FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 31, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JEREMY DIDIER,
Plaintiff - Appellant,
v. No. 14-3125
(D.C. No. 2:13-CV-02046-JWL)
ABBOTT LABORATORIES; ABBOTT (D. Kan.)
LABORATORIES, INC.; ABBOTT
PRODUCTS, INC.; ABBVIE, INC.,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________
From 2002 until her termination in 2012, Jeremy Didier, a woman, was an
employee of Abbott Laboratories (“Abbott”) and its predecessor Solvay
Pharmaceuticals (“Solvay”). Didier began working at Solvay as a sales
representative, and by 2010 she had been promoted to the position of District
Manager. Her promotion brought with it a new supervisor, K. Byron Rex. Didier
contends that while they worked together Rex made numerous comments about her
ability to balance caring for her young children with her work responsibilities,
comments he never uttered to male employees with young children.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Three events form the backdrop of this case. First, in 2011 Didier requested
and was granted intermittent leave under the Family Medical Leave Act (“FMLA”) to
take her two young children to medical and therapy appointments for a few hours
each week. Second, later in 2011, Didier submitted what the company considered an
inappropriate reimbursement request for gifts to the sales representatives she
supervised. She had been counseled against making such requests, and Abbott’s
continued concern over problems in her expense reports led it to launch an
investigation. Third, and concurrent with this investigation, Rex expressed concern
over other reimbursement requests Didier submitted. Abbott’s numerous concerns
regarding Didier’s reimbursement requests led it to launch a second investigation that
culminated in Didier’s termination in March 2012.
After her termination, Didier filed charges with the Equal Employment
Opportunity Commission (“EEOC”). She alleged sex and religious discrimination,
interference with her FMLA rights, FMLA retaliation, and other violations not
pursued on appeal. Didier eventually received a right-to-sue letter and filed suit in
federal district court. She alleged claims similar to those she had brought before the
EEOC.
After the parties conducted discovery in district court, Abbott filed a motion
for summary judgment on all claims. Without a hearing, the district court granted
summary judgment in Abbott’s favor. Didier now appeals the district court’s grant of
summary judgment on three of the five claims she raised below: (1) sex
2
discrimination under Title VII; (2) FMLA interference; and (3) FMLA retaliation.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND1
A. Factual Background
From 2002 until 2010, Didier was an employee of Solvay. After Abbott
acquired Solvay in 2010, Didier became an employee of Abbott and remained as such
until her termination on March 8, 2012. During her employment with Solvay/Abbott,
Didier was promoted three times, her last position being Kansas City District
Manager. Her final promotion to District Manager was approved by the man who
became her direct supervisor, K. Byron Rex.2
Before turning to Didier’s termination, we first lay out a few necessary details
regarding the background of her employment and her relationship with her
supervisor. The first details pertain to her supervisor. Didier contends that Rex has a
history of making inappropriate comments regarding his views on the role of women
in society and in the workplace. Didier highlights the following: (1) in 2001, Rex
voiced his opinion that young women with children should stay home, suggesting to a
female sales representative who resigned after these comments that she should
1
As this matter is before us on summary judgment, we state the facts in the
light most favorable to Didier, the nonmoving party. See Bohn v. Park City Grp.,
Inc., 94 F.3d 1457, 1460 (10th Cir. 1996).
2
There is some dispute between the parties over the exact selection process,
and in particular whether Rex selected Didier “from all of the other sales
representatives in the district.” Regardless, there is no dispute that her promotion was
subject to his approval.
3
welcome the opportunity to remain home with her children; (2) in 2009, Rex
questioned Didier during her district-manager interview about whether she could do
the job with four young children and a husband who worked full-time; (3) in 2009,
Rex urged Didier not to report a male employee who was making false and
disparaging comments about her, and then became angry at Didier after he was
reprimanded for giving that advice; (4) in 2010, Rex reported Didier for personal use
of a corporate credit card although he had failed to report his male subordinates for
similarly using their corporate cards for personal expenses despite their frequently
doing so; (5) in 2012, Rex instructed Didier to “focus on your faith and your family”
when she expressed worry for her job security during Abbott’s investigation of her,
and he repeatedly sought assurances from Didier throughout Abbott’s investigation
that her husband had a good job and that her family “would be okay” if she was fired;
(6) in 2012, during a discussion of a female sales representative, Rex mentioned to
Troy Petrick, a District Manager, that one way to get rid of employees was to turn
them in for expense-reporting violations; and (7) in 2012, after Didier’s termination,
Rex raised concerns with Terri Garrett, Didier’s successor as District Manager, about
the commitment of two high-performing female representatives to their work due to
their childcare responsibilities.3
The second pieces of necessary background concern Abbott and Solvay’s
reimbursement policies for food reimbursement and travel booking. Regarding food
3
Didier also notes that concerns about Rex’s attitude towards women in the
workplace eventually caused Garrett, also a woman, to leave Abbott.
4
reimbursement, Solvay had a written policy stating that employees could incur only
those travel and entertainment expenses that were reasonable and necessary to
conduct business: for meals, it offered ballpark figures of $15 for breakfast, $20 for
lunch, and $50 for dinner. Abbott’s policies and approval procedures are a bit more
detailed and are contained in its Travel & Entertainment (“T&E”) policy. The T&E
policy requires supervisor approval of all corporate expenses, prohibits
reimbursement for personal expenses, and disallows corporate reimbursement of
expenses incurred for anyone other than an Abbott employee (except for meals for
spouses required to attend an Abbott event). Abbott generally reimburses dinner
expenses only for employees traveling overnight on a business trip, but if an
employee is not traveling overnight on a business trip, the policy also reimburses
dinner when an employee arrives home late due to work if the employee annotates
such an expense in the explanation of her expense report.
Despite these clear policies, Didier maintains there were also certain unwritten
guidelines regarding travel and food expenses that were widely known and followed
by employees at both Solvay and Abbott. These included wide latitude regarding the
application of suggested amounts to food expenses, which she contends meant she
could apply that amount towards the cost of a meal that she ate either by herself or
with her family. Didier states that she frequently did this, and that Rex routinely
approved these expenses when he was her supervisor at both Solvay and Abbott.
Concerning travel booking, only Abbott’s policies are relevant here. Abbott
requires employees to book all travel through its authorized travel agency. If for
5
whatever reason an employee must book travel through an alternative channel, she
must submit a Travel Agency Exception Form together with her expense report for
corporate reimbursement. Among other requirements, this form requires that the
employee explain why she did not book her ticket through Abbott’s travel agency and
requires a signature from her supervisor.
Finally, given that two of Didier’s three claims before us concern her use of
FMLA leave, we provide background concerning Didier’s FMLA usage. In
November 2011, Didier began taking intermittent FMLA leave to take her two young
sons to therapy and medical appointments for a few hours each week. Rex and his
supervisor, Marty Comer, were aware of Didier’s FMLA leave. In 2012, Didier took
a few hours of such leave on January 9th, 12th, 18th, 20th, and 27th, as well as
February 6th and 10th.
We now turn to the key issues undergirding the claims before us. These began
in December 2011, when Didier sought reimbursement for gift baskets she had
purchased for members of her sales team. In April and May 2010, Abbott had
counseled Didier that such expenses were inappropriate for reimbursement. Abbott’s
Corporate Disbursement Department flagged this submission, causing Susan
Ballard—a Disbursement Analyst—to review more closely Didier’s recent
reimbursement requests. In her review, Ballard noted that Didier had frequently
submitted meals for reimbursement without an overnight stay and—based on these
irregularities—Ballard initiated an audit of the past two years of Didier’s
reimbursement requests. Ballard summarized these findings in a Corporate
6
Disbursement Case Report, which she submitted to Abbott’s Office of Ethics and
Compliance (“OEC”) for further investigation.4
Contemporaneous with this series of events, Rex was having his own issues
with Didier’s unrelated January 12, 2012, expense report. Specifically, Rex had two
concerns: (1) Didier had submitted a Travel Agency Exception Form without
obtaining his signature (Didier had instead written Rex’s name on the signature line
and noted that his signature was “on file”); and (2) Didier had submitted for
reimbursement a dinner on January 2, 2012 for her family in the amount of $53.53.
Regarding the first concern, Rex discussed with Didier her use of a method other than
Abbott’s designated travel agency to book travel and asked her to revise and resubmit
the form, which he eventually signed. Regarding the second, however, Rex had more
issues. He was alarmed both because January 2 was a company holiday on which
Didier would not have been traveling for work and because she had submitted an
expense for a family dinner. Upon confronting Didier about the family-dinner
expense, Rex said to Didier, “Please tell me we’ve not been paying for dinners for
your family all this time.” In response, Didier told Rex that he had approved family-
dinner expenses for years and that she believed these expenses complied with the
T&E policy. While conceding she had not worked on January 2, she also tried to
justify the family-meal expense by pointing out that she had an early flight the next
morning.
4
The OEC is responsible for ensuring compliance with Abbott’s Code of
Business Conduct (the “Code”).
7
After this discussion with Rex, Didier called Abbott’s Corporate Disbursement
Call Center to confirm her understanding of the T&E policy. She alleges that she
spoke with DeMario Hudson, a call center representative, and that Hudson told her:
(1) that she could claim an expense for a family meal at a reasonable amount as long
as she was traveling for at least five hours on the day of the meal, and (2) that her
manager had discretion to approve a family-meal expense incurred the night before
an early morning departure. Didier sent an email providing a brief summary of her
understanding of the call to Rex. But when Rex forwarded this email to Hudson for
confirmation, Hudson told him that Didier had inaccurately reported the substance of
their call. Rex then informed Didier that Hudson disagreed with her description of the
call. Didier contends that she again called Hudson and that he once again confirmed
her understanding of the T&E policy; she wrote Rex another email to this effect.
Hudson states that, although he and Didier discussed certain reimbursable expenses
in both phone calls, they never discussed the reimbursability of family-meal expenses
during either call and thus Didier’s emails to Rex contending otherwise were
inaccurate.
On January 24, 2012, Rex called Abbott’s Human Resources Department to
voice his concern over Didier’s January 12 expense report, both for her writing his
name on the signature line without his consent and for her claiming reimbursement
for the family-meal expense. He also expressed alarm that Didier had repeatedly
misrepresented the content of her discussions with Hudson. In response, Abbott
assigned Cherylle LaFleur, an Employee Relations Manager, to investigate Rex’s
8
concerns. In the course of her inquiry into Didier’s conduct, LaFleur spoke with
Ballard to ask some questions about general expense practices. During their
discussion, Ballard informed LaFleur that the Corporate Disbursement Department
had already separately looked into Didier’s expense practices and that Ballard had
submitted her findings to the OEC. LaFleur then separately submitted a New Case
Report to the OEC. LaFleur’s Case Report asked the OEC to investigate whether
Didier had: (1) falsified her supervisor’s signature/approval on a company document;
(2) submitted questionable expenses; and (3) intentionally misquoted Hudson in an
attempt to justify her questionable expenses.
The OEC assigned Julie Fendel, a Global Security Investigator, to examine the
allegations concerning Didier.5 Fendel independently investigated the evidence
regarding Didier’s expense reports and her writing of Rex’s name on her Travel
Exception Form. Fendel’s report concluded that Didier had incorrectly submitted
numerous family meals for reimbursement, that her excuse for doing so was “not
credible,” and that she had not followed appropriate procedures for submitting her
Travel Exception Form but had instead tried to circumvent the system by writing that
Rex’s signature was “on file.” Thus, Fendel’s investigation determined that Didier’s
conduct had violated at least two principles of the Code.
When an investigation determines that an employee has violated the Code,
Abbott’s policies require that the assigned Employee Relations Manager review the
5
Global Security is the division within Abbott that conducts investigations
into alleged loss incidents.
9
investigative findings on a case-by-case basis to determine the appropriate
disciplinary action. In Didier’s case, this responsibility fell to LaFleur. LaFleur
reviewed Fendel’s findings and, believing Didier’s actions to be egregious and to
include intentional attempts to falsify, recommended that Abbott terminate her
employment. After recommending a termination, an Employee Relations Manager
must under the policy discuss her reasons for recommending termination with the
business management team (Rex and his supervisor Comer) to ensure they support
the recommendation. Both Comer and Rex supported LaFleur’s decision, elevating
the recommendation further up Abbott’s bureaucratic hierarchy.6 On March 8, 2012,
after all necessary parties had signed off, Abbott terminated Didier’s employment.
B. Procedural Background
On August 13, 2012, Didier filed charges with the EEOC alleging sex and
religious discrimination, interference with her FMLA rights, FMLA retaliation, and
other violations not raised on appeal. On October 29, 2012, Didier received a right-
to-sue letter. On January 25, 2013, she filed the complaint underlying this appeal in
federal district court, alleging similar claims to those raised with the EEOC. After
discovery, Abbott moved for summary judgment on all claims. Without holding a
hearing, the district court granted summary judgment in Abbott’s favor. Didier now
6
Per Abbott’s policy, the recommendation to terminate Didier had to receive
the additional approval of Kristin Slatttery, Senior Employee Relations Manager,
Laura Hennessy, Senior Employee Relations Manager, Mindy Necci, Senior Business
Human Resources Manager, Kristyn Gamoke, Business Human Resources Director,
and Leanna Walther, Business Human Resources Vice President.
10
appeals the district court’s ruling regarding three of the five claims she raised below:
(1) sex discrimination; (2) FMLA interference; and (3) FMLA retaliation.
DISCUSSION
A. Standard of Review
We review de novo the district court’s grant of summary judgment. Manard v.
Fort Howard Co., 47 F.3d 1067, 1067 (10th Cir. 1995). In doing so, we view all of
the facts in the light most favorable to Didier as the non-moving party and draw all
reasonable inferences in her favor. See Bohn v. Park City Grp., Inc.,
94 F.3d 1457,
1460 (10th Cir. 1996). “Summary judgment is appropriate when there is no genuine
dispute over a material fact and the moving party is entitled to judgment as a matter
of law.” Russillo v. Scarborough,
935 F.2d 1167, 1170 (10th Cir. 1991).
B. Sex Discrimination
i. Direct or Circumstantial Evidence?
To prevail on a Title VII sex-discrimination claim, a plaintiff may offer either
direct or circumstantial evidence of discrimination. See Tabor v. Hilti, Inc., 703 F.3d
1206, 1216 (10th Cir. 2013). When she offers direct evidence, her claim proceeds
without being subject to the burden-shifting framework announced by the Supreme
Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–04 (1973). See also
Tabor,
703 F.3d at 1216. Direct evidence is evidence that, on its face, demonstrates
that the employment decision was reached for discriminatory reasons. Danville v.
11
Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002). In contrast, we have held that
workplace comments such as those attributed to Rex (1) cannot qualify as direct
evidence unless the plaintiff shows that the speaker had decision-making authority
and acted on his discriminatory beliefs, (2) do not qualify as direct evidence if the
context or timing is not closely linked to the adverse decision, and (3) cannot
constitute direct evidence if they can plausibly be interpreted in two different ways—
one discriminatory, one benign. See Tabor,
703 F.3d at 1216.
Didier claims that the district court should have considered Rex’s numerous
comments regarding women in the workplace as direct evidence of discrimination. She
contends that Rex’s comments reflected his animus toward her and related directly to his
decision to approve her termination. As support for treating Rex’s comments as direct
evidence of discrimination, she likens them to similar comments we treated as direct
evidence in Tabor. Didier further argues that, since she presented direct evidence of sex
discrimination, the district court improperly applied McDonnell Douglas’s burden-
shifting framework and erred in granting summary judgment on her sex-discrimination
claim.
Abbott believes the district court correctly determined that Didier could not
proceed under the direct-evidence standard to support her sex-discrimination claim. It
contends that Didier has presented no evidence demonstrating on its face that her status
as a woman with young children either caused Rex to report her violations or caused
LaFleur to terminate her employment. It points out that the crux of Didier’s evidence is a
12
number of statements Rex made unrelated to Didier, and that Didier cannot rely on these
statements as direct evidence.
Before Tabor, we consistently noted that discriminatory remarks in the workplace
based on sex stereotypes could not constitute direct evidence of sex discrimination unless
they demonstrated an existing policy that itself constituted discrimination. See, e.g., Heim
v. Utah, 8 F.3d 1541, 1546–47 (10th Cir. 1993); Ramsey v. City & Cty. of Denver,
907
F.2d 1004, 1008–09 (10th Cir. 1990). But in Tabor, we appeared to carve out a limited
exception to that rule. There, the decision-maker made the objectionable comments while
interviewing a woman for a promotion she later was denied, and the stereotypes invoked
by the decision-maker spoke directly to the plaintiff’s fitness to undertake the job for
which she was interviewing. Tabor,
703 F.3d at 1217. We held that the content of these
statements, the interview context in which they were made, and the temporal proximity of
the comments to the adverse employment decision directly linked these statements to the
decision not to promote.
Id. Thus, we concluded that these statements constituted direct
evidence of sex discrimination.
Id.
Unfortunately for Didier, the comments she alleges Rex made—while archaic and
unsuitable for the twenty-first century workplace—lack either the context, the temporal
proximity, or the clear discriminatory connotation sufficient to constitute direct evidence.
Considering them individually may help to clarify this conclusion. The first three
comments Didier points us to are: (1) in 2001, Rex expressed his opinion that young
women with children should stay home, and suggested to a female sales representative
who resigned following these comments that she should welcome the opportunity to
13
remain home with her children; (2) in 2009, Rex questioned Didier during her interview
for the District Manager position about her ability to do the job because she and her
husband worked full time and she had four young children; and (3) in 2009, Rex urged
Didier not to report a male employee who was making false and disparaging comments
about her, and then became angry at Didier when he was reprimanded for giving that
advice. Given that the initial investigation of Didier began in November 2011 and she
was fired in 2012, these earlier comments and actions lack sufficient temporal proximity
to Didier’s firing to amount to direct evidence of discrimination. Compare id. with Riggs
v. AirTran Airways, Inc.,
497 F.3d 1108, 1118 (10th Cir. 2007) (noting that there must be
some “direct link” between the discriminatory treatment and the termination decision,
including close temporal proximity, for the treatment to constitute direct evidence of
discrimination in the termination decision), and Stover v. Martinez,
382 F.3d 1064, 1074
(10th Cir. 2004) (listing cases, including one holding that a four-month period between
the protected activity and alleged discrimination lacked sufficient temporal proximity,
without more, to support an inference of causation). Similarly, the fourth incident Didier
highlights—Rex’s reporting Didier for personal use of a corporate credit card but failing
to report his male subordinates despite their also frequently using their corporate credit
cards for personal expenses—relates to an incident that occurred in 2010. And temporal
proximity also dooms the final comment Didier points us to—Rex’s raising concerns
with Terri Garrett, Didier’s successor as District Manager, about the commitment of two
high-performing female representatives to their work due to their childcare
responsibilities—because this comment occurred after Didier’s termination.
14
This leaves the comments Didier relates that are close in time to her termination—
(1) Rex’s instructing Didier to “focus on your faith and your family” when she expressed
worry for her job during Abbott’s investigation of her and repeatedly seeking assurances
from her throughout Abbott’s investigation that her husband had a good job and that her
family “would be okay” if she was fired; and (2) during a discussion about a female sales
representative, Rex’s mentioning to Troy Petrick that one way to get rid of an employee
was to turn them in for expense-reporting violations. The comments Rex made to Didier
during Abbott’s investigation of her fail as direct evidence because they could be
interpreted as either discriminatory or benign and thus cannot constitute direct evidence.
See Tabor, 703 F.3d at 1216. But Rex’s comment to Petrick—made while Didier was
under investigation—provides the closest call. While both the content and the temporal
proximity appear sufficient here for the comment to constitute direct evidence, Rex did
not make the comment in reference to Didier. Because of that, we conclude that the
comment provides no direct evidence of discrimination but instead significant
circumstantial evidence of Rex’s discriminatory motive. For all of these comments, then,
Didier must rely on McDonnell Douglas’s burden-shifting framework.
ii. Application of the McDonnell Douglas Framework
As noted above, we use the three steps detailed in McDonnell Douglas when
considering a sex-discrimination claim based on circumstantial evidence. This framework
requires that we ask three questions in this order: (1) has the plaintiff established a prima
facie case of discrimination?; (2) has the defendant offered a legitimate,
nondiscriminatory reason for the employment action?; and (3) assuming the defendant
15
has offered such a reason, can the plaintiff produce evidence that the stated reason is a
mere pretext for discriminatory intent? Daniels v. United Parcel Serv., Inc., 701 F.3d
620, 627 (10th Cir. 2012). We have held that the burden on both parties in the first two
steps is relatively mild. E.g., Orr v. City of Albuquerque,
417 F.3d 1144, 1152 (10th Cir.
2005) (noting that the prima facie case is “not onerous”). A plaintiff satisfies the prima
facie burden by merely demonstrating that she was part of a protected class, that she
suffered an adverse employment decision, and that her employer did not eliminate her
position after her termination. Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220,
1228–29 (10th Cir. 2000). Similarly, the defendant’s burden on the second step is one of
production, not persuasion, and we have characterized this burden as “exceedingly light.”
Carter v. Pathfinder Energy Servs., Inc.,
662 F.3d 1134, 1149 (10th Cir. 2011) (quoting
E.E.O.C. v. C.R. England, Inc.,
644 F.3d 1028, 1043 (10th Cir. 2011)).
Here, Abbott does not appear to dispute that Didier met her burden on the first
prong, but Didier contests that Abbott has met its burden on the second prong. Didier’s
argument on this score, however, appears to be merely that Abbott has not offered a
legitimate reason because its proffered reasons—that Didier falsified an expense report
form and submitted numerous improper expenses for reimbursement—should fail. Her
rationale behind this assertion is that all such expenses were approved by Rex and there
were only a few instances of her seeking reimbursement for family meals. This is an
argument more about the wisdom of Abbott’s decision than whether its stated reason is
legitimate; given the “extremely light” burden on Abbott at this stage, we find this
16
argument unavailing. Since we believe both parties have fulfilled their preliminary
burdens here, we shift our focus to the third inquiry required under McDonnell Douglas.
In McDonnell Douglas’s third step, evidence of pretext may take a variety of
forms. These include evidence that: (1) the defendant’s stated reason for the action is
false; (2) the defendant acted contrary to a written company policy prescribing the action
to be taken under the circumstances; (3) the defendant has shifted rationales for the
adverse employment action; or (4) the defendant has treated similarly situated employees
who committed acts of comparable seriousness differently. Kendrick, 220 F.3d at 1230;
see also Crowe v. ADT Sec. Servs., Inc.,
649 F.3d 1189, 1196–97 (10th Cir. 2011).
Didier argues that she has provided ample evidence of pretext. She highlights that
she was not treated the same as many similarly situated male employees who were not
dismissed for violations of company rules of comparable seriousness. Didier disputes the
district court’s determination that none of these employees were similarly situated and
that “no reasonable jury could draw an inference of discrimination based on Abbott’s
treatment of [these] individuals.” Didier also notes that she provided evidence of pretext
beyond the similarly situated male employees, such as Rex’s discriminatory comments.
Abbott contends that Didier’s evidence fails to establish pretext. It notes that,
when determining whether a reason is pretextual, we must look at the facts as they appear
to the person making the decision. Abbott believes all of the relevant decision-makers in
Didier’s cases were unbiased in reaching their conclusions that her conduct warranted
termination. In addition, it contends that Didier’s claim that Rex acted on a belief that
mothers with young children should not be in the workplace is “pure speculation and
17
unsupported by admissible evidence.” Further, Abbott agrees with the district court that
Didier failed to identify similarly situated employees who were treated more favorably
than she was treated.
Didier’s assertions of pretext on the part of Abbott, then, focus on two distinct
groups of evidence: (1) evidence of Abbott’s different treatment of similarly situated
male employees; and (2) Rex’s discriminatory comments. We address each in turn to
illustrate why neither demonstrates the pretext necessary to overcome summary judgment
in favor of Abbott.
Didier points to evidence of at least four other similarly situated male employees
whose discipline she claims Abbott handled differently than her own. The district court
found that these employees were either: (1) not similarly situated to Didier; or (2) did not
commit acts of comparable seriousness to Didier’s. We agree, and we therefore pause to
consider each of these employees in turn.
The first employee Didier points to is Rex, who was not terminated despite having
approved Didier’s questionable expense reports. The district court determined that Rex
could not be considered similarly situated to Didier because he was her supervisor. It
relied on language from our decision in Jones v. Denver Post Corp., 203 F.3d 748, 752–
53 (10th Cir. 2000), which stated that “Canino was one of Jones's supervisors and
therefore cannot be deemed similarly situated in a disciplinary matter . . . .” The district
court was correct: Jones forestalls Didier’s argument that Rex was similarly situated.
Didier next points to Ken Davis, a male employee who she contends was not
terminated even though he used his corporate card for personal expenses. Here, the
18
district court found that Davis’s conduct was not of comparable seriousness to Didier’s
because, while Davis used his corporate card for personal expenses, he paid American
Express for those expenses himself rather than attempting to have Abbott pay for them.
Didier disputes this finding, contending that her affidavit alone—without any additional
evidence—demonstrates that Davis had also sought reimbursement for improper
expenses. The district court found that the evidence Didier presented to suggest that
Davis had sought inappropriate reimbursement lacked foundation and was inadmissible,
and Didier presents no argument to suggest that this evidentiary determination was an
abuse of discretion. See Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131
F.3d 874, 894 (10th Cir. 1997) (noting that “[l]ike other evidentiary rulings, we review a
district court’s decision to exclude evidence at the summary judgment stage for an abuse
of discretion”). Without any admissible evidence that Davis too asked for reimbursement
for improper expenses, we agree with the district court’s determination that his conduct
was not of comparable seriousness to Didier’s.
The comparable seriousness prong also defeats Didier’s arguments regarding T.J.
Brinkerhoff. Brinkerhoff hired his brother-in-law, but Abbott did not terminate
Brinkerhoff even though this hiring violated Abbott’s policy prohibiting an employee
from hiring his or her relative. Abbott’s investigation concluded that Brinkerhoff did not
know about Abbott’s employment-of-relatives policy and further that Brinkerhoff
believed that hiring his brother-in-law would not violate any such policy because they
lacked a blood relation. While Didier points out that this violation was initially
categorized as being within the same seriousness level as her violation, Abbott and the
19
district court are correct that the comparable-seriousness prong looks to how the offenses
are characterized at the conclusion of an investigation—when the decision on appropriate
discipline is made—and not at the seriousness of the initial, unfounded accusation. Since
Abbott’s investigation found Brinkerhoff’s conduct to be accidental—while it found
Didier’s to be intentional—it cannot be said that the company considered his violation to
be of comparable seriousness to Didier’s when it disciplined him.
This brings us to the final employee Didier points to, Greg Toole. As the district
court noted, Toole was similar to Didier in many respects. Abbott determined that Toole
had underestimated the personal mileage on his car and therefore owed the company
nearly $300 in restitution. As with Didier, Global Security determined that this conduct
violated principles 5 and 9 of the Code. And, as with Didier, Abbott’s HR department
ultimately recommended Toole’s termination—a recommendation Rex supported. Unlike
Didier, however, Toole was not terminated because Comer and Susan Niver-Percy, the
Employee Relations Manager responsible for Toole’s case, found that Toole had been
following accepted practice at Solvay and may not have received adequate training on
Abbott’s policies. In Didier’s case, by contrast, no one other than Didier contended that
the practice she was following regarding family meals had been accepted at Solvay,
and—despite repeated opportunities to point to others who believed as she did—Didier
could provide no one else who shared her understanding. This distinction makes Toole
not similarly situated to Didier in all relevant aspects. See MacKenzie v. City & Cty. of
Denver, 414 F.3d 1266, 1277 (10th Cir. 2005) (employees not similarly situated if
20
“differentiating or mitigating circumstances” distinguish their conduct or the employer’s
treatment of them for it).
Without being able to point to any similarly situated employees, Didier’s evidence
of pretext must rely on Rex’s discriminatory comments. But can Rex’s comments support
an inference of discrimination on Abbott’s part? Since he was not the final decision-
maker over Didier’s employment, the answer must be no. In Macon v. United Parcel
Service, Inc., 743 F.3d 708, 715 (10th Cir. 2014), we held that “if the supervisor’s ability
to make employment-related decisions is contingent on the independent affirmation of a
higher-level manager or review committee, we focus on the motive of [the] final decision
maker.” Here, Fendel independently recommended Didier’s termination and—while Rex
signed off on this recommendation—so too did six other individuals with various
positions in Abbott’s managerial hierarchy. While Abbott’s corporate structure causes
some confusion about who was the final decision-maker, we are confident that it was not
Rex. Didier has presented no evidence pointing to the discriminatory motives of any of
the other individuals involved in the decision to terminate her, and absent such evidence
her claim must fail at the third stage of the McDonnell Douglas analysis.
Didier counters that Abbott should still be liable under a “cat’s paw” theory of
liability. This assertion, too, is unavailing. To succeed under a “cat’s paw” theory of
liability, a plaintiff must show that “the decisionmaker followed the biased
recommendation [of a subordinate] without independently investigating the complaint
against the employee.” English v. Colo. Dep’t of Corrs., 248 F.3d 1002, 1011 (10th Cir.
2001) (alterations in original) (quoting Stimpson v. City of Tuscaloosa,
186 F.3d 1328,
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1332 (11th Cir. 1999)). We have required that “a plaintiff must establish more than mere
‘influence’ or ‘input’ in the decisionmaking process. Rather, the issue is whether the
biased subordinate’s discriminatory reports, recommendation, or other actions caused the
adverse employment action.” E.E.O.C. v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d
476, 487 (10th Cir. 2006).
Were Didier to suggest discrimination on the part of Fendel in conducting her
investigation, perhaps a “cat’s paw” theory would have more traction. But because her
assertions of discrimination focus solely on Rex, we need only look to Rex’s role in the
disciplinary process. Even if Rex’s decision to report Didier was motivated by
discrimination, we conclude that Fendel’s exhaustive inquiry into Didier’s expense-
records history would constitute the kind of independent investigation sufficient to shield
Abbott from liability. Further, even before Rex chose to report Didier, Ballard had
already initiated another inquiry into Didier’s expense reports. Quite simply, we cannot
say that Rex’s actions caused Didier’s termination.
For these reasons, we affirm the district court’s grant of summary judgment on
Didier’s sex discrimination claim.
C. FMLA Claims
Didier’s other two claims relate to her taking of FMLA leave. First, Didier claims
that Abbott illegally interfered with her FMLA leave by terminating her while she was
still occasionally taking intermittent FMLA leave to attend medical and therapy
appointments for her two young sons. Second, she claims that her termination was in
22
retaliation for her taking of FMLA leave. Because these claims look to similar factors, we
consider them together here.
First, we consider the standards for an FMLA-interference claim. The FMLA
provides that an employer may not “interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1)
(2015). An employer’s violation of this provision, regardless of intent, gives rise to an
FMLA-interference claim. Brown v. ScriptPro, LLC,
700 F.3d 1222, 1226–27 (10th Cir.
2012). To establish an FMLA-interference claim, a plaintiff must demonstrate that she
was entitled to FMLA leave, that some action by her employer interfered with her right to
take FMLA leave, and that the employer’s actions were related to the plaintiff’s exercise
of FMLA rights.
Id.
Regarding FMLA retaliation, Didier’s claim is subject to the now-familiar
McDonnell Douglas burden-shifting analysis. Metzler v. Fed. Home Loan Bank of
Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006). Again, this framework requires that we
ask, in order, whether: (1) the plaintiff has established a prima facie case of
discrimination; (2) the defendant can offer a legitimate, nondiscriminatory reason for the
employment action; and (3) assuming the defendant can offer such a reason, the plaintiff
can produce evidence that the stated reason is a mere pretext for discriminatory intent.
Id.
Here again, it seems both parties have fulfilled their relatively mild burdens on the first
two prongs, and our focus is properly on the third.
Both of Didier’s FMLA claims, then, come down to whether she can produce
some evidence that Abbott’s termination decision was either: (1) related to her choice to
23
exercise her FMLA rights, Brown, 700 F.3d at 1226; or (2); in fact caused by Abbott’s
desire to discriminate against Didier for the exercise of her FMLA rights despite Abbott’s
stated, nondiscriminatory reasons for her termination, Metzler,
464 F.3d at 1171. While
slightly different, at a bare minimum both of these standards require Didier to show,
based on the evidence in the record, that there is at least some question whether Abbott
fired her for taking FMLA leave. Unfortunately for Didier, she cannot do this. The
unrefuted evidence on the record is that, of those who had to approve Didier’s
termination, only Comer and Rex knew she was taking FMLA leave. Neither Fendel,
who independently investigated the claims against Didier, nor LaFleur, who made the
initial recommendation to terminate Didier based on Fendel’s investigation, nor any of
the five decision-makers other than Comey and Rex—who all had to approve Didier’s
termination—were even aware that Didier was taking FMLA leave.
Since Didier has presented no evidence that either the independent investigation
leading to her termination, or the termination decision itself, was motivated by the
exercise of her rights under the FMLA, both her FMLA interference and her FMLA
retaliation claims must fail. We therefore affirm the district court’s grant of summary
judgment on both of these claims.
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CONCLUSION
For the reasons stated herein, we AFFIRM the district court’s grant of summary
judgment to all claims raised in this appeal.
ENTERED FOR THE COURT
Gregory A. Phillips
Circuit Judge
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14-3125 – Didier v. Abbott Laboratories
HARTZ, Circuit Judge, concurring:
I join the opinion of Judge Phillips, which correctly analyzes this case under
current law. But this is another good example of the unnecessary complexities arising
from our being tethered to the outdated McDonnell Douglas framework. Other than for
employment-discrimination cases, our review of a summary judgment would be simply to
determine whether there was sufficient admissible evidence to support each of the
elements of the plaintiff’s claim. We would not need to spend time on the artificial
distinction between direct and indirect evidence or to worry about going through the
progressive steps of a formalistic framework. That process adds nothing to the fairness,
reliability, or predictability of our decisions. The McDonnell Douglas framework may
have once served a purpose when employment-discrimination claims were decided in
bench trials before judges whose sensitivity to discrimination was in question. Making
judges go through those steps perhaps assisted deserving plaintiffs. Now, however, that
framework hardly helps plaintiffs. Rather, it imposes artificial barriers in the way of
meritorious suits. And even when the ultimate result is proper, the process unnecessarily
consumes the time and effort of attorneys and judges alike. Everything that is useful in
the framework—such as the enumeration of factors to consider in determining an
employer’s motive—could easily be incorporated into the process that we use to evaluate
summary judgments in other areas of the law.
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