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Roys v. Upper Iowa University

United States District Court, N.D. Iowa, Eastern Division

August 17, 2017

CAROLYN ROYS, Plaintiff,
v.
UPPER IOWA UNIVERSITY, Defendant.

          ORDER

          KELLY K.E. MAHONEY UNITED STATES MAGISTRATE JUDGE.

         A few months after becoming sick and taking time off under the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, Plaintiff Carolyn Roys was fired by her employer, Defendant Upper Iowa University (the University). She initiated this lawsuit, bringing FMLA claims of entitlement (Count I) and discrimination (Count II).[1] The University now moves for summary judgment on both of Roys' claims. Doc. 17. Roys concedes that the University is entitled to summary judgment on her entitlement claim but resists the motion with respect to her discrimination claim. Doc. 24. I grant the motion (Doc. 17). I also deny Roys' related motion to strike (Doc. 27) and deny the University's motion in limine (Doc. 29).

         I. BACKGROUND

         The following facts are recited in the light most favorable to Roys, the nonmoving party. Roys began working for the University in October 2010. Def. SOF ¶ 1; Pl. Resp. SOF ¶ 1.[2] In October 2014, she was promoted to Director of Academic Success, which was the position she held upon her termination. Def. SOF ¶ 3; Pl. Resp. SOF ¶ 1. When Roys was promoted, her previous position was not replaced, and she kept some of the duties she had held previously-including sending out emails and letters for the Academic Review Committee (ARC) program and serving as the liaison between the University and the Federal Bureau of Investigation (FBI) when the FBI was conducting background checks of students.[3] Def. App. 45. As the Director of Academic Success, Roys also advised students and monitored at-risk students as part of the “Support Our Students” (SOS) program. Def. App. 45, 47-48. At first, Roys was a one-person department, although the previous Director of Academic Success had supervised two employees (one of which was Roys) who could assist with some of the functions of the position. Pl. App. 34, 76 ¶ 7. Eventually, a retention specialist position was created to give Roys some help with the SOS and ARC programs. Pl. App. 78 ¶ 13. That position was filled by Deena Serra, who worked with Roys for six months before leaving the University in May (prior to Roys taking FMLA leave). Pl. App. 64, 78 ¶¶ 13-14.[4]

         Another employee, Jean Merkle, served as co-chair of the SOS program along with Roys. Pl. App. 80 ¶ 22. The SOS program involved an automated system that faculty members or others could use to send an alert when they were concerned about a student. Def. App. 47. Merkle and Roys would receive the alert and notify the SOS committee of the problem. Id. The SOS committee would consider the issue, and then one of the committee members would be responsible for reaching out to the student. Pl. App. 76-77 ¶ 8; Def. App. 38, 47.

         On May 8, 2015, Roys had surgery on a perirectal abscess that left her temporarily unable to work. Def. SOF ¶¶ 4-5; Pl. Resp. SOF ¶¶ 1-2. On May 21, 2015, she signed a form requesting “[f]ull [d]ay” FMLA leave from May 8, 2015, to an unknown date in the future. Def. App. 97-98. Her FMLA leave was approved on June 4, 2015. Id. Denise Ney, the benefits manager for the University, gave Roys a form outlining her FMLA rights, indicating that Roys would be required to use all available paid leave concurrently with leave taken under the FMLA and that she was entitled “to 12 weeks of unpaid leave in a 12-month period calculated as . . . a ‘rolling' 12-month period measured backward from the date of any FMLA leave usage.”[5] Def. App. 21-22.

         On July 20, 2015, Louise Scott, Roys' boss, sent an email to Roys, reminding her that she would run out of covered time off under the FMLA at the end of the month and instructing her “to have a serious conversation with [her] current [medical] provider as to when [she] can return to work.” Pl. App. 54. Shortly thereafter, on July 27, 2015, Roys returned to work. Def. SOF ¶ 7; Pl. Resp. SOF ¶ 1. Ney sent Roys a letter dated August 24, 2015, stating that she “ha[d] exhausted 448 hours of FMLA leave out of a maximum of 480 hours” and that she had “32 hours of FMLA hours to use from now until May 7, 2016.” Def. App. 28.

         While Roys was on FMLA leave, the vacant retention specialist position previously held by Serra was transferred to another department, and it was “not replaced” in Roys' department. Pl. App. 64, 78 ¶¶ 13-14. The retention specialist position had not been filled as of October 13, 2015. Pl. App. 64. It is not clear whether it was filled at the time of Roys' termination-at oral argument, Roys' counsel stated that he believed it had been filled but pointed to no evidence of that fact, and the University's counsel was unsure. It was planned that the retention specialist, once hired, would still assist Roys with the SOS program, despite working in another department: an email from Roys describes the transfer as a “shift in reporting, ” and Ney's notes from a meeting with Roys on October 6, 2015, reflect that Roys understood the retention specialist would help with the SOS program once hired. Pl. App. 64; Def. App. 38. The retention specialist would no longer assist Roys with her duties related to the ARC program, however. Pl. App. 65.

         An employee in a different department had handled Roys' responsibilities related to the ARC program while she was on FMLA leave, and that employee continued to do so even once Roys returned. Pl. App. 41. When that employee transferred to another department, however, the ARC program became Roys' responsibility once again. Id.

         After she returned from FMLA leave, Roys continued to miss work intermittently for reasons unrelated to her abscess, and Scott and Ney began keeping track of when Roys was not at the office. Pl. App. 82 ¶ 27. On July 30, 2015, Roys had a doctor's appointment in the morning and arrived to work late. Def. App. 57-58. From August 5 through 8, Roys went on vacation, and later, on August 24, an employee with the payroll office emailed Roys to ask if she had been out for vacation, noting that Roys had no vacation time and that her paycheck would need to be adjusted to reflect unpaid leave. Pl. App. 53. Roys also missed work on August 14, 2015. Def. SOF ¶ 10; Pl. Resp. SOF ¶ 1.

         On August 31, 2015, University employees were informed by email of a campus-wide reorganization. Pl. App. 86 ¶ 45. According to Roys, she did not receive the email, and she was not included on the organizational chart. Id. As part of the reorganization, which officially took effect on October 1, 2015, Janet Shepherd became Roys' new supervisor. Pl. App. 79 ¶ 17.

         During the first half of September, Roys missed three full days and five partial days of work. Def. SOF ¶ 10; Pl. Resp. SOF ¶ 1. On September 22, 2015, Ney sent Roys a letter, asking whether her absences were due to the same serious medical condition as before or a new condition, noting that the University needed to determine whether the absences were entitled to FMLA protection. Def. App. 29. Ney further advised “that as of August 31, 2015, [Roys] ha[d] 32 hours of FMLA time, 8 hours of accrued sick time, and 13.34 hours of accrued vacation time remaining” (Roys accrued 8 hours of sick leave and 13.34 hours of vacation time every month). Id.; Pl. SOF; Def. Resp. SOF ¶ 5; Pl. App. 7-8. Because Roys had only one day of paid vacation to cover the three September absences, her paycheck was reduced to reflect two days of unpaid leave. Pl. App. 56.

         Also in September, the SOS web form stopped working (faculty used the web form to inform the SOS committee that a student was having problems.). Def. App. 70-71. Merkle and Roys worked with the information technology (IT) department to resolve the problem and manually checked SOS submissions in the meantime. Id. Later, on October 4, 2015, a professor emailed Shepherd “a write-up of [his] concerns about” Roys' department, one of which had to do with the problems with the SOS form. Def. App. 89. He also noted that Roys had failed to call him back after he left a voicemail seeking a student's contact information. Id.; Def. App. 71.

         An email dated September 28, 2015, between Ney and Shepherd, reflects that they were planning to place Roys on a Performance Improvement Plan. Def. Supp. App. 120. On Thursday, October 1, 2015, Roys asked to meet with Shepherd about a few areas of concern. Pl. App. 34. Shepherd responded that she would set up a time sometime in the next week, since she was out of the office the next day. Id. On the morning of Monday, October 5, 2015, Roys emailed Shepherd to inform her that her abscess had returned and that she would be working from home because her daughter was sick. Pl. App. 34. The next day, on October 6, Shepherd and Roys met, along with Ney from Human Resources. Def. SOF ¶ 29; Pl. Resp. SOF ¶ 24. Shepherd told Roys that she had not been performing her job duties related to the ARC and SOS programs satisfactorily and that she had thirty days to improve, as outlined in a Performance Improvement Plan. Def. App. 31-32. Specifically, the Performance Improvement Plan stated that Roys needed to notify faculty and the IT department immediately if the SOS web form was not working and imposed a twenty-four hour deadline for Roys to notify faculty and the student's advisor that an SOS submission had been received. Def. App. 31, 38. The Performance Improvement Plan also imposed a forty-eight hour deadline for Roys to send ARC letters and emails to students and their advisors and stated that Roys was responsible for enlisting help from another department if needed. Def. App. 31. If Roys would be unable to meet these deadlines, she was to let Shepherd know. Id. Ney's notes of the meeting reflect that Shepherd also said Roys should email her if she requested help with ARC processing and received no response within twenty-four hours. Def. App. 38. Roys' co-chair of the SOS program, Merkle, was not placed on a Performance Improvement Plan nor subject to any reprimand regarding that program's failings. Pl. App. 80-81 ¶ 22.

         On Wednesday, October 7, 2015, ARC letters were ready for Roys to send out, and she missed at least some work that day for a doctor's appointment. Def. App. 92-93. Roys emailed the students on Thursday, October 8, 2015, but she forgot to email the students' advisors. Pl. App. 36. An advisor emailed Roys on Friday, October 9, to ask about the students' ARC status, copying Shepherd on the email. Def. App. 93. Shepherd emailed Roys regarding the students on Monday, October 12, and emailed again on Tuesday, October 13, when Roys did not respond. Def. App. 92. Roys missed work on Monday, October 12, because she was in the emergency room. Pl. App. 36. She also missed some work for doctor's appointments on October 13 and October 23. Def. App. 92, 116.

         Ney sent Roys FMLA paperwork on October 6, 2015, after hearing that her abscess had returned. Pl. App. 33-34; Def. SOF ¶¶ 16-17; Pl. Resp. SOF ¶ 1. Roys did not request FMLA leave within the deadline, even though Ney extended the deadline once. Pl. App. 37; Def. SOF ¶ 17; Pl. Resp. SOF ¶ 1. Roys emailed Ney on October 29, 2015, informing her that many of her absences related to other ailments that would not qualify for FMLA leave. Pl. App. 69. Roys' counsel conceded at oral argument that none of Roys' absences upon her return to work in July 2015 were protected by the FMLA. On November 4, 2015, Roys was terminated, purportedly for poor performance-including missing a meeting that had been scheduled for some time, failing to respond to the FBI regarding a student background check within an appropriate timeframe, and failing to send SOS and ARC emails in a timely manner. Def. SOF ¶¶ 3, 36; Pl. Resp. SOF ¶ 1; Def. App. 83-86 ¶¶ 7-8, 17.

         The University's employee handbook states that “[d]epending upon the facts, disciplinary action may include oral or written warnings, suspension with or without pay, or immediate termination of employment” and that supervisors “in conjunction with the Director of Human Resources may repeat, modify or omit a level of discipline.” Pl. App. 9. Per the employee handbook, written warnings may be given “[w]hen an oral warning fails to achieve the desired improvement in performance or behavior [or] if the supervisor believes the nature of the offense makes its use appropriate.” Pl. App. 10. An employee may be terminated as “the result of one serious act of misconduct or insubordination, or as the result of an accumulation of minor offenses, or failure to satisfactorily perform job duties.” Id. The employee handbook states that “discharges must have the prior approval of the Director of Human Resources and the University President or his/her designee.” Id.

         On May 11, 2016, Roys filed the initial complaint in this lawsuit, and on July 11, 2016, she filed an amended complaint. Docs. 2, 12. The University did not move to dismiss the complaint, and the parties conducted and completed discovery. The University now moves for summary judgment on both Roys' claims. Doc. 17. Roys concedes that the University is entitled to summary judgment on her FMLA entitlement claim (Count I), but she resists the University's motion with respect to her FMLA discrimination claim (Count II). Doc. 24.

         In the University's reply brief in support of its motion, it included an affidavit from Dr. William Duffy, the University president, stating that he had approved Roys' termination in November 2015. Def. Supp. App. 122. Roys moved to strike the affidavit under Federal Rule of Civil Procedure 37(c) based on the University's failure to disclose Dr. Duffy in discovery. Doc. 27. At oral argument, Roys conceded that the motion should not be granted, arguing instead that a ...


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