because an unknown person at AT&T cancelled the
customer’s original tablet order (the one made by Vonderhaar), which then prompted the customer
to call the AT&T store to inquire into her tablet’s status.3 When Davis answered the confused
customer’s call, she decided the best course of action was to sell a “second” promotional tablet to
the customer over the phone, with a tablet already in stock. When the customer visited the store
the next day to pick up her tablet, however, Vonderhaar realized that Davis had signed a new two-
year tablet service contract on behalf of the customer (because the customer had spoken to Davis
over the phone), in violation of the company’s policy that these kinds of contracts need to be
consummated in person. See R.38-13 (AT&T Davis Investigation) (Page ID #719–34). Although
Vonderhaar again concedes that nobody at AT&T requested that she sign contracts on behalf of
customers, R.38-5 (Vonderhaar Dep. at 79) (Page ID #482), Vonderhaar nonetheless felt that her
colleague’s behavior was so fraudulent that it warranted not only a report to Eaves—the store
manager—but also an anonymous complaint to AT&T “ethics hotline,” which Vonderhaar called
3
Because the tablet was not in stock at the time Vonderhaar made the original sale, Vonderhaar had arranged
for the product to be shipped to the customer’s home address. This explains why the customer was calling to inquire
about the status of the tablet.
5
No. 19-5332, Vonderhaar v. Waymire et al.
the next day, April 8, 2015. R.38-5 (Vonderhaar Dep. at 73–78) (Page ID #480–82); R.38-13
(AT&T Davis Investigation) (Page ID #725).4
3. April 17, 2015 to May 28, 2015: After Meeting with Her Supervisors, Vonderhaar
Allegedly Is Forced to Take a Month-Long FMLA Leave of Absence
One day after the final attendance warning, and two weeks after the Jamie Davis hotline
call, on April 17, 2015, AT&T’s regional retail manager, Amy Waymire, and Vonderhaar’s store
managers, Fred Hoskins and Hannah Eaves, met with Vonderhaar.5
According to Waymire, the purpose of the meeting was not to discipline Vonderhaar, but,
rather, to see what the company could do to help its struggling employee. R.38-14 (Waymire Dep.
at 5–6, 136) (Page ID #736, 768). More specifically, Waymire was concerned about Vonderhaar’s
string of unexcused absences, and about two mid-March incidents where Vonderhaar used
profanity with her colleagues, all of which Waymire described as “not typical of what we had seen
from [Vonderhaar] before.” Id. at 5–8 (Page ID #736). As Waymire remembers it, Vonderhaar
began the meeting in a “defensive” posture. However, Waymire insists, as the meeting unfolded,
Vonderhaar affirmatively opened up about “the specifics of things on an outside basis that weren’t
involving the store that were affecting her.” Id. at 135–36 (Page ID #768). Most notably,
4
AT&T conducted an investigation and ultimately determined that Davis did violate company policy when
she consummated this transaction over the phone. See R.38-13 (AT&T Davis Investigation) (Page ID #721, 728–29).
Because AT&T did not reach this determination until July 9, 2015, a month after Vonderhaar left the company,
however, we do not focus on it here.
5
As a point of context, it is unclear if Waymire knew, at the time of this meeting, that Vonderhaar was the
anonymous “Davis complainant.” On the one hand, the Davis investigation report indicates that Hoskins discussed
the complaint with Waymire sometime on or before April 21, 2015, albeit without (in theory) knowing who the
anonymous complainant was. R.38-13 (AT&T Davis Investigation) (Page ID #726). On the other hand, Waymire
unequivocally testified at her deposition that she did not know Vonderhaar was the anonymous caller until mid-way
through this litigation, R.38-14 (Waymire Dep. at 89) (Page ID #757), a statement Vonderhaar has not seriously
attempted to rebut, see, e.g., R.38-5 (Vonderhaar Dep. at 125) (Page ID #493) (acknowledging that she has “no
personal knowledge to know if Ms. Waymire knew about the call or not”). Because this point is not essential to our
ultimate resolution, though, we need not resolve it here.
6
No. 19-5332, Vonderhaar v. Waymire et al.
Vonderhaar purportedly explained that, since undergoing the November surgery, she had not been
“feeling like she [was] truly healed to be back at work.” Id. This revelation, in turn, prompted
Waymire to encourage Vonderhaar to talk to her doctor about using more FMLA time. Waymire
also purportedly informed Vonderhaar that short-term disability payments could cover most of
Vonderhaar’s paycheck while she was out. Id. at 136–38 (Page ID #768–69). After the meeting
concluded, Waymire recalled, Vonderhaar simply “went and contacted her doctor and worked with
[HR] and took some [FMLA] time off.” Id. at 139 (Page ID #769).
Vonderhaar tells a dramatically different story. In Vonderhaar’s recollection, Waymire
began the meeting by telling Vonderhaar she had to take a leave of absence, whether unpaid or
through a combination of FMLA and short-term disability. R.38-5 (Vonderhaar Dep. at 100–01)
(Page ID #487). If Vonderhaar did not do this, Hoskins allegedly added, she would lose her job.
Id. at 101, 106 (Page ID #487, 489). Vonderhaar also recalls “being told” that she was “resentful”
toward the company, and was “too emotional or too hormonal to perform [her] job.” Id. at 102
(Page ID #488). Vonderhaar took these statements to mean she should stop reporting “fraud,” and
should stop using so much FMLA time (although she acknowledges no one used those exact words
at the meeting). Id. at 101, 137 (Page ID #487, 496).
Whatever actually happened on April 17, there is no dispute that, after the meeting,
Vonderhaar requested, and AT&T approved, an FMLA leave of absence to last approximately one
month, from April 21, 2015 to May 27, 2015. R.36-6 (Villarreal Dec. ¶ 17) (Page ID #358).
According to AT&T’s attendance records, short-term disability benefits covered Vonderhaar’s
entire salary for the first half of her absence, and then approximately 60% of her salary thereafter.
R.38-10 (Vonderhaar Attendance Records) (Page ID #690–91).
7
No. 19-5332, Vonderhaar v. Waymire et al.
Frustrated by this turn of events, on May 21, 2015, near the end of her leave period,
Vonderhaar decided to file an internal complaint against Waymire. In it, Vonderhaar claimed that
Waymire “forced her to take a leave of absence . . . in retaliation for [her] complaining about fraud
being perpetrated on customer accounts.” R.36-8 (Woods Dec. ¶ 4) (Page ID #400). An AT&T
human resources investigator interviewed Vonderhaar about these allegations a few days later.
Id.6
4. May 28, 2015 to June 10, 2015: Two Weeks After Returning from Her Leave of
Absence, Vonderhaar Resigns
Vonderhaar returned from her leave of absence on May 28, 2015. At that point in time,
AT&T placed Vonderhaar back at her standard salary and position, with no reduction in job
responsibilities. See R.38-5 (Vonderhaar Dep. at 119) (Page ID #492) (Q: Okay. And did you
come back to work to your same position? A: Yes, ma’am. Q: And your same salary, everything
is the same? A: Yes, ma’am.”); id. at 149 (Page ID #499) (same). What’s more, about a week
after her return, Vonderhaar requested, and AT&T approved, two additional days of FMLA leave,
just as AT&T had done in the months leading up to her leave of absence. See R.36-6 (Villarreal
Dec. ¶¶ 20–21) (Page ID #359) (discussing Vonderhaar’s May 30 and June 5, 2015 absences).
Nonetheless, the following events quickly convinced Vonderhaar that “the writing [was]
on the wall,” and that she had no choice but to resign. R.38-5 (Vonderhaar Dep. at 137) (Page ID
#496).
6
The investigator interviewed Eaves, Hoskins, and Waymire, too, before ultimately deeming Vonderhaar’s
allegations unsubstantiated. R.36-8 (Woods Dec. ¶¶ 4–5) (Page ID #400). Again, though, because this determination
occurred long after Vonderhaar left AT&T (on July 9, 2015, to be exact), we do not focus on it here.
8
No. 19-5332, Vonderhaar v. Waymire et al.
First, Hoskins did not offer Vonderhaar any “coaching sessions” to explain what she
“should be doing numbers-wise.” Id. at 141 (Page ID #497). Without these sessions, Vonderhaar
claimed, she could not make her sales numbers. Id. at 141, 149 (Page ID #497, 499). But cf. id.
at 144 (Page ID #498) (acknowledging that she never asked for coaching during this time period
either).
Second, the two times Waymire visited Vonderhaar’s store during the two-week span
between Vonderhaar’s return and her resignation, Waymire never said “hi” or “bye,” and “would
not even make eye contact with [Vonderhaar].” Id. at 142 (Page ID #498).
Third, Hoskins did not respond when a “belligerent” male customer “verbally attacked”
Vonderhaar in “the middle of the sales floor,” which necessitated another colleague interceding on
Vonderhaar’s behalf. Id. at 139–41 (Page ID #497).
Consequently, on June 10, 2015, Vonderhaar resigned. Her resignation e-mail read as
follows:
Dear Fred [Hoskins],
It is with reluctance in my heart that I must inform you of my plans to resign my
position as Retail Sales Consultant. My last day will be Wednesday June 24th. The
past two years have truly been a blessing and it’s with a heavy heart that I must step
down. I feel as if I owe it to you and the company to be honest in regards to my
departure.
It’s obvious that certain individuals have been allowed to cross certain boundaries
that the rest of the staff and myself would never dare cross resulting in fraud to be
perpetrated on customer accounts with no repercussions for said actions. I went as
far as calling our Corporate Ethics Line and reporting the fraud yet as of yesterday
it’s still continuing to happen.[7] After my call to corporate I was asked to take a
7
The record does not indicate what “fraud” Vonderhaar believed was “still continuing to happen” at this point
in time.
9
No. 19-5332, Vonderhaar v. Waymire et al.
leave of absence which regrettably I did. Since my return I don’t feel welcome by
certain members of management and feel it is best if I step down.
I truly hope that things here can be resolved and the rest of the staff can begin to
feel that they work in an equal playing field. This is a great group of people whom
put forth their best efforts every day and have become lifelong friends of mine and
I wish them all the best as well as yourself.
Sincerely,
Kristina Vonderhaar
R.38-15 (Vonderhaar Resignation E-mail) (Page ID #801).
Notably, there is no evidence that, at any point in time, AT&T denied Vonderhaar FMLA
time when she requested it. See, e.g., R.38-5 (Vonderhaar Dep. at 52) (Page ID #475) (“Q: Okay.
What is your recollection in terms of your FMLA requests, were they approved or denied? A: As
far as I know they were approved, yes. Q: All of them were approved? A: Yes, as far as I know.”).
Indeed, at the time of her resignation, Vonderhaar still had at least three-and-a-half hours
remaining of FMLA time for the year. R.38-10 (Vonderhaar Attendance Records) (Page ID #693).
B. Procedural Background
1. The Complaint
Two years later, on June 7, 2017, Vonderhaar filed a complaint against AT&T and
Waymire in Kentucky state court, which AT&T timely removed to federal court. In her complaint,
Vonderhaar asserted five claims that are relevant here: (1) interference with her FMLA rights;
(2) retaliation for asserting her FMLA rights; (3) wrongful discharge under Kentucky law;
(4) intentional infliction of emotional distress under Kentucky law; and (5) negligent infliction of
emotional distress under Kentucky law.
10
No. 19-5332, Vonderhaar v. Waymire et al.
One aspect of Vonderhaar’s complaint bears emphasis. In describing her FMLA
interference claim, Vonderhaar used the following language:
Defendants denied Plaintiff FMLA benefits to which Plaintiff was entitled by
forcing Plaintiff to take FMLA leave [from April 21 to May 27, 2015] in retaliation
for her failure and/or refusal to violate the law, and for taking prior leave, thus
depleting Plaintiff’s FMLA entitlement.
R.1-1 (Compl. ¶ 26) (Page ID #12) (emphasis added). In other words, Vonderhaar accused AT&T
of interfering with her FMLA rights by “forcing [her] to take FMLA leave” when she did not want
to, not of interfering with her FMLA rights by denying her requests for leave, or by otherwise
impeding her ability to request leave, as is typical in most FMLA interference cases.
2. Summary Judgment
Following discovery, AT&T moved for summary judgment. In its motion, AT&T argued
(among other things) that Vonderhaar’s FMLA interference claim was meritless because there was
no evidence that Vonderhaar’s month-long leave of absence, even assuming it was “involuntary,”
“depleted” her FMLA entitlement. Without such a showing, AT&T observed, Vonderhaar’s
interference claim failed as a matter of law. See Wysong v. Dow Chem. Co., 503 F.3d 441, 449
(6th Cir. 2007) (holding that an “involuntary leave” interference claim “ripens only when and if
the employee seeks FMLA leave at a later date, and such leave is not available because the
[employer] wrongfully forced [the employee] to use FMLA leave in the past”).
In her opposition brief, Vonderhaar did not discuss the “involuntary leave” theory
emphasized in her complaint, or AT&T’s cited Sixth Circuit precedent. Rather, Vonderhaar
shifted gears and claimed that AT&T was ignoring a multitude of other, hitherto-unknown bases
11
No. 19-5332, Vonderhaar v. Waymire et al.
for her FMLA interference claim. Specifically, Vonderhaar asserted, the following nine actions
constituted “unlawful interference”:
• Punishing Vonderhaar for her February 19, 2015 FMLA absence;
• Threatening Vonderhaar with termination for her February 19, 2015 FMLA
absence;
• Placing Vonderhaar on formal discipline and an action plan for her February
19, 2015 absence;
• Refusing to grant Vonderhaar FMLA time for her February 4 and 11, 2015
absences;
• Putting Vonderhaar on formal discipline, an action plan, and a final written
warning for attendance on the basis of her February 4 and 11, 2015 absences;
• Stating that Vonderhaar was too emotional to do her job because of her
hysterectomy;
• Setting up a system for AT&T FMLA approval that conflicted with other
AT&T departments regarding attendance, leading to discipline for qualified
FMLA days;
• Refusing to provide Vonderhaar with coaching sessions, sales goals, and job
duties after she returned from her forced leave; and
• Constructively discharging Vonderhaar on June 10, 2015.
R.38 (Vonderhaar Summ. J. Opp. Br. at 16) (Page ID #420). Because AT&T failed to raise these
issues in its motion, Vonderhaar continued, AT&T had “waived all argument that these actions are
not interference.” Id.
In reply, AT&T accused Vonderhaar of changing her entire theory of the case in her
opposition brief (at least with respect to her interference claim), a litigation tactic that is generally
verboten. AT&T also argued that, even if the court considered Vonderhaar’s new FMLA
interference theories, the claims failed for want of evidentiary support.
Vonderhaar did not move to amend her complaint in response to this briefing.
On March 11, 2019, the district court issued a written order granting AT&T’s summary
judgment motion in full. See Vonderhaar v. AT&T Mobility Servs., LLC, No. 17-cv-114
12
No. 19-5332, Vonderhaar v. Waymire et al.
(WOB/CJS), 2019 WL 1120117 (E.D. Ky. Mar. 11, 2019).8 The district court thoroughly
discussed the facts and law surrounding Vonderhaar’s claims, and ultimately concluded that
AT&T was entitled to summary judgment on every count of Vonderhaar’s complaint. And, as for
Vonderhaar’s nine new FMLA interference theories, the district court found that they were based
on new allegations not found in the complaint, and were therefore improper. The district court
alternatively held that, even if the court considered Vonderhaar’s claims about the (allegedly)
denied February 2015 requests for FMLA leave, the claims were meritless because “there [was]
no medical certification, e-mail, or request form before the Court concerning these dates.” Id. at
*6.
Vonderhaar timely appealed.
II. DISCUSSION
We review de novo a district court’s grant of summary judgment. Donald v. Sybra, Inc.,
667 F.3d 757, 760 (6th Cir. 2012). Summary judgment is appropriate where “the movant shows
that 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. P. 56(a). Although “[i]n evaluating the evidence, we draw all
reasonable inferences in favor of [the non-movant]”—here, Vonderhaar—“[a] mere scintilla of
evidence in support of [Vonderhaar’s] position will be insufficient for her claim[s] to survive
summary judgment.” Donald, 667 F.3d at 760–61. “Rather, there must be enough evidence such
that the jury could reasonably find for her.” Id. at 761.
8
Technically, the district court issued its opinion and order on March 8, 2019, and then issued an amended
opinion on March 11. As best we can tell, the opinions are materially identical, and so we cite the amended opinion
throughout this decision.
13
No. 19-5332, Vonderhaar v. Waymire et al.
A. FMLA Interference
The FMLA entitles an employee to twelve weeks of unpaid leave because of, among other
events, a serious health condition. 29 U.S.C. § 2612. To ensure that employers fully comply with
this entitlement, the FMLA bars employers from “interfer[ing] with, restrain[ing], or deny[ing] the
exercise of or the attempt to exercise, any right provided under [the statute].” Id. § 2615(a)(1); see
also id. § 2617(a)(2) (providing private right of action). To state a claim of “FMLA interference,”
then, an employee must show (1) that they were an eligible employee, (2) that their employer was
a covered employer, (3) that they were entitled to leave under the FMLA, (4) that they gave their
employer notice of their intention to take leave, and (5) that their employer denied or interfered
with FMLA benefits to which they were entitled. See Wallace v. FedEx Corp., 764 F.3d 571, 585
(6th Cir. 2014). Further, although unlawful interference could occur when an employer merely
attempts to “discourag[e] an employee from using [FMLA] leave,” 29 C.F.R. § 825.220(b), the
employee must, in all cases, show that their employer’s interference prejudiced them, or “caused
them harm,” within the meaning of the statute, Wallace, 764 F.3d at 585 (quoting Edgar v. JAC
Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006)); accord Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 89–90 (2002). For this reason, an employee cannot claim that their employer
interfered with their FMLA rights by “forcing” them to take leave, unless the employee can also
show that they requested “FMLA leave at a later date, and such leave [was] not available.”
Wysong, 503 F.3d at 449.
1. Scope of Interference Claim
Before addressing the merits of Vonderhaar’s interference claim, we must first determine
what aspects of the claim are properly before us. “It is well-settled that a plaintiff may not expand
14
No. 19-5332, Vonderhaar v. Waymire et al.
its claims to assert new theories in response to summary judgment . . . .” Renner v. Ford Motor
Co., 516 F. App’x 498, 504 (6th Cir. 2013) (citing Bridgeport Music, Inc. v. WB Music Corp., 508
F.3d 394, 400 (6th Cir. 2007)). Rather, if a plaintiff wishes to expand their claim mid-stream—
because, for instance, they unearthed new evidence of misconduct in discovery—“the proper
procedure . . . is to amend the complaint in accordance with Rule 15(a).” Tucker v. Union of
Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005) (quoting 10A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2723 (3d ed.
Supp. 2005)). This rule exists to protect defendants from “unfair surprise” when moving for
summary judgment. Id.
Vonderhaar violated these principles here. In her brief in opposition to AT&T’s summary-
judgment motion, Vonderhaar expanded her FMLA interference claim to include theories of
recovery that bore no resemblance whatsoever to the singular “involuntary leave” theory raised in
her complaint, which AT&T had (sensibly) focused on during its deposition of Vonderhaar and in
its initial summary-judgment brief. Worse yet, Vonderhaar’s new theories were directly
contradictory to her original theory, in that her original theory argued that AT&T interfered with
her FMLA rights by forcing her to use so much FMLA time that it unfairly “depleted” her statutory
entitlement, whereas her new theories contended that AT&T interfered with her FMLA rights by
preventing her from accessing that entitlement in the first place. As a result, Vonderhaar’s
opposition brief can fairly be described as the kind of “unfair surprise” that should be prevented
in federal court. Tucker, 407 F.3d at 788.
In response, Vonderhaar seems to argue that, because this rule has generally been used to
prevent parties from raising new causes of action in response to a summary-judgment motion, and
15
No. 19-5332, Vonderhaar v. Waymire et al.
because she did not do that here, AT&T should have been on notice that her interference claim
was more expansive than the literal words in her complaint. But Vonderhaar understates the scope
of our rule. In Renner, for instance, we applied this rule to a plaintiff who changed the “basis” for
his (singular) Labor-Management Relations Act § 301 claim “for the first time” in response to a
motion for summary judgment. Renner, 516 F. App’x at 504. We ruled likewise in Desparois v.
Perrysburg Exempted Village School District, 455 F. App’x 659, 666 (6th Cir. 2012), in the
context of a (singular) procedural-due-process claim. We see no reason to reach a different
outcome here. Accordingly, we address only the “involuntary leave” interference theory raised in
Vonderhaar’s complaint, not the nine new theories raised for the first time in her summary-
judgment opposition brief.
2. Merits of Interference Claim
As noted above, in her complaint, Vonderhaar contended that AT&T interfered with her
FMLA rights by forcing her to take an extended leave of absence, which then “depleted” her
FMLA entitlement. But the question is not whether AT&T forced Vonderhaar to use FMLA leave.
If that were the standard, an employee could raise an FMLA interference claim any time they took
FMLA leave. Rather, the question is whether AT&T forced Vonderhaar to take FMLA leave, and
then, at a later date, denied Vonderhaar additional FMLA leave on grounds that she had already
used up her allotment for the year. In other words, as we held in Wysong, an “involuntary leave”
interference claim “ripens only when and if the employee seeks FMLA leave at a later date, and
such leave is not available because the [employer] wrongfully forced [the employee] to use FMLA
leave in the past.” Wysong, 503 F.3d at 449 (emphasis added).
16
No. 19-5332, Vonderhaar v. Waymire et al.
Here, though, the undisputed record shows (1) that AT&T granted Vonderhaar two
additional FMLA days after she returned from the forced leave of absence, (2) that, even after
taking this additional time off, Vonderhaar still had unused FMLA leave at the time of her
resignation, and (3) that, in any event, AT&T never denied Vonderhaar FMLA leave when she
requested it, either before or after the alleged forced leave of absence. Vonderhaar’s interference
claim therefore fails as a matter of law.9 See, e.g., Huffman v. Speedway LLC, 621 F. App’x 792,
797 (6th Cir. 2015); Latowski v. Northwoods Nursing Ctr., 549 F. App’x 478, 487–88 (6th Cir.
2013).
B. FMLA Retaliation
In addition to prohibiting employers from “interfering with” their employees’ exercise of
FMLA rights, the FMLA bars employers from “discharg[ing] or in any other manner
discriminat[ing] against any individual for opposing any practice made unlawful by [the FMLA].”
29 U.S.C. § 2615(a)(2). To state a prima facie case of “FMLA retaliation,” then, an employee
must show (1) that they were engaged in a statutorily protected activity; (2) that their employer
knew they were exercising their FMLA rights; (3) that they suffered an adverse employment
action; and (4) “a causal connection existed between the protected FMLA activity and the adverse
employment action.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012). “This
prohibition includes retaliatory discharge for taking leave,” and may be proven “through either
direct or indirect evidence.” Marshall v. Rawlings Co., 854 F.3d 368, 376–77 (6th Cir. 2017)
(quoting Arban v. West Publ’g Corp., 345 F.3d 390, 403 (6th Cir. 2003)). When relying on
9
Indeed, Vonderhaar has never argued to the contrary, either in this court or in the lower court.
17
No. 19-5332, Vonderhaar v. Waymire et al.
“indirect evidence,” though, an employee must proceed under the McDonnell Douglas burden-
shifting framework, just as in any other employment discrimination case. Id. at 379.
Moreover, when asserting a claim of retaliatory constructive discharge—the kind of
adverse employment action at issue here—an employee must also point to evidence from which a
reasonable juror could find (1) that the employee’s working conditions were “objectively
intolerable” at or around the time of their resignation, and (2) that the employer “deliberately
created those conditions in hopes that they would force [the employee] to quit.” Groening v. Glen
Lake Cmty. Schs., 884 F.3d 626, 630 (6th Cir. 2018). This first prong presents a formidable hurdle,
as “[h]urt feelings and public criticism alone are insufficient to establish the existence of
intolerable working conditions.” Festerman v. County of Wayne, 611 F. App’x 310, 320 (6th Cir.
2015). Rather, the employee must show “that a reasonable person would have felt compelled to
resign” under the circumstances. McKelvey v. Sec’y of U.S. Army, 450 F. App’x 532, 535 (6th Cir.
2011) (quoting Pa. State Police v. Suders, 542 U.S. 129, 147 (2004)); see also Logan v. Denny’s,
Inc., 259 F.3d 558, 569 (6th Cir. 2001) (collecting non-cumulative list of factors to consider when
deciding whether an employee’s working conditions were “objectively intolerable”).
The precise contours of Vonderhaar’s retaliation claim are hazy, admittedly. It is unclear,
for instance, whether Vonderhaar is advancing a claim based on direct or indirect evidence of
retaliatory intent. It is also unclear whether Vonderhaar thinks that AT&T retaliated against her
because of her surgery-based leave of absence, or because of her general use of FMLA leave. At
bottom, however, we interpret Vonderhaar’s claim simply to be that AT&T (and, more
specifically, Waymire and Hoskins) constructively discharged her in retaliation for her exercising
18
No. 19-5332, Vonderhaar v. Waymire et al.
her right to take medical leave. See R.1-1 (Compl. ¶¶ 28–33) (Page ID #12); Appellant’s Br. at
35–44.
The problem is, even construing Vonderhaar’s retaliation claim generously, no reasonable
juror could find that AT&T constructively discharged her. And, absent evidence of constructive
discharge (or any other “adverse employment action”10), Vonderhaar cannot advance her claim
past summary judgment. This is true regardless of how Vonderhaar ultimately intended to prove
AT&T’s retaliatory intent. See, e.g., Brister v. Mich. Bell Tel. Co., 705 F. App’x 356, 359 (6th
Cir. 2017) (“[E]stablishing that [they were] constructively discharged” is a “fundamental” “burden
that [the employee] must meet regardless of whether we determine that she has presented direct
evidence or whether we decide that she must proceed under the McDonnell Douglas framework.”).
In support of her constructive-discharge claim, Vonderhaar argues that several factors on
which we generally rely in considering whether an employee’s working conditions were
“objectively intolerable” support her case. See Appellant’s Br. at 41 (contending that, in the
immediate run-up to her resignation, she suffered “a decrease in wage or salary,” “a material loss
of benefits,” and “significantly [diminished] material responsibilities”); accord, e.g., Logan, 259
F.3d at 570–71 (constructive discharge supported by evidence that, immediately prior to restaurant
server’s resignation, restaurant demoted her to “busboy,” with lower pay and more “menial”
responsibilities). But the evidence Vonderhaar cites in support of this proposition, see Appellant’s
Br. at 36, proves only that Vonderhaar lost wages and commissions while she was out on the
10
Notably, on appeal, Vonderhaar has not rooted her retaliation claim in anything other than constructive
discharge. As a result, to the extent Vonderhaar could state a retaliation claim based on just the forced leave of
absence—which arguably constituted an independent adverse employment action (because Vonderhaar lost money as
a result of the leave)—that claim is forfeited. See Bickerstaff v. Lucarelli, 830 F.3d 388, 396–97 (6th Cir. 2016)
(noting that a party forfeits an issue when they “ma[k]e no effort” to argue the issue on appeal).
19
No. 19-5332, Vonderhaar v. Waymire et al.
allegedly forced leave of absence. It does not suggest that Vonderhaar suffered a permanent loss
in income or diminution in job responsibilities after she returned from that leave of absence, in the
two weeks leading up to her resignation. Indeed, Vonderhaar conceded as much at her deposition.
See supra at 8–9.
With Vonderhaar’s assertion of a “material change in salary and job responsibilities”
eliminated from consideration, then, it becomes clear that Vonderhaar’s evidence of “objectively
intolerable” working conditions rests entirely on four allegations: (1) Hoskins and Waymire telling
Vonderhaar at the April 17 meeting that she was “too hormonal” and “too emotional” to do her
job, (2) Hoskins failing to provide Vonderhaar with coaching sessions (after she returned from
leave), (3) Waymire twice giving Vonderhaar the cold shoulder (after she returned from leave),
and (4) Hoskins once failing to protect Vonderhaar from a verbally irate customer (after she
returned from leave).
These events were undoubtedly frustrating to live through. But, unfortunately for
Vonderhaar, even viewed cumulatively, and in the light most favorable to her, these four
allegations are the exact kind of one-off, “hurt feelings” incidents that fail to create a triable dispute
as to the intolerability of an employee’s working conditions. See, e.g., Groening, 884 F.3d at 630–
31 (negative comments about employee’s repeated use of FMLA leave time did “not amount to
constructive discharge” because criticism was “limited to a few isolated incidents”); Cleveland v.
S. Disposal Waste Connections, 491 F. App’x 698, 708 (6th Cir. 2012) (similar). Indeed, this court
has affirmed findings of no constructive discharge when an employee alleged working conditions
far more intolerable than those alleged here. See, e.g., Brister, 705 F. App’x at 360 (no constructive
discharge despite allegations that supervisor repeatedly made employee cry, “call[ed] her stupid
20
No. 19-5332, Vonderhaar v. Waymire et al.
during their daily coaching sessions,” and told her “she needed to seek psychological help”). More
still, Vonderhaar resigned her post only two weeks after she returned from leave. This short gap
in time strongly undercuts Vonderhaar’s assertion that any reasonable employee would have
resigned under the circumstances. Cf. id. (fact that demeaning treatment lasted “only” three to
four months suggested reasonable employee would not have felt compelled to resign). The district
court was correct to grant summary judgment on this basis.
C. Wrongful Discharge
Vonderhaar’s next claim—wrongful discharge—is rooted in Kentucky state law, and so
we look to the decisions of the Kentucky Supreme Court to the extent “that court has addressed
the relevant issue.” Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir.
2009) (quoting Talley v. State Farm Fire & Cas. Co., 223 F.3d 323, 326 (6th Cir. 2000)). To the
extent the Kentucky Supreme Court has not addressed the relevant issue, however, we must
attempt to “anticipate how [that court] would rule in [this] case,” and may consider on-point
Kentucky Court of Appeals decisions in so doing. Id. (quoting In re Dow Corning Corp., 419 F.3d
543, 549 (6th Cir. 2005)).
The Kentucky Supreme Court has described “[t]he tort of wrongful discharge” as a
“carefully crafted exception[] to the common law doctrine that ‘an employer may discharge his at-
will employee for good cause, no cause, or for a cause that some might view as morally
indefensible.’” Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 420 (Ky. 2010) (quoting Firestone
Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983)). And, in keeping with the
“carefully crafted” nature of the exception, the Kentucky Supreme Court has specifically limited
the tort’s applicability to the following three situations: “(1) when there are ‘explicit legislative
21
No. 19-5332, Vonderhaar v. Waymire et al.
statements prohibiting the discharge,’ (2) when ‘the alleged reason for the discharge . . . was the
employee’s failure or refusal to violate a law in the course of employment,’ or (3) when ‘the reason
for the discharge was the employee’s exercise of a right conferred by well-established legislative
enactment.’” Marshall v. Montaplast of N. Am., Inc., 575 S.W.3d 650, 652 (Ky. 2019) (alteration
in original) (emphasis added) (quoting Hill, 327 S.W.3d at 422).
This case concerns the second situation—the prohibition on discharging an employee for
“failure or refusal to a violate a law in the course of employment.” There is no Kentucky Supreme
Court decision directly addressing this prohibition, unfortunately. That court has, however,
favorably cited a Kentucky Court of Appeals decision, Northeast Health Management, Inc. v.
Cotton, 56 S.W.3d 440 (Ky. Ct. App. 2001), as a paradigmatic example of this kind of wrongful
discharge. See Hill, 327 S.W.3d at 422. And, in that case (Cotton), the Kentucky Court of Appeals
held that a hospital committed wrongful discharge when it created “intolerable working
conditions” (and thus “constructively discharged” an employee) because the employee refused to
“backdate a business record” “in order for the hospital to maintain its license and . . . be paid
through Medicare and Medicaid.” Cotton, 56 S.W.3d at 445–48 (affirming jury verdict for
employee).
Notably, too, we have built upon the Kentucky Supreme Court’s general language and
cases like Cotton, holding that, if presented with the question, the Kentucky Supreme Court would
likely rule that the prohibition on firing an employee for “refusing to violate the law” applies not
just “when an employer affirmatively requests that the employee violate the law” (as in Cotton),
but also “when an employee learns of illegal activity, and, although not directly invited to
participate by [their] employer, knows [they] will inevitably become complicit in the illegality by
22
No. 19-5332, Vonderhaar v. Waymire et al.
performing [their] normal work responsibilities.” Alexander v. Eagle Mfg. Co., 714 F. App’x 504,
509 (6th Cir. 2017). This was so, we held, because the “policy behind [the ‘refusing to violate the
law’] exception is to prevent an employee from having to choose between losing [their] job and
breaking the law,” and because the Kentucky Supreme Court would “[p]resumably” want to
further that policy by protecting employees from employers who are wrong-headed enough to
place their employees in a position where they will “inevitably” break the law but savvy enough
not to command directly that they do so. Id.; see also Smith v. LHC Grp., Inc., 727 F. App’x 100,
108 (6th Cir. 2018) (concurring with Alexander’s interpretation of Kentucky law).
Here, Vonderhaar leans heavily on Alexander and essentially contends that, although
nobody at AT&T asked her to break any laws, she was forced to resign because, had she remained
at the Maysville store any longer than she did, she would have “become complicit in [her
colleagues’] illegal activity.” Appellant’s Br. at 46. Accordingly, Vonderhaar concludes, a
reasonable juror could find that her resignation constituted a “constructive discharge” in violation
of Kentucky law.
In our view, however, AT&T is entitled to summary judgment on this claim. There are at
least two reasons for this.
First, outside conclusory allegations in her complaint, see, e.g., R.1.1 (Compl. ¶ 45) (Page
ID #14), and generic assertions of “fraud” at her deposition, Vonderhaar has not submitted
evidence that her colleagues violated the law (as opposed to company policy) when they did things
like “add temporary phone numbers to boost sales numbers” or “complete a two-year contract with
23
No. 19-5332, Vonderhaar v. Waymire et al.
a customer over the phone.”11 This evidentiary shortcoming matters because, without evidence
concerning the specific laws at issue, a jury could not find that Vonderhaar risked engaging in
illegal behavior by continuing to work at the Maysville store. See, e.g., Chavez v. Dakkota
Integrated Sys., LLC, 832 F. Supp. 2d 786, 802–03 (W.D. Ky. 2011) (granting employer summary
judgment because, although the employee “may have believed that Defendants’ actions were
violations of Kentucky law, . . . his subjective belief does not determine whether an action is one
that is violative of public policy”; rather, the employee “must put forth evidence that the
Defendants[’] actions were in fact violations of Kentucky law”); cf. Cotton, 56 S.W.3d at 447–48
(jury determined that employee was constructively discharged for “refusing to violate the law” by
looking to elements of specific Kentucky statute that employee allegedly risked violating).
Second, even assuming Vonderhaar’s colleagues engaged in “fraud” (or other illegal
activity), Vonderhaar has submitted no evidence that she would have “inevitably become complicit
in the illegality [of her colleagues’ acts] by performing [her] normal work responsibilities.”
Alexander, 714 F. App’x at 509.12 The allegations at issue in Alexander are instructive. There, a
manufacturing plant employee discovered that his colleagues were removing the “defective” label
from car engine blocks, and instead “misrepresenting [them] as good engine blocks.” Id. at 506.
When the employee—who was purportedly “responsible for a final compliance check to ensure
that no defective engine blocks were shipped to the automobile manufacturer”—complained about
11
To be sure, Vonderhaar’s testimony that her colleagues added insurance to customer accounts without
telling the customer could constitute evidence that her colleagues violated Kentucky consumer protection law. See,
e.g., Ky. Rev. Stat. Ann. § 367.170 (prohibiting “[u]nfair, false, misleading, or deceptive” trade practices). But
Vonderhaar did not even attempt to make that showing in her summary-judgment papers or before this court.
12
Although Alexander’s interpretation of Kentucky law does not bind this panel, the decision’s reasoning is
persuasive; we see no reason to deviate from it here. Cf. Smith, 727 F. App’x at 108 (“We agree with the analysis in
Alexander.”).
24
No. 19-5332, Vonderhaar v. Waymire et al.
this conduct, the employee’s supervisor allegedly told the employee he would sign off on the
engine blocks if the employee would not. Id. The plant then fired the employee the next day,
without explanation. This unsettling series of events prompted the employee to file a wrongful
discharge suit, under the “refusing to violate a law” provision at issue here. Despite recognizing
the more generous interpretation of wrongful-discharge law noted above, we ultimately found
(over one judge’s dissent) that the employee’s complaint failed to state a plausible claim for relief.
This was so, we ruled, because (1) in light of the supervisor’s comment, there was no reason to
assume “that had [the employee] not spoken up, he would have necessarily become a forced
participant in the allegedly unlawful activity he witnessed,” and (2) there was no indication in the
complaint “that the activity [the employee] observed was anything more than an isolated incident.”
Id. at 509 (emphasis added).
This case is far easier than Alexander. For one, Alexander centered around an actual
discharge and a (seemingly) straightforward causal connection between the discharge and the
employee’s refusal to engage in illegal conduct. Neither of those elements is present here. More
still, even assuming that Vonderhaar regularly witnessed her colleagues engage in illegal activity,
Vonderhaar conceded at her deposition that not only was she was not asked to participate in any
of the “illegal activities” she witnessed, either by her supervisors or her colleagues, but she did not
actually engage in any of those activities herself, outside a tangential connection to the Jamie Davis
“promotional tablet” incident. See, e.g., R.38-5 (Vonderhaar Dep. at 79) (Page ID #482)
(“Q: Were you ever asked during the time you worked there to engage in this type of similar
behavior Ms. Davis did? A: Me personally, no, not that I can recall. Q: Do you recall engaging on
your own in this type of behavior? A: Pulling up accounts and adding – no, no, ma’am.”). On these
25
No. 19-5332, Vonderhaar v. Waymire et al.
facts, no reasonable juror could find that, had Vonderhaar stayed with AT&T any longer than she
did, she “would have necessarily become a forced participant in the allegedly unlawful activity
[she] witnessed.” Alexander, 714 F. App’x at 509.
What’s more, unlike Smith—where we held that an employee did state a plausible
wrongful-discharge claim, at least at the motion-to-dismiss stage—Vonderhaar did not work in a
supervisory position that would have “inevitably [led] to [her] authorizing [the] fraudulent”
transactions she witnessed. Smith, 727 F. App’x at 103, 108. Rather, Vonderhaar worked as a
floor-level salesperson, and was not directly responsible for anybody else’s work. Cf. id. (director
of nursing at home healthcare provider alleged constructive discharge after discovering, and then
reporting, widespread insurance fraud among both staff and upper management).
All told, even under the generous interpretation of Kentucky wrongful-discharge law set
forth in Alexander (and repeated in Smith), Vonderhaar has not shown that a genuine dispute of
material fact exists as to whether AT&T constructively discharged her because she “fail[ed] or
refus[ed] to violate a law in the course of [her] employment.” Marshall, 575 S.W.3d at 652
(quoting Hill, 327 S.W.3d at 422).
D. Additional State Law Claims
Finally, as for Vonderhaar’s claims of intentional infliction of emotional distress (“IIED”)
and negligent infliction of emotional distress (“NIED”), we see no reason to consider them on the
merits. Vonderhaar did not address either claim in her briefing, outside a few perfunctory
sentences, and has accordingly forfeited any contention that the district court erred when it granted
AT&T summary judgment. See Bickerstaff v. Lucarelli, 830 F.3d 388, 396–97 (6th Cir. 2016)
(noting that a party forfeits an issue when they “ma[k]e no effort” to argue the issue on appeal).
26
No. 19-5332, Vonderhaar v. Waymire et al.
This forfeiture is particularly notable because, in ruling for AT&T, the district court did not simply
rest its holding on “the same” factual and legal findings it applied to Vonderhaar’s FMLA and
wrongful-discharge claims, as Vonderhaar seems to contend. Appellant’s Br. at 48. Rather, the
court’s holding rested, at least in part, on the specific element of “emotional injury,” which was
not at issue in Vonderhaar’s other claims. See, e.g., Vonderhaar, 2019 WL 1120117, at *11
(“Vonderhaar’s IIED claim also fails because she has not shown that her emotional injury qualifies
as ‘serious’ or ‘severe.’”) (emphasis added).
III. CONCLUSION
For these reasons, we AFFIRM the district court’s judgment.
27