Langenbach v. Wal-Mart Stores, Inc.

• Decision Date: 04 August 2014
• Docket Number: No. 14–1022.,14–1022.
• Citation: 761 F.3d 792
• Parties: Erika M. LANGENBACH, Plaintiff–Appellant, v. WAL–MART STORES, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

761 F.3d 792

Erika M. LANGENBACH, Plaintiff–Appellant,

v.WAL–MART STORES, INC., Defendant–Appellee.

No. 14–1022.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2014.

Decided Aug. 4, 2014.

James H. Kaster, Attorney, Minneapolis, MN, for Plaintiff–Appellant.

Erik K. Eisenmann, Attorney, Whyte Hirschboeck Dudek S.C., Milwaukee, WI, for Defendant–Appellee.

Before BAUER, KANNE, and SYKES, Circuit Judges.

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, 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 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 medical condition. Wilcox told Langenbach that she needed to go back on leave or request an Americans with Disabilities Act accommodation if she was concerned about her condition's effect on her job performance. Langenbach did not follow up on the conversation.

Langenbach's mid-year evaluation took place after she returned from leave. Although the evaluation was prepared in July, before Langenbach took her leave, Wal–Mart decided to deliver it after she returned. This evaluation assessed Langenbach's overall competency rating at 2.26 out of 5 and assigned her an overall performance rating of “Development Needed.” As in the 2009 evaluation, the managers' comments reflected poor leadership skills and insufficient organization and planning.

Following this poor evaluation, Langenbach was again placed on a Performance Improvement Plan (the “2010 PIP”). The 2010 PIP identified a number of issues with Langenbach's performance. For instance, it described Langenbach's time management problems, noting that she was “not organized to be able to give clear cut deadlines on calendar events, etc. Too many things left until the last minute. [She gets] focused on one task and forget[s] or lose[s] track of what else is going on.” It further explained that Langenbach had not consistently implemented company policies or complied with Assistant Manager routines. The 2010 PIP went on to identify actions Langenbach could take to improve her performance, measurement standards by which her performance would be evaluated, and a time frame in which she was expected to improve.

Wilcox and Dooley held the first follow-up session for the 2010 PIP in November 2010. Langenbach's progress was rated as “Below Expectations” and the follow-up document explained that she had failed to improve her time management or the consistency with which she implemented management routines and company policies. At the second follow-up session in January 2011, Wilcox and Dooley once more rated Langenbach's progress as “Below Expectations,” again citing her poor time management skills and inconsistent implementation of routines and policies. The final follow-up session took place on March 1, 2011. Prior to this session, Wilcox and Dooley met with Massopust and determined that Langenbach had not made the improvements specified in the plan. As a result, they decided to fire her.

Several other Wal–Mart employees' career paths are also relevant to this appeal. Joe Frankiewicz, who, like Langenbach, had only a high school education, began working at the West Bend Wal–Mart as a meat cutter in 1998. Before that, he managed the meat department at a local Piggly Wiggly. Seven months after he started, he was promoted to Manager of the West Bend meat department, an Assistant Manager position. He had to apply for the position, but he was the only applicant. No Management–In–Training program was involved because no such program existed for the food departments. He was uniquely qualified for this position because he knew how to cut meat, a skill he described as a “lost art.”

Adam Zastrow began working at Wal–Mart in 2001 as a produce sales associate in the West Bend store. He started out with a part-time schedule because at the time, he was attending community college. Eventually, he completed two years of community college, but did not obtain an Associate's Degree. Eventually, he transitionedto full-time work. A year-and-a-half later, he attended the Management–In–Training program in Beaver Dam, Wisconsin and was promoted to Assistant Manager at another store. He got the job because he mentioned to his manager that he was looking for work that paid more and she said she would recommend him for the program. About six years later, he was promoted to Shift Manager. A little more than a year after that promotion, he became a Store Manager.

There were also a number of male college graduates who were hired directly into the Management–in–Training program—C.J. Tabasky, Blake Hamel, Preston St. John, LaTravis Henry, and Troney Shumpert. They all played football for Chris Meidt, Wal–Mart's Regional...