Hite v. Vermeer Mfg. Co.

• Decision Date: 09 May 2006
• Docket Number: No. 05-2297.,05-2297.
• Citation: 446 F.3d 858
• Parties: Denise R. HITE, Plaintiff-Appellee, v. VERMEER MANUFACTURING COMPANY; Rick Leedom, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

446 F.3d 858

Denise R. HITE, Plaintiff-Appellee, v. VERMEER MANUFACTURING COMPANY; Rick Leedom, Defendants-Appellants.

No. 05-2297.

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2006.

Filed: May 9, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Dale A. Knoshaug, argued, Des Moines, Iowa, for appellant.

Beth A. Townsend, argued, West Des Moines, Iowa, for appellee.

Before MURPHY, HANSEN and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Denise R. Hite sued her employer, Vermeer Manufacturing Company ("Vermeer") and her supervisor, Rick Leedom, for retaliation in violation of the Family and Medical Leave Act (FMLA). The jury returned a verdict in favor of Hite and awarded her back pay. The district court awarded Hite front pay, liquidated damages plus interest, and attorney's fees. The district court¹ subsequently denied Vermeer's and Leedom's motions for judgment as a matter of law or for a new trial and to amend or alter the judgment. Vermeer and Leedom appeal the denial of their post-trial motions. We affirm.

I. Background

We recite the facts in the light most favorable to the jury's verdict. United States v. Selwyn, 398 F.3d 1064, 1065 (8th Cir.2005).

Denise Hite began working for Vermeer on December 15, 1997, as a drill operator and progressed to CNC lathe machine operator in May 1999. Prior to joining Vermeer, Hite had been diagnosed with major depressive disorder by her physician, Dr. Nancy Vander Broek. Major depressive episodes hampered Hite's work ability. Beginning in January 2000, Hite exercised her rights to take leave under the FMLA to address the severe depression bouts which recurred periodically in 2000 and 2001.

When Hite needed to use FMLA leave, she would contact her supervisor directly or leave a message for him prior to the start of her shift. In addition, Hite would notify Pam Montegna, Vermeer's FMLA Coordinator. Hite would then fill out a short-term disability application with Dr. Vander Broek to give to Montegna. Dr. Vander Broek would also certify when Hite could return to work.

In February 2001, Dr. Vander Broek recommended intermittent FMLA leave for Hite because of the sporadic nature of her illness. Intermittent leave enabled Hite to use FMLA leave for periods of time less than an entire shift. Hite used this intermittent FMLA leave when she arrived at work 15 or 30 minutes late or wanted to leave work early due to her condition.

Hite's difficulty exercising FMLA leave began when Rick Leedom became Hite's supervisor. From the beginning of his supervision, Leedom reacted negatively to Hite's use of FMLA leave. When Hite missed work, Leedom would question whether she was really sick under the FMLA guidelines. Leedom would call Hite into his office and tell her he "couldn't see anything wrong with her" and therefore she "needed to be at work." He also said that because of her absences, her production levels would be called into question. In addition, Leedom commented to his assistant that FMLA was "bad for the company" and complained regularly to Martin Van Wyk, Vermeer's Human Resources Manager, and Montegna about Hite's use of FMLA leave.

Leedom also routinely transferred Hite to different machines upon her return from leave. The machines were of a lower classification than the CNC lathe machine and were more difficult for Hite to operate. Leedom informed Hite that he was transferring her because "the CNC lathe was a critical machine that needed to be run every day, every shift, 24 hours a day" and because of her FMLA leave. When Hite would complain to Van Wyk about Leedom moving her, she would eventually be returned to the CNC lathe machine; however, Leedom continued to transfer her to different machines. Her pay was never adversely affected by the transfers.

During employee evaluations on December 6, 2000, Leedom informed Hite that he would permanently remove her from the CNC lathe machine if she continued to use FMLA leave. The evaluation noted that Hite had seven unexcused absences, which were days that Hite used her FMLA leave. Leedom told Hite that if she continued to use FMLA leave, her job at Vermeer would be in jeopardy.

During January 2001, Hite used her vacation time because she was ill and wanted to receive pay. Vermeer's policy required the employee to call in and request a vacation day. The employee received the vacation day the same day she requested it. Pursuant to the policy, Hite called in on three consecutive days asking for vacation time. On the fourth day, however, Leedom called back and left a voice message on Hite's answering machine, stating that her vacation time was denied and that she must report to work the next day or she would lose her job. Leedom told Hite that for the rest of 2001, she had to give a 30-day notice to use her vacation days. Hite requested vacation leave the day her grandfather died but was denied because of the 30-day notice Leedom imposed. Also Leedom disciplined Hite for every sick day that was not covered by FMLA, vacation time, or personal time, something that was solely at Leedom's discretion and for which he did not punish other employees.

Hite frequently complained to Van Wyk and Montegna about Leedom's reaction to her use of FMLA leave. Leedom treated Hite differently than other employees by citing her for minor rule violations not commonly used with other workers. After one such citation, Hite met with Leedom and Van Wyk regarding the disciplinary action. Hite refused to sign the disciplinary form. After the meeting, Hite had an anxiety attack and went to the FMLA office to meet with Montegna. Hite told Montegna that Leedom and Van Wyk were making it impossible for her to be at work and were harassing her about using FMLA leave. She expressed her fear that she would lose her job because of her complaints, as well as her use of FMLA leave. Montegna told Hite she would talk to Van Wyk about Hite's concerns. After that meeting, Hite went to see Dr. Vander Broek and took two weeks FMLA leave.

When Hite returned to work, she had another meeting with Montegna and Van Wyk. Prior to the meeting, Leedom requested that Van Wyk remove Hite from the CNC lathe machine because of her absences and their effect on productivity. During the meeting, Montegna, Van Wyk, and Hite decided that if Hite would agree to move to a different job, "all harassment and retaliation by Rick Leedom against [Hite] for [her] disability would be stopped." While the new machine Hite operated was more difficult for her to operate and was physically too demanding for her, she worked at the machine until her termination.

After Hite's transfer, Becky Nichols, a contract nurse hired by Vermeer, frequently contacted Dr. Vander Broek seeking "clarification" of Hite's use of FMLA leave.² Hite never gave anyone at Vermeer permission to contact Dr. Vander Broek seeking information about her use of FMLA leave.

Hite's last use of FMLA leave was on June 14, 2001. About two months later, Hite requested and received permission from Leedom to place a cell phone call on company property.³ On the same day, Leedom informed Human Resources Manager Cornelis Van Walbeek and, according to Van Walbeek's testimony, recommended to Van Walbeek that he terminate Hite. Subsequently, Van Walbeek summarized Hite's disciplinary history, taking into account Hite's entire disciplinary history contrary to company practice of only considering one year. Van Walbeek's review of Hite's attendance records familiarized him with Hite's FMLA usage.

Van Walbeek, Leedom, and Hite met on August 28, 2001. At the meeting, Hite was informed that she was being terminated for using her cell phone outside the plant and away from her machine during company time. When Hite tried to explain to Van Walbeek that Leedom gave her permission to use her cell phone prior to making the call, Van Walbeek responded that he did not care. In addition to the alleged cell phone policy violation, Van Walbeek considered additional disciplinary actions in determining to terminate Hite's employment. As of August 24, 2001, Hite had received written warnings and received coaching and counseling ("C & C") regarding attendance, safety, and conduct on eleven occasions. Only four of the eleven disciplinary actions occurred within a year of her termination date.

Hite filed suit against Vermeer and Rick Leedom, alleging retaliation under the FMLA. At trial, Hite presented the testimony of Ruth Johnson and Stacy Wharton, former Vermeer employees, about Vermeer's retaliatory practices. Johnson testified that after she began taking FMLA leave for her anxiety disorder, she began having disciplinary problems at Vermeer. Montegna told Johnson to "get [her] act together or [she would] lose her job." Johnson testified that she was ultimately terminated as a result of the FMLA absences. Similarly, Wharton testified that she experienced adverse employment actions after using FMLA leave. Wharton also testified that her father, a long-time supervisor at Vermeer, told her that Hite had been targeted for termination because of her FMLA absences.

The jury returned a verdict in favor of Hite, awarding her back pay in the amount of $107,571.97. The district court subsequently awarded Hite $15,512.76 in front pay, liquidated damages in an amount equal to that awarded by the jury for back pay, $107,571.97, and attorney's fees and costs of $78,866.50. Vermeer and Leedom filed motions for judgment as a matter of law or for a new trial and to amend or alter the judgment. The district court denied their motions.

II. Discussion

Vermeer and Leedom raise three arguments on appeal: (1) that the district court erred in finding that there was sufficient evidence of FMLA retaliation; (2) that the district court erred in finding there was sufficient evidence to support the award of liquidated damages plus interest; and (3) that the district court abused its discretion in refusing to amend the judgment to...