WILSON v. KENTUCKIANA REG. PLAN. DEV. AGY., (W.D.Ky. 2000)

CHARLES R. SIMPSON III, CHIEF JUDGE.

This matter is before the court on motion of the defendant, Kentuckiana Regional Planning and Development Agency ("KIPDA"), for summary judgment in this action alleging discrimination. The plaintiff, Michelle Wilson ("Wilson"), claims that her former employer, KIPDA, interfered with her rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., and discriminated against her on the basis of her sex in violation of the Kentucky Civil Rights Act, KRS 344.010, et seq., by discharging her from her employment ten days after her return from maternity leave. For the reasons set forth herein, the court finds that Wilson has failed to establish a prima facie case under either act, and summary judgment will be granted in favor of KIPDA.

A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 16 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. At 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).

The following facts are undisputed.

Wilson was employed by KIPDA as a contracts auditor from October 2, 1995 until she was asked to resign on January 15, 1998. During her employment, Wilson received positive performance evaluations and a number of pay increases. Both Wilson's immediate supervisor, Tom Pope, and KIPDA's executive director, Jack Scriber, testified that Wilson was a "good employee."

In March of 1997 Wilson learned that she was pregnant. She informed Pope and told a number of her co-workers. At some point during the next month, Scriber learned of Wilson's pregnancy, although Wilson testified that she did not discuss it with him. In April of 1997, Scriber went turkey hunting with Wilson's husband. He was a hunting companion of Scriber's, and took hunting trips with him several times each year. While on the April trip, Scriber made the remark that he was "pissed off" that Wilson had "knocked up one of his best employees." Wilson felt that this was a demeaning comment to make about his wife.

On October 27, 1997, Wilson requested and was granted eight weeks of maternity leave for the birth of her child. Her leave began on November 3, 1997. She did not return to work until January 5, 1998. Wilson's leave was paid for the first six weeks. She utilized the balance of her accrued sick and annual leave for the month of November. KIPDA's short-term disability carrier provided benefits for the first two weeks of December. Her leave time and benefits were exhausted on December 14, 1997.

Wilson submitted time sheets beginning December 15, 1997. Wilson submitted 27.5 hours for working at home typing a set of federal regulations into the hard drive of her computer, and reformatting a KIPDA purchase requisition form. She also claimed 17.5 hours of holiday pay. Wilson testified that she was looking for a way to be paid during the last two weeks of her leave. Jan Fortney, the payroll clerk, took Wilson's time sheet to Pope for his signature. Pope was unaware that Wilson was working at home while on maternity leave and did not recall having discussed the issue with Wilson.

Wilson returned to work on January 5, 1998. She testified that Scriber was cold and uncommunicative during her pregnancy and became hostile and aggressive after she returned to work in January. On January 12th or 13th Pope requested that Wilson print out the work she had completed at home. She gave him a copy of the federal regulations and the revised purchase requisition form. A meeting was held on January 13th with Wilson, Pope, Scriber, and Tina Snyder, the personnel director, in attendance. Wilson was asked why she was working at home, why she did those particular projects, and why she submitted a time sheet for holiday pay. Wilson responded that in June she had asked Pope if she could work at home the last two weeks of December. She did not discuss with Pope in June or at any time what work she would accomplish while at home. She stated that she wanted to have the federal regulations in her laptop so that she could have easy reference to them when she was out in the field. She said that by typing them into her computer she felt that she was strengthening her knowledge of the regulations, and that it would make her a better employee. She stated that she did not recall another employee offering to loan her a disk containing the regulations to download to her laptop. She stated that she had started to reformat the purchase requisition form before she left on leave. She stated that she submitted a time sheet for holiday pay because she didn't feel she was on leave during the last two weeks of December, because she was getting paid for work. Therefore, even though the company handbook stated the policy that "holiday pay will not be awarded to staff members on unpaid leaves of absence," Wilson did not feel that this exclusion applied to her.

Some time previously, Bruce Hirschler, an employee in the aging division, had been authorized to work while attending his dying father in Kansas. Scriber had reduced the agreement to writing after Hirschler and his supervisor requested the arrangement in order for Hirschler to continue to fulfill specific responsibilities on a time-sensitive project. Wilson did not obtain written authorization to work at home. Neither she nor Pope met with Scriber to discuss it.

Pope did not recall having given Wilson authorization to work at home while on maternity leave. Pope had not had other employees in the finance division work at home while on leave. KIPDA determined that Wilson's time sheets contained entries for unauthorized work and entries for holiday hours for which she was not entitled to payment. KIPDA was not satisfied with Wilson's explanation for her actions, and viewed this as an attempt to manipulate the agency out of monies. Scriber made the decision to request her resignation in lieu of discharge. Wilson was paid for the 27.5 hours of work, although the projects she chose to engage in had not been approved and were viewed as of no value to KIPDA. Wilson was not paid for the holiday hours. A second meeting was held on January 15, 1998 at which time Wilson was told that because of the incidents with the time sheets, KIPDA had lost faith in her as an employee, and offered her the opportunity to resign. Wilson accepted and signed the resignation papers which had been prepared for her.

In order to establish a prima facie case of retaliation for the exercise of her rights under the FMLA or Kentucky Civil Rights Act, Wilson must show that 1) she availed herself of a protected right under the act; 2) she was adversely affected by an employment decision; and 3) that there is a causal connection between the two actions. Morgan v. Hilti, Inc., 108 F.3d 1319, 1325 (10th Cir. 1997); Richmond v. Oneok, Inc., 120 F.3d 205, 208 (10th Cir. 1997); Boyd v. Harding Academy, 88 F.3d 410 (6th Cir. 1996).

Wilson has met the first two prongs, but has failed to establish that there is a causal connection between her taking maternity leave and her discharge from her employment. Wilson herself stated that she was not discharged for taking maternity leave, but rather for working at home while on maternity leave. She does not contend that she was entitled to more paid leave time. She was granted all the leave she requested, including the two unpaid weeks of leave that she requested.

Nevertheless, Wilson contends that her discharge was retaliatory based on the fact that it occurred a mere ten days after she returned to work, that she received a chilly reception from Scriber and that he had made an offensive remark concerning her pregnancy to her husband nine months earlier. This is an insufficient showing from which to establish a prima facie case of retaliation. The causal link between protected rights and adverse employment action may, in some instances, be shown through evidence that the "discharge took place on the heels of protected activity," Dey v. Colt Construction and Development Co., 28 F.3d 1446, 1458 (7th Cir. 1994). However, in this instance the submission of the time sheets and the subsequent investigation into their legitimacy occurred prior to and immediately upon Wilson's return to work, thus intervening in the sequence of events. See, ie., Hite v. Biomet, Inc., 38 F. Supp.2d 720 (N.D.Ind. 1999). Wilson returned and worked during the ten day period in which the time sheet issue was being investigated. Under these facts, the temporal proximity between her leave and the discharge does not alone establish a prima facie case of retaliation.

The single, isolated comment made outside of the workplace nine months prior to the discharge and unrelated to the discharge decision-making process is not probative as direct evidence of pregnancy discrimination. Geir v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996). The change in the attitude of Scriber perceived by Wilson similarly adds little to the prima facie case. Wilson has not alleged that she was subjected to a hostile work environment upon her return to work. Aside from no longer finding Scriber to be friendly toward her, Wilson does not allege that the conditions of her employment changed in any manner.

The timing of Wilson's discharge, without more, is insufficient to make out a prima facie case that she was discharged in retaliation for taking maternity leave. "Mere conjecture that the employer's reason [for discharge] is pretext . . . will not defeat a motion for summary judgment." Richmond, 120 F.3d at 209, citing, Archuleta v. Colorado Department of Institutions, 936 F.2d 483, 486 (10th Cir. 1991).

Wilson also alleges that she was treated less favorably in the conditions of her employment than a male employee, Bruce Hirschler. In order to establish that discrimination occurred, Wilson must show that she and Hirschler were similarly situated. See, ie. Ensley-Gaines v. Runyon, 100 F.3d 1220, 1224 (6th Cir. 1996):

In arriving at this conclusion, the district court applied the principles enunciated by this court in Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992). In order to demonstrate a comparable, non-protected individual received more favorable treatment:

the plaintiff must show that the "comparables" are similarly-situated in all respects. Thus, to be deemed "similarly-situated", the individual with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subjected to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of it. Id. at 583.

Wilson and Hirschler were in different divisions, had different supervisors, and held different positions with different responsibilities. It is undisputed that Hirschler was involved in a large protracted project at the time of his father's illness which required that he continue to work while out of the office. Hirschler and his supervisor approached Scriber about the problem and proposed an arrangement for him to work from his laptop while attending his father, an agreement which was then put in writing. There has been nothing presented that is factually similar about Wilson's and Hirschler's circumstances which would establish a prima facie case of discrimination on the basis of pregnancy.

Were this court to find that a prima facie case had been shown by Wilson under either the FMLA or the Kentucky Civil Rights Act, we would conclude that KIPDA had offered a legitimate non-discriminatory reason for her termination. Issues of employee honesty are legitimate employer concerns and may form the basis for discharge. See, Mechnig v. Sears Roebuck Co., 864 F.2d 1359 (7th Cir. 1988). KIPDA must establish that its "honest belief" was "reasonably based on particularized facts." Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). Wilson admits that she turned in the time sheets for work which she never discussed with anyone at KIPDA. Although she was aware that employees on unpaid leave were not eligible for holiday pay, she unilaterally determined that she was not on unpaid leave and thus was entitled to claim that time. She did not discuss her leave status with her supervisor or payroll director before submitting her time sheets. Wilson states that she discussed working at home with Pope. However, she has not controverted Pope assertion that he does not remember having that discussion with her in June. Nothing was put in writing. Nothing was discussed with Scriber who was the only individual with the authority to authorize such an arrangement for an employee on leave. No projects were approved for Wilson's work at home. Even if Pope, in fact, led Wilson to believe that she had authorization to work at home and subsequently failed to recall the discussion, the discharge was still based upon a legitimate, non-discriminatory reason under the facts as KIPDA believed them to be. KIPDA investigated the incident and gave Wilson an opportunity to explain her actions. Errors in judgment or honest mistakes by employers, although regrettable, are not actionable under the FMLA or the Kentucky Civil Rights Act. Even if such an error occurred, it is not actionable discrimination. Chappell v. GTE Products Corp., 803 F.2d 261, 266 (6th Cir. 1986) ("the soundness of an employer's business judgment" is not actionable).

Wilson cannot establish that the reason articulated by KIPDA for Wilson's termination was offered as a pretext for retaliation. At best, Wilson's testimony suggests that Scriber was not happy about her pregnancy, that Pope was forgetful, and that she was discharged for working during her leave. The evidence she has garnered fails to offer any basis for finding that the articulated reason for her discharge was pretextual. Pierce v. Commonwealth Life Insurance Co., 40 F.3d 796, 804 (6th Cir. 1994) ("[E]stablishing that the employer's reason was a pretext requires that a plaintiff do more than simply impugn the legitimacy of the asserted justification; in addition, the plaintiff must also adduce evidence of the employer's discriminatory animus.").

For the reason set forth above, the motion of KIPDA for summary judgment will be granted. A separate order will be entered this date in accordance with this opinion.

This 1st day of March, 2000.