United States District Court, N.D. Iowa, Eastern Division
K.E. MAHONEY UNITED STATES MAGISTRATE JUDGE.
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). 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).
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. 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. 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 ¶¶
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.
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.” Def. App. 21-22.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ¶¶
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.
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.
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