Tuesday, August 5, 2014

7th Circuit Affirms Summary Judgment in Favor of Wal-Mart in FMLA Retaliation and Sex Discrimination Case

In a case straight out of Wisconsin, the Court of Appeals for the Seventh Circuit granted summary judgment in favor of retailer Wal-Mart on all of plaintiff Erika Lagenbach's claims:  FMLA retaliation, and Title VII failure-to-promote and disparate pay.  It was fairly easy to see how this case was going to be decided from the first few pages of the decision as they are spent describing, in detail, Lagenbach's sub-par performance issues and Wal-Mart's documentation of their efforts to assist Lagenbach in improving her performance, to no avail.

Essentially, to become an Assistant Manager at a Wal-Mart store, an employee had to meet one of the following minimum requirements:  (1) one year retail experience and one year supervisor experience, (2) two years general work experience and one year supervisor experience, or (3) completion of two or more years of college.  Lagenbach began working for Wal-Mart in 1998.  In 2001 she was promoted to Jewelry Department Sales Coordinator.  In 2006 or 2007, Lagenbach then began seeking an Assistant Manager position, applying to Wal-Mart's Management-In-Training program several times without success.  She was finally admitted to the program in February 2008.

Upon completion of the training program, Lagenbach began work as an Assistant Manager at Wal-Mart's West Bend, Wisconsin location, initially to the day shift and later to the night shift (such a change-of-shift was found consistent with her job description which matters as the court found this not to be an adverse action).  In 2009, Lagenbach received her first annual evaluation as an Asst. Manager and was given an overall, "Solid Performer" rating.  However, management noted, "a number of deficiencies she needed to work on, including her assertiveness and time management skills."  Later that same year, Lagenbach was placed on her first Performance Improvement Plan ("PIP").  A PIP at Wal-Mart, like in most every workplace, is used to improve sub-par performance.  The 2009 PIP described several problems with Lagenbach's performance including a lack of leadership, a tendency to push decisions off on associates, spending too much time in the office rather than on the sales floor, not following appropriate overnight shift procedures, and professionalism issues.

Around January 2010, Lagenbach returned to the day shift and on January 21, 2010, Wal-Mart filed a written discipline comment concerned Lagenbach.  Lagenbach's annual review took place in April 2010.  The store manager prepared the review, which gave Lagenbach a competency score of 2.63 out of 5 and a rating of "Development Needed."  The review also noted that Wal-Mart needed to see a "complete turn around" from Lagenbach and a renewed sense of "urgency and time management."  It also described specific issues with Lagenbach.

Later that month in April 2010, Lagenbach discovered that she needed surgery to remove fibroid tumors in her uterus.  In July 2010, she submitted a written request for continuous leave under the FMLA from July 30, 2010 until August 26, 2010, which was approved.  Lagenbach needed a slight extension of her leave, which was also approved, and she also provided a return to work certification from her doctor which indicated she could return to work without restrictions on September 13, 2010.  Upon her return, Lagenbach was assigned to the overnight shift, which could be more physically demanding than the day shift, but the Court found she could have delegated the heavy lifting to associates.  Lagenbach did discuss concerns she had with her health with her supervisor when she was informed she could request accommodation under the Americans with Disabilities Act.  Lagenbach never followed up on this conversation.

Lagenbach then had a mid-year evaluation, which was prepared before she went on leave in July.  This evaluation was also poor and Wal-Mart placed her on another PIP.  A follow-up session was scheduled for November 2010 where her progress was rated as "Below Expectations" and the decision to fire Lagenabach was made.  Lagenbach then sued Wal-Mart under the FMLA and Title VII.

The 7th Circuit easily affirmed the district court's grant of summary judgment finding that Lagenbach simply was not meeting the Wal-Mart's legitimate expectations, under the indirect method, and that she could not establish a casual nexus between her termination and her FMLA leave, under the direct method of proving discrimination.  In affirming summary judgment on Lagenbach's Title VII claims, the Court held that Lagenbach's failure-to-promote claims failed because she admitted she was not qualified for a promotion and she never even applied for any higher position.  On her disparate pay claim, the court again applied the indirect and direct methods and held that there were no similarly-situated employees presented under the indirect method and that under the direct method, she lacked direct evidence and had no circumstantial evidence given the only two male comparators were not similarly-situated.

The case is Lagenbach v. Wal-Mart Stores, Inc., (7th Cir., Aug. 4, 2014) No. 14-1022.

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