761 F.3d 792 (7th Cir. 2014), 14-1022, Langenbach v. Wal-Mart Stores, Inc.

Docket Nº:14-1022
Citation:761 F.3d 792
Opinion Judge:Kanne, Circuit Judge.
Party Name:ERIKA M. LANGENBACH, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee
Attorney:For Erika M. Langenbach, Plaintiff - Appellant: James H. Kaster, Attorney, Minneapolis, MN. For Wal-Mart Stores, Incorporated, Defendant - Appellee: Erik K. Eisenmann, Attorney, Whyte Hirschboeck Dudek S.C., Milwaukee, WI.
Judge Panel:Before BAUER, KANNE, and SYKES, Circuit Judges.
Case Date:August 04, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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761 F.3d 792 (7th Cir. 2014)

ERIKA M. LANGENBACH, Plaintiff-Appellant,


WAL-MART STORES, INC., Defendant-Appellee

No. 14-1022

United States Court of Appeals, Seventh Circuit

August 4, 2014

Argued May 29, 2014

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Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:12-cv-01019 -- Nancy Joseph, Magistrate Judge.

For Erika M. Langenbach, Plaintiff - Appellant: James H. Kaster, Attorney, Minneapolis, MN.

For Wal-Mart Stores, Incorporated, Defendant - Appellee: Erik K. Eisenmann, Attorney, Whyte Hirschboeck Dudek S.C., Milwaukee, WI.

Before BAUER, KANNE, and SYKES, Circuit Judges.


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Kanne, Circuit Judge.

Erika Langenbach worked for Wal-Mart for over ten years, moving her way up the internal hierarchy. Her progress was consistent until she sought promotion to an Assistant Manager position; Wal-Mart did not promote her until more than a year after her initial application submission. Eventually, she completed the company Management-In-Training program and began work as an Assistant Manager.

Although she had impressed her bosses with her previous work, the Assistant Manager position proved to be a challenge. Langenbach struggled with delegation, organization, and time management. After receiving several negative performance reviews, she was fired. Her termination happened to come five months after she returned from FMLA leave.

She now alleges that Wal-Mart retaliated against her for exercising her FMLA rights and discriminated against her because of her sex by delaying her promotion to Assistant Manager, paying her less than her male counterparts, and refusing to promote her further. The district court dismissed the suit following Wal-Mart's motion for summary judgment, and we now affirm.

I. Background

Langenbach began working for Wal-Mart in 1998, when she was hired to stock shelves in Mukwonago, Wisconsin. The next year, she requested and was transferred to the Saukville, Wisconsin store, where she was promoted to Jewelry Department Sales Coordinator. In 2001, she was promoted to Jewelry Department Manager. In 2006 or 2007, Langenbach began seeking an Assistant Manager position, applying to Wal-Mart's Management-In-Training program several times without success. She was finally admitted to the Management-In-Training program at a store in West Baraboo, Wisconsin in February 2008. To qualify for promotion to Assistant Manager, a Wal-Mart employee had to meet one of the following minimum requirements: (1) one year retail experience and one year supervisor experience, (2) two years general work experience and one year supervisor experience,

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or (3) completion of two or more years of college.

Upon completing the program, Langenbach began work as an Assistant Manager at the West Bend, Wisconsin store. She was initially assigned to the day shift but was scheduled for the night shift about a year later. This change-of-shift was in line with her job description, which noted that Assistant Managers were required to work overnight shifts as required.

In 2009, Langenbach received her first annual evaluation as an Assistant Manager. She was given an overall " Solid Performer" rating, but management also noted a number of deficiencies she needed to work on, including her assertiveness and time management skills. Later that year, Langenbach was placed on her first Performance Improvement Plan (the " 2009 PIP" ). Wal-Mart used these plans to improve sub-par performance and gathered information from managers and supervisees to compile them. The 2009 PIP described several problems with Langenbach's performance, including a lack of leadership, a tendency to push decisions off on associates, spending too much time in the office rather than on the sales floor, not following appropriate overnight shift procedures, and professionalism issues. This PIP was never completed, however, as Langenbach's managers did not hold the anticipated follow-up meetings.

Around January 2010, Langenbach returned to the day shift. On January 21st, Wal-Mart filed a written discipline comment (a " Coaching for Improvement" in Wal-martese) concerning Langenbach. " Coachings" were used for discrete disciplinary problems, while PIPs were used to address ongoing performance issues. According to the comment, Langenbach was not following management routines and frequently failed to complete her duties on time.

Langenbach's annual review took place in April 2010. The Store Manager, Mike Dooley, prepared the review, which gave Langenbach a competency score of 2.63 out of 5 and a rating of " Development Needed." The review noted that Wal-Mart needed to see a " complete turn around" from Langenbach and a renewed sense of " urgency and time management." It described specific issues complying with the overnight stocking program, attendance, and holding underperforming associates accountable.

Later that month, Langenbach discovered that she needed surgery to remove fibroid tumors in her uterus. In July 2010, she submitted a written request for continuous leave under the Family and Medical Leave Act (" FMLA" ) from July 30, 2010 to August 26, 2010. Wal-Mart approved the request. A few days before her scheduled return to work, Langenbach had some complications involving the incision from her surgery. She spoke with Joanne Massopust, the Market Human Resources Manager, seeking an extension of her leave or an accommodation by which she could work only part-time until the incision healed. Additionally, she provided a return to work certification form from her doctor, which indicated that she would be able to return to work without restrictions on September 13, 2010. In response, Wal-Mart extended her continuous leave through September 13, 2010.1

Upon return from leave, Langenbach was again assigned to the overnight shift. While this shift could be more physically demanding than the day shift, Assistant

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Managers could delegate the heavy lifting to the associates they supervised. Around this time, Langenbach also had a brief discussion with her supervisor, Courtney Wilcox, where she expressed concerns about her...

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