659 F.3d 987 (10th Cir. 2011), 10-3118, Twigg v. Hawker Beechcraft Corp.

Docket Nº:10-3118.
Citation:659 F.3d 987
Opinion Judge:EBEL, Circuit Judge.
Party Name:Denice TWIGG, Plaintiff-Appellant, v. HAWKER BEECHCRAFT CORPORATION, Defendant-Appellee.
Attorney:Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, KS, for Plaintiff-Appellant. Terry L. Mann, Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., Wichita, KS, for Defendant-Appellee.
Judge Panel:Before BRISCOE, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges.
Case Date:October 13, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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659 F.3d 987 (10th Cir. 2011)

Denice TWIGG, Plaintiff-Appellant,



No. 10-3118.

United States Court of Appeals, Tenth Circuit.

October 13, 2011

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Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, KS, for Plaintiff-Appellant.

Terry L. Mann, Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., Wichita, KS, for Defendant-Appellee.

Before BRISCOE, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Denice Twigg appeals from the district court's order granting summary judgment in favor of Defendant-Appellee Hawker Beechcraft Corporation (" HBC" ) on Twigg's claims

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for (1) retaliation under 42 U.S.C. § 1981; (2) retaliation under the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. §§ 2601-54; and (3) interference under the FMLA. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that Twigg failed to produce sufficient evidence that HBC terminated her employment in retaliation for her complaints about race discrimination or her taking FMLA leave. Therefore, her retaliation claims under § 1981 and the FMLA fail as a matter of law. We further conclude that the district court properly granted summary judgment to HBC on Twigg's FMLA interference claim because HBC met its burden of demonstrating that it terminated Twigg for a reason unrelated to her FMLA leave— namely, her failure to comply with the company's notice-of-absence policy. Accordingly, we AFFIRM the judgment of the district court.


A. Twigg's Position with HBC

HBC, formerly known as Raytheon Aircraft Company, is a manufacturer of civilian and military aircrafts. Twigg was employed by HBC from April 2, 1997, to April 7, 2008. At all times relevant to the present action, Twigg worked in HBC's Technical Manual Distribution Center (" TMDC" ) as a Media Production Specialist. Her duties included converting aircraft document files and manuals into .pdf electronic files for compact-disc and web delivery, answering customer questions concerning navigation of HBC's website, and keeping certain information on the website up to date. Cindy Ealey was Twigg's immediate supervisor. Ealey, in turn, was supervised by Kathy Sade, who was classified as a manager. Sade indirectly supervised Twigg.

B. Twigg's Complaints About Race Discrimination

During part of Twigg's employment with HBC, Teresa Cole, an African American, was one of Twigg's coworkers in the TMDC. Cole was supervised by Sharon Schlegel, who reported directly to Sade. In the spring of 2007, Twigg complained to Ealey that Schlegel was treating Cole unfairly because of Cole's race. Twigg observed Schlegel demeaning Cole and " overheard conversations in regard to blacks are lazy." (Aplt.App. at 190.) Twigg also felt that Cole was being forced to work extra hours to make up for time that she had taken off in order to attend physical therapy for a hand injury sustained at work. In late 2007 or January 2008, Twigg again complained to Ealey about the treatment of Cole, this time expressing her belief that Schlegel was unfairly denying Cole time off work. Although Ealey had no supervisory authority over Cole or Schlegel, Ealey relayed Twigg's complaints to Sade.

C. Twigg's FMLA Leaves

1. HBC's FMLA Policy and Rules of Conduct

HBC distributes and makes available to all of its employees a short FMLA brochure. This brochure was mailed to every employee's home in August 2006. In addition, employees could get a copy of the brochure from Human Resources (" HR" ) personnel, in the medical department, or on the company intranet. The brochure provides an overview of the FMLA and explains how employees may request family leave. The brochure also contains a section entitled " Employee Responsibilities," which states, in pertinent part, " Until you receive formal notification that your family leave has been approved, you must properly report your absence to your department every day. Proper reporting

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is defined as reporting prior to the beginning of your shift." (Aple. Supp.App. at 85 (emphasis added).)

When Twigg participated in new-employee orientation in 1996, she was provided with a copy of HBC's attendance policy and Rules of Conduct. Rule 1 of HBC's Rules for Personal Conduct states that it is a violation of company policy for an employee to be " [a]bsen[t] for three consecutive working days without proper notification." ( Id. at 77.) The presumptive discipline for a first-time violator of this rule is termination.

2. 2004 FMLA Leave

In 2004, Twigg applied for FMLA leave so that she could have elective cosmetic surgery. HBC approved her for six weeks of FMLA leave. When Twigg returned after her leave, she did not experience any retaliation or hear anybody say anything critical about the fact that she took FMLA leave.

3. 2008 FMLA Leave

On February 19, 2008, Twigg submitted a written request for FMLA leave to HBC's HR department. She asked for leave beginning the next day, February 20, 2008, and continuing through April 17, 2008. The reason listed for the leave was " [s]urgery on Feb 20th, [p]er Dr. possible 6-8 wk required recovery." (Aple. Supp.App. at 152.) Twigg claims that at some point before her surgery, both Ealey and Sade approved her absence from work until April 18, 2008. She also claims that Ealey approved the following out-of-office auto reply message that Twigg posted on her e-mail account during her absence: " I will be out of the office until approximately April 18, 2008." (Aplt.App. at 187.)

Along with her FMLA request, Twigg submitted a " Certification of Health Care Provider" as required by HBC policy. ( Id. at 146-47.) This form was filled out and signed by Dr. Joseph Lickteig. Dr. Lickteig identified Twigg's diagnosis as " bunion right foot" and stated that the probable duration of the condition was three months. ( Id. at 146.) In response to Question 7 on the form, which asked the doctor to describe the medical facts supporting the existence of a " serious health condition," Dr. Lickteig wrote, " Surgery to correct bunion with post-op recovery necessary i.e. non-wt. bearing etc." ( Id. ) Question 12(a) on the form asked, " If medical leave is required for the employee's absence from work because of the employee's own condition [,] ... is the employee unable to perform work of any kind?" ( Id. at 147.) Dr. Lickteig responded, " Can preform [sic] only non-wt. bearing work." ( Id. ) A follow-up question, Question 12(b), inquired, " If able to perform some work, is the employee unable to perform any one or more of the essential functions of the employee's job? If yes, please list the essential functions the employee is unable to perform." ( Id. ) Dr. Lickteig did not answer this question.

a) HBC's Initial Approval of Twigg's Leave Request Through February 29, 2008

On February 21, 2008, Amber Cotton, an assistant in HBC's HR department who helped with FMLA administration, prepared a memorandum addressing Twigg's FMLA request. The memorandum stated, " Your request for FMLA leave has been reviewed and approved for the following dates: February 20-29, 2008." (Aplt.App. at 148.) Cotton testified in her deposition that she sent this memorandum to Twigg's home address via regular U.S. mail, but Twigg claims that she never received a copy of the memorandum. Twigg testified, however, that she called Cindy Ealey on February 25, 2008, to provide an update

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on her surgery and was informed that her FMLA leave had only been approved through February 29.

Nita Long, HBC's former director of compensation and benefits and the individual in charge of HBC's FMLA program in 2008, was responsible for the decision to approve Twigg's FMLA leave for one week. Both Long and Cotton acknowledged that Dr. Lickteig's certification did not indicate the length of time that Twigg would need to be off work. Long testified that if Dr. Lickteig had provided a specific time frame, HBC would have been bound by the certification unless the company followed the procedures in the Code of Federal Regulations for seeking a second medical opinion. Because the doctor did not specify a time frame, however, Long made the decision based on her own prior experience with bunion surgery and the doctor's indication that Twigg could perform non-weight-bearing work. Long thought that the surgery and healing should take roughly one week and that the company could thereafter accommodate the restriction that Twigg not perform weight-bearing work.1

Both Long and Cotton were questioned about whether they viewed Dr. Lickteig's certification as incomplete or inadequate because of the doctor's failure to provide a time frame that Twigg would need to be off work. Long responded that she did not view the certification as incomplete or inadequate since it contained the notation indicating that Twigg could perform only non-weight-bearing work, which Long interpreted to mean that Twigg " should be able to work as long as we [were] able to keep [her] off [her] feet." (Aple. Supp.App. at 55.) Similarly, Cotton explained that it was her understanding that " [i]ncomplete or inadequate medical certification would mean you are unable to make a decision based on information you have," which she did not believe to be the case with respect to Dr. Lickteig's certification. (Aplt.App. at 212.)

Cotton also testified that when HBC finds a medical certification insufficient or in need of clarification, the company sends a notification to the employee highlighting any deficiencies and requesting additional documentation. HBC never notified Twigg that Dr...

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