Jeff Pagel v. TIN Incorporated , 695 F.3d 622 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2318
JEFF T. P AGEL,
Plaintiff-Appellant,
v.
TIN INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-CV-1132—Joe Billy McDade, Judge.
A RGUED M AY 24, 2012—D ECIDED A UGUST 9, 2012
Before C UDAHY, K ANNE, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. Jeff Pagel brought this action
alleging that his employer, TIN Inc., violated the Family
and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., by
interfering with his right to take leave and retaliating
against him for exercising that right. The district court
granted summary judgment in favor of TIN, reasoning
that the company fired Pagel for poor performance
rather than for taking leave. Because we believe genuine
2 No. 11-2318
issues of material fact remain unresolved, we reverse
and remand for further proceedings.
I. B ACKGROUND
We review grants of summary judgment de novo,
viewing the record in the light most favorable to Pagel
and drawing all reasonable inferences in his favor.
Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011). The
following description of the facts reflects this perspective.
TIN manufactures and supplies containerboard to
customers seeking both corrugated packaging products
and custom displays. In May 2000, TIN hired Jeff Pagel
as an account manager—TIN’s term for an outside sales-
man. Pagel’s sales territory extended from Central
Illinois to Western Indiana, and his primary responsi-
bilities included: calling on existing and prospective
customers, creating custom-packaging designs, coordi-
nating orders with production facilities, and planning
and reporting sales activities to company management.
Generally, account managers have significant flexibility
in scheduling sales calls and resolving customer prob-
lems. In his six years at TIN, Pagel earned a steady
annual salary of about $180,000, comprising both base
pay and commission. The commission portion of Pagel’s
income was based on annual sales of at least $7 million.
On January 1, 2006, Pagel began reporting to Scott
Kremer, Regional Sales Manager. Also beginning in
2006, company management required supervisors to give
each account manager a periodic performance evalua-
No. 11-2318 3
tion—something Pagel never previously received. As
part of the evaluation procedure, Kremer asked his
account managers to submit daily activity reports sum-
marizing each day’s sales and two-week itinerary
reports identifying future sales activities and leads.
Account managers were also required to submit a
periodic list of sales prospects and targets. Compliance
with these reporting requirements was noted on each
account manager’s evaluation.
That summer, Pagel experienced chest pain and labored
breathing, prompting him to visit two physicians in
July 2006. During his second appointment on July 21,
Dr. Nicholas Shammas ordered a two-day stress test
for August 4 and 7. The tests revealed a septal wall
ischemia—a blockage in a portion of his heart. On
August 29, Pagel was admitted to the hospital for an
angioplasty and stent placement. He was discharged
the next day and advised to rest for several days there-
after. The following week, Pagel’s symptoms returned,
and he was quickly admitted to Genesis Medical Center
for two nights. Although an examination did not
expose any additional heart trouble, a CT scan revealed
an irregular and unrelated mass in his left lung. A subse-
quent September 18, 2006, PET scan of the mass was
negative. Pagel claims each of these absences was
covered by the FMLA, and he further claims that he
gave Kremer prior notification of each absence.
On August 24, 2006, five days before his angioplasty,
Kremer and Crawfordsville, Indiana, Plant Manager
Rick Eaks, called Pagel to a meeting to discuss his year-to-
4 No. 11-2318
date performance. Kremer observed that Pagel’s sales
revenue and volume had declined over the past two
years and the 2006 year-to-date numbers were the
worst yet. Kremer also chided Pagel for submitting the
fewest number of new custom-packaging designs of
any account manager and making the second fewest
daily sales calls. The memo ended by indicating that
Pagel risked termination if his performance did not
improve. Pagel vigorously disputed, and continues to
dispute, Kremer’s underlying data, arguing that there
were numerous sales of which Kremer was unaware.
Pagel also contends that Kremer’s per-day calcula-
tions inaccurately included days that he received FMLA-
qualifying treatment. Prior to the August 24 meeting,
Pagel had never been disciplined or warned about his
performance.
While Pagel was still in a Davenport, Iowa, clinic for
the September 18 PET scan, Kremer called to notify him
that Kremer would be in Champaign, Illinois, the
following day. Kremer wanted to observe and evaluate
Pagel’s performance during what is known as a sales ride
along—a standard practice at TIN. Because Pagel had
no prior plans to be in Champaign on September 19, he
hastily attempted to schedule a few calls. According to
Pagel, scheduling a sales call typically requires as much
as one week’s notice to the prospective customer, not
to mention the time it takes account managers to
prepare for each call. In any event, Pagel and Kremer
only attended one scheduled call and one unscheduled
call that day. A third call was attempted, but, unbeknownst
to Pagel, the prospective customer had moved locations.
No. 11-2318 5
Both Pagel and Kremer agree that the ride along did not
go as planned—Kremer called it disastrous and Pagel
concluded that it could have gone better.
For Kremer, Pagel’s poor performance during the
ride along was the final straw. In a memorandum dated
October 2, 2006, and delivered October 4, Kremer termi-
nated Pagel’s employment, ostensibly for poor perfor-
mance. The memo relayed the details of the ride along,
and it further noted that Pagel’s performance had not
improved since the August 24 evaluation. As he did
with the performance evaluation, Pagel vehemently
disputed the accuracy of the data and metrics Kremer
outlined in the termination memo. In at least one
instance, Pagel correctly noted that Kremer incorrectly
criticized him for missing reporting deadlines on days
Pagel received medical treatment.
In October 2008, Pagel filed suit in Illinois state court
alleging FMLA claims for interference and retaliation.
TIN removed the complaint to federal court and filed a
motion for summary judgment shortly thereafter. The
district court granted summary judgment for TIN, rea-
soning that Pagel’s poor performance on the September 19
ride along was a sufficient, non-discriminatory reason
for termination. Pagel filed this timely appeal.
II. A NALYSIS
Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
6 No. 11-2318
of law.” Fed. R. Civ. P. 56(a). A genuine factual dispute
exists if a reasonable jury could find for either party.
Stokes v. Bd. of Educ. of Chicago, 599 F.3d 617, 619 (7th
Cir. 2010).
The FMLA generally provides eligible employees suf-
fering from a serious medical condition with as many
as twelve weeks of unpaid leave during any twelve-
month period. 29 U.S.C. § 2612(a)(1)(D). Employers are
prohibited from both interfering with, id. § 2615(a)(1),
and retaliating against, id. § 2615(a)(2), an employee’s
use or attempted use of FMLA leave. The difference
between the two theories is that a retaliation claim
requires the employee to prove discriminatory or retali-
atory intent while an interference claim only requires
the employee to prove that the employer denied him
entitlements provided by the Act. Kauffman v. Fed.
Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). On appeal,
Pagel argues that the district court erred in granting
summary judgment to TIN on both counts. We con-
sider each claim individually.
A. FMLA Interference
It is unlawful for employers to interfere with an em-
ployee’s attempt to exercise her rights under the FMLA. 29
U.S.C. § 2615(a)(1). Here, Pagel claims that TIN denied
him his duly earned FMLA rights because the company
improperly considered missing reports in its decision
to fire him, and it did not adjust Pagel’s sales expecta-
tions despite the many days he spent receiving treat-
ment. To prevail on an FMLA-interference theory, the
No. 11-2318 7
plaintiff employee must prove that: “(1) she was eligible
for the FMLA’s protections; (2) her employer was
covered by the FMLA; (3) she was entitled to take
leave under the FMLA; (4) she provided sufficient notice
of her intent to take leave; and (5) her employer denied
her FMLA benefits to which she was entitled.” Makowski
v. SmithAmundsen LLC, 662 F.3d 818, 825 (7th Cir.
2011) (quoting Goelzer v. Sheboygan Cnty., Wis., 604 F.3d
987, 993 (7th Cir. 2010)). TIN concedes that Pagel’s claim
satisfies the first two elements, and thus our analysis
focuses solely on the last three.
Before considering the three contested elements, we
must first address TIN’s claim that Pagel waived his
interference claim on appeal. TIN recognizes Pagel’s
recitation of the elements of an interference claim in his
opening brief, but the company argues that Pagel was
really addressing the discriminatory-intent element of a
retaliation claim. As such, Pagel must have waived any
further pursuit of his interference claim. See Crawford
v. Countrywide Home Loans, Inc., 647 F.3d 642, 650 (7th
Cir. 2011) (insufficiently developed arguments are
waived on appeal). We disagree. Pagel’s discussion of
discriminatory intent and pretext appears to be in
response to the district court’s holding that Pagel’s
poor performance during the ride along constituted a
legitimate, non-discriminatory reason for termination.
Pagel undoubtedly focused so heavily on this inter-
ference element because it was the only element the
district court found lacking in his claim. Moreover,
TIN ignores the role pretext evidence can play in
rebutting an employer’s claim that an employee was
8 No. 11-2318
fired for a non-discriminatory reason. Simpson v. Office
of Chief Judge of Circuit Court of Will County, 559 F.3d 706,
715 (7th Cir. 2009) (“Although proof of pretext is not
necessarily sufficient, by itself, to support an FMLA
interference claim, it can have some evidentiary
value.”). All of this is to say that Pagel did not waive
his interference claim, and thus, we move to the three
disputed elements.
1. Entitlement to FMLA Leave
An employee is entitled to FMLA leave if she suffers
from “a serious health condition that makes the
employee unable to perform the functions of the position
of such employee.” 29 U.S.C. § 2612(a)(1)(D); see also de la
Rama v. Ill. Dep’t of Human Servs., 541 F.3d 681, 686 (7th
Cir. 2008). The Act defines a “serious health condition”
as “an illness, injury, impairment, or physical or
mental condition that involves—(A) inpatient care in a
hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.”
29 U.S.C. § 2611(11).
For the first time on appeal, TIN argues that Pagel’s
September 18, 2006, PET Scan does not qualify as a
serious health condition, because it neither required
inpatient care nor continuing treatment. In other
words, the PET scan had nothing to do with Pagel’s
serious heart condition. But, TIN did not present this
claim to the district court and therefore, we need not
consider it. Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834,
841 (7th Cir. 2010) (“It is well-settled that a party may
No. 11-2318 9
not raise an issue for the first time on appeal.”). Even
if TIN preserved this argument, we still find that Pagel’s
serious health condition—septal wall ischemia—required
an inpatient stay the night of August 29 and again on
the nights of September 6 and 7. That inpatient care
qualifies his heart ailment as a serious health condition,
even if we were to ignore any alleged interference
during Pagel’s September 18 absence. See 29 U.S.C.
§ 2611(11); 29 C.F.R. §§ 825.113(a), 825.114.
For purposes of completeness, we also address
whether Pagel’s heart condition prevented him from
performing the essential functions of an account man-
ager.1 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 825.123(a)
(“An employee is ‘unable to perform the functions of the
position’ [if] . . . the employee is unable to work at all
or is unable to perform any one of the essential
functions of the employee’s position . . . .”). Although
Pagel apparently made a few phone calls to customers
during his recovery, the district court correctly rea-
soned that Pagel could not fully perform the essential
function of visiting existing and prospective customers.
After all, TIN would not have provided Pagel a
company car if calling on customers required nothing
more than a phone call.
1
Before the district court, TIN argued that Pagel’s serious
health condition did not prevent him from performing the
essential functions of his job. TIN evidently abandons this
claim on appeal.
10 No. 11-2318
2. Notice of FMLA Leave
To succeed on an interference claim, Pagel must also
show that he provided sufficient notice of his intent to
take leave. See Makowski, 662 F.3d at 825. The employee’s
primary duty in notifying his employer is to provide
enough information to the employer “to show that he
likely has an FMLA-qualifying condition.” Burnett v.
LFW Inc., 472 F.3d 471, 479 (7th Cir. 2006). Although
the employee need not “expressly assert rights under
the Act or even mention the FMLA to meet his or her
obligation to provide notice,” 29 C.F.R. § 825.301(b), an
employee’s reference to being “sick” is generally not
enough, de la Rama, 541 F.3d at 687. The district court
below found that Pagel produced enough notice
evidence to at least create a genuine issue of material
fact. It correctly noted that the notice inquiry is a “fact-
rich question . . . perhaps best resolved by the trier of
fact, particularly, where, as is the case here, the em-
ployer and employee dispute the quantity and nature
of communications regarding the employee’s illness.”
Pagel v. TIN Inc., 832 F. Supp. 2d 965, 972 (C.D. Ill. 2011)
(quoting Burnett, 472 F.3d at 479 n.4).
On appeal, TIN begins by arguing that Pagel’s notice
was insufficient. There is certainly some force to this
argument given that the record could charitably be de-
scribed as incomplete. Nonetheless, the record con-
tains enough evidence for a reasonable jury to conclude
that Pagel met his burden on the notice element. For
example, Pagel claims that he spoke with Kremer about
his chest pain prior to both his July 10 and July 21 ap-
No. 11-2318 11
pointments, but his memory is fuzzy about the contents
of their conversations. (Pagel Dep. at 83-84.) Pagel’s
memory is similarly fuzzy about the notice he gave
Kremer prior to the two-day stress test in early August,
but he believes they discussed the tests. (Id. at 84.)
Pagel more definitively states that he both phoned and
emailed Kremer about his need for leave prior to the
angioplasty and stenting procedure, but he was unable
to produce a copy of the email. (Id. at 87-88.) We agree
with TIN that Pagel’s description of the provided notice
is ambiguous, but for his part, Kremer admits that he
was aware of Pagel’s chest pain, and that he was told
that Pagel “was going to be in the hospital.” (Kremer
Dep. at 18.) Although Pagel’s notice evidence may not
be enough to win at trial, at summary judgment,
Kremer’s admission and the parties’ conflicting evi-
dence at least creates a genuine issue of material fact
that is best resolved by the trier of fact. Burnett, 472 F.3d
at 479 n.4.
TIN’s second attack on Pagel’s notice evidence rests
on our decision in Aubuchon v. Knauf Fiberglass, GmbH,
359 F.3d 950, 952 (7th Cir. 2004). TIN claims that
Aubuchon requires that FMLA notice include a demand
for leave, which is something that Pagel’s request
allegedly omitted. This argument is meritless because
Kremer conceded in his deposition that Pagel requested
days off. (Kremer Dep. at 84.) Moreover, Kremer knew
of Pagel’s need for hospitalization, (id. at 18), and ac-
cordingly, it is difficult for us to imagine a scenario
where Pagel’s notice of hospitalization did not include
an implicit demand for leave. Ultimately, we agree
12 No. 11-2318
with the district court’s conclusion that Pagel has
produced enough notice evidence to survive summary
judgment.
3. Employer Interfered with FMLA Rights
Finally, Pagel must prove that TIN denied him FMLA
benefits to which he was entitled. Makowski, 662 F.3d
at 825. As a general matter, “employers cannot use the
taking of FMLA leave as a negative factor in employ-
ment actions, such as hiring, promotions or disciplinary
actions . . . .” 29 C.F.R. § 825.220(c). To succeed, Pagel
must establish, by a preponderance of evidence, that
he was entitled to the benefits he claims. Kohls v. Beverly
Enters. Wis., Inc., 259 F.3d 799, 804 (7th Cir. 2001). But, the
employer “may present evidence to show that the em-
ployee would not have been entitled to his position even
if he had not taken leave.” Cracco v. Vitran Express, Inc.,
559 F.3d 625, 636 (7th Cir. 2009). In other words, “em-
ployers may fire employees for poor performance
if they would have fired them for their performance
regardless of their having taken leave.” Ogborn v.
United Food & Commercial Workers Union, Local No. 881,
305 F.3d 763, 768 (7th Cir. 2002). To survive summary
judgment, Pagel must overcome any such evidence
offered by TIN. Cracco, 559 F.3d at 636.
Pagel argues that TIN interfered with his employment
by failing to make a reasonable adjustment to its em-
ployment expectations to account for his FMLA-protected
leave, and then terminating him when he failed to meet
No. 11-2318 13
those unadjusted expectations. The FMLA does not
require an employer to adjust its performance standards
for the time an employee is actually on the job, but it
can require that performance standards be adjusted
to avoid penalizing an employee for being absent
during FMLA-protected leave. In Lewis v. School District
#70, 523 F.3d 730, 743 (7th Cir. 2008), for example, we
reversed the district court’s grant of summary judgment
for the employer on an FMLA claim. There, the em-
ployee offered evidence that her employer had
expected her to complete all the duties of a full-time
bookkeeper while she was taking intermittent FMLA
leave, and then fired her for failing to meet that
full-time standard. Id. at 736-37. We concluded that
the performance problems that supposedly justified the
termination were a direct result of her FMLA leave so
that termination for those reasons would have made her
FMLA leave “illusory.” Id. at 743; see also Wojan v. Alcon
Labs., Inc., No. 07-11544, 2008 WL 4279365, at *5-6 (E.D.
Mich. Sept. 15, 2008) (denying summary judgment on
FMLA interference claim; jury could conclude employer
used former sales representative’s FMLA leave against her
by failing to adjust her sales quotas and performance
scores to account for her protected leave and then ter-
minating her for failing to meet that unadjusted standard)
(citing Wysong v. Dow Chem. Co., 503 F.3d 441, 447-48
(6th Cir. 2007) (reversing summary judgment for em-
ployer on plaintiff’s FMLA interference claim; em-
ployee was ostensibly terminated for failing to take a
“functional capacity exam” and to return to work after
being placed on severe work restrictions by company
14 No. 11-2318
doctor, but company doctor had imposed restrictions
based on knowledge that employee previously had
taken significant FMLA-protected leave)).
At summary judgment, Pagel presented evidence
showing that TIN terminated him in part for not
meeting sales expectations, even though he had missed
a number of days for FMLA treatment. (Kremer Dep. at
37, 45.) He also presented evidence showing that
Kremer relied on inaccurate data in finding that Pagel
did not meet some of the company’s reporting require-
ments. TIN subsequently admitted to some of these
inaccuracies. (Appellee’s Br. at 26.) Based on this
evidence, Pagel has presented enough evidence to meet
his initial burden. See Kohls, 259 F.3d at 804. TIN
countered Pagel’s evidence with its own evidence
showing that Pagel was terminated for poor perfor-
mance. The district court accepted TIN’s argument,
reasoning that Pagel’s disastrous performance during
Kremer’s ride along was a legitimate, non-discriminatory
ground for his termination.
On appeal, Pagel initially claims that his performance
on the ride along was not as bad as Kremer describes.
But, like the district court, we find no merit to this argu-
ment because “this court does not sit as a super-person-
nel department that reexamines an entity’s business
decisions.” Balderston v. Fairbanks Morse Engine Div. of
Coltec Indus., 328 F.3d 309, 324 (7th Cir. 2003). We have
little expertise in evaluating the merits of business and
personnel decisions, and we see no need to make an
exception here.
No. 11-2318 15
Pagel also claims that his performance during the
ride along should not be considered because Kremer set
him up to fail. Pagel continuously refers to his undisputed
deposition testimony suggesting that account managers
need one week to set up and prepare for a sales
call. (Pagel Dep. at 127.) Although Pagel concedes that
Kremer observes each account manager under his super-
vision, he argues that the one day he was given to
schedule sales calls guaranteed poor performance. The
district court was unpersuaded by this second argu-
ment primarily because it saw no evidence in the record
to suggest that Pagel objected to Kremer’s ride along at
the time the request was made. We disagree. First,
nothing requires Pagel to have objected to the re-
quested ride along. In fact, employees routinely comply
with a superior’s request regardless of how unfair the
employee perceives that request to be. Moreover, Pagel
was already on thin ice with Kremer, meaning that
Pagel’s objection was even less likely. Second, any
failure to object does not change the inference that
Kremer’s request for a ride along, at least at summary
judgment, looks suspicious. The record suggests that
account managers need time to set up a sales call—perhaps
as much as one week. Because Pagel was only given
one day to set up sales calls in a city he did not
previously intend to visit, it is no wonder that every-
one agreed that he could have done a better job.
Certainly, a reasonable jury could interpret this evidence
as Kremer setting up Pagel for failure.
Finally, TIN claims there were independent grounds to
find that Pagel’s performance had become unacceptable.
16 No. 11-2318
For example, TIN contends that Pagel’s sales revenue
and volume had declined, he had identified no new
target customers, and he did not contact two prospec-
tive customers in his territory. According to TIN, this
independent data should have permitted Kremer to
fire Pagel even if he completely ignored Pagel’s perfor-
mance during the ride along. We are not convinced. First,
the district court relied solely on Pagel’s performance
during the ride along in finding that TIN had a non-
discriminatory reason for firing Pagel. Pagel, 832
F. Supp. 2d at 973-74. Second, and as the district court
found, much of the evidence on which TIN relies is dis-
puted, and we are of course required to draw all
inferences in Pagel’s favor at summary judgment, Draper,
664 F.3d at 1113. For example, Pagel contends that his
commission-based salary should have declined if TIN’s
claims about the drop-off in his sales revenue and volume
were really true. To the contrary, the record suggests
Pagel’s salary remained stable. Moreover, Kremer con-
ceded that some of the reporting observations he made
in the termination memo were inaccurate. Perhaps
these independent grounds for termination will play a
role at trial, but at summary judgment, we find that
Pagel has offered sufficient evidence of interference
to survive.
B. FMLA Retaliation
Employers are also prohibited from retaliating against
an employee that exercises or attempts to exercise
FMLA rights. 29 U.S.C. § 2615(a)(2). In other words, the
No. 11-2318 17
employer cannot use an employee’s use of FMLA leave
as a negative factor in promotion, termination, and other
employment decisions. Breneisen v. Motorola, Inc., 512
F.3d 972, 978 (7th Cir. 2008). “We evaluate a claim of
FMLA retaliation the same way that we would evaluate
a claim of retaliation under other employment statutes.”
Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir.
2004). That is, an employee can proceed under the direct
or indirect method of proof. Burnett, 472 F.3d at 481.
Here, Pagel abandoned any mention of the indirect
method on appeal, and thus, we only review his direct
evidence of retaliation.
Under the direct method, Pagel must show: (1) he
engaged in a protected activity; (2) his employer took an
adverse employment action against him; and (3) there is
a causal connection between the protected activity and
the adverse employment action. Cracco, 559 F.3d at 633.
To succeed, Pagel must of course be entitled to FMLA
benefits, but we have already concluded that his
serious health condition entitled him to FMLA leave, so
we focus only on the causal link. The causal-nexus
element may be met through either a direct admission
from Kremer or through “a convincing mosaic of circum-
stantial evidence” permitting that same inference.
Ridings v. Riverside Med. Ctr., 537 F.3d 755, 771 (7th Cir.
2008). The convincing mosaic of circumstantial evidence
may include suspicious timing, ambiguous statements
from which a retaliatory intent can be drawn, evidence
of similar employees being treated differently, or evi-
dence that the employer offered a pretextual reason for
the termination. Jajeh v. Cnty. of Cook, 678 F.3d 560, 570
(7th Cir. 2012).
18 No. 11-2318
On appeal, Pagel primarily argues that TIN’s claim of
poor performance is mere pretext, and for the reasons
discussed earlier, we agree. The undisputed record evi-
dence suggest that account managers need one week to
schedule and fully prepare for a customer visit. Here, the
one-day notice looks like nothing more than a set up.
Although poor performance can certainly be a valid, non-
discriminatory basis for Pagel’s termination, a genuine
issue of material fact remains as to whether this was
the true reason for Pagel’s termination. See Burnett,
472 F.3d at 482.
III. C ONCLUSION
For the foregoing reasons, we R EVERSE the district
court’s grant of summary judgment in favor of TIN and
R EMAND for further proceedings consistent with this
opinion.
8-9-12