Pagel v. Tin Inc.

• Decision Date: 09 August 2012
• Docket Number: No. 11–2318.,11–2318.
• Citation: 695 F.3d 622
• Parties: Jeff T. PAGEL, Plaintiff–Appellant, v. TIN INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

695 F.3d 622

Jeff T. PAGEL, Plaintiff–Appellant,

v.TIN INC., Defendant–Appellee.

No. 11–2318.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 2012.

Decided Aug. 9, 2012.

Robert J. Hanauer (argued), Daniel G. O'Day, Attorneys, Cusack, Fleming, Gilfillan & O'Day, Peoria, IL, for Plaintiff–Appellant.

Christopher J. DeGroff (argued), Attorney, Seyfarth Shaw LLP, Chicago, IL, for Defendant–Appellee.

Before CUDAHY, KANNE, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge.

Jeff Pagel brought this action alleging that his employer, TIN Inc., violated the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., by interfering with his right to take leave and retaliating against him for exercising that right. The district court granted summary judgment in favor of TIN, reasoning that the company fired Pagel for poor performance rather than for taking leave. Because we believe genuine issues of material fact remain unresolved, we reverse and remand for further proceedings.

I. Background

We review grants of summary judgment de novo, viewing the record in the light most favorable to Pagel and drawing all reasonable inferences in his favor. Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir.2011). The following descriptionof the facts reflects this perspective.

TIN manufactures and supplies containerboard to customers seeking both corrugated packaging products and custom displays. In May 2000, TIN hired Jeff Pagel as an account manager—TIN's term for an outside salesman. Pagel's sales territory extended from Central Illinois to Western Indiana, and his primary responsibilities included: calling on existing and prospective customers, creating custom-packaging designs, coordinating orders with production facilities, and planning and reporting sales activities to company management. Generally, account managers have significant flexibility in scheduling sales calls and resolving customer problems. In his six years at TIN, Pagel earned a steady annual salary of about $180,000, comprising both base pay and commission. The commission portion of Pagel's income was based on annual sales of at least $7 million.

On January 1, 2006, Pagel began reporting to Scott Kremer, Regional Sales Manager. Also beginning in 2006, company management required supervisors to give each account manager a periodic performance evaluation—something Pagel never previously received. As part of the evaluation procedure, Kremer asked his account managers to submit daily activity reports summarizing each day's sales and two-week itinerary reports identifying future sales activities and leads. Account managers were also required to submit a periodic list of sales prospects and targets. Compliance with these reporting requirements was noted on each account manager's evaluation.

That summer, Pagel experienced chest pain and labored breathing, prompting him to visit two physicians in July 2006. During his second appointment on July 21, Dr. Nicholas Shammas ordered a two-day stress test for August 4 and 7. The tests revealed a septal wall ischemia—a blockage in a portion of his heart. On August 29, Pagel was admitted to the hospital for an angioplasty and stent placement. He was discharged the next day and advised to rest for several days thereafter. The following week, Pagel's symptoms returned, and he was quickly admitted to Genesis Medical Center for two nights. Although an examination did not expose any additional heart trouble, a CT scan revealed an irregular and unrelated mass in his left lung. A subsequent September 18, 2006, PET scan of the mass was negative. Pagel claims each of these absences was covered by the FMLA, and he further claims that he gave Kremer prior notification of each absence.

On August 24, 2006, five days before his angioplasty, Kremer and Crawfordsville, Indiana, Plant Manager Rick Eaks, called Pagel to a meeting to discuss his year-to-date performance. Kremer observed that Pagel's sales revenue and volume had declined over the past two years and the 2006 year-to-date numbers were the worst yet. Kremer also chided Pagel for submitting the fewest number of new custom-packaging designs of any account manager and making the second fewest daily sales calls. The memo ended by indicating that Pagel risked termination if his performance did not improve. Pagel vigorously disputed, and continues to dispute, Kremer's underlying data, arguing that there were numerous sales of which Kremer was unaware. Pagel also contends that Kremer's per-day calculations inaccurately included days that he received FMLA-qualifying treatment. Prior to the August 24 meeting, Pagel had never been disciplined or warned about his performance.

While Pagel was still in a Davenport, Iowa, clinic for the September 18 PET scan, Kremer called to notify him that Kremer would be in Champaign, Illinois, the following day. Kremer wanted to observe and evaluate Pagel's performance during what is known as a sales ride along—a standard practice at TIN. Because Pagel had no prior plans to be in Champaign on September 19, he hastily attempted to schedule a few calls. According to Pagel, scheduling a sales call typically requires as much as one week's notice to the prospective customer, not to mention the time it takes account managers to prepare for each call. In any event, Pagel and Kremer only attended one scheduled call and one unscheduled call that day. A third call was attempted, but, unbeknownst to Pagel, the prospective customer had moved locations. Both Pagel and Kremer agree that the ride along did not go as planned—Kremer called it disastrous and Pagel concluded that it could have gone better.

For Kremer, Pagel's poor performance during the ride along was the final straw. In a memorandum dated October 2, 2006, and delivered October 4, Kremer terminated Pagel's employment, ostensibly for poor performance. The memo relayed the details of the ride along, and it further noted that Pagel's performance had not improved since the August 24 evaluation. As he did with the performance evaluation, Pagel vehemently disputed the accuracy of the data and metrics Kremer outlined in the termination memo. In at least one instance, Pagel correctly noted that Kremer incorrectly criticized him for missing reporting deadlines on days Pagel received medical treatment.

In October 2008, Pagel filed suit in Illinois state court alleging FMLA claims for interference and retaliation. TIN removed the complaint to federal court and filed a motion for summary judgment shortly thereafter. The district court granted summary judgment for TIN, reasoning that Pagel's poor performance on the September 19 ride along was a sufficient, non-discriminatory reason for termination. Pagel filed this timely appeal.

II. Analysis

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine factual dispute exists if a reasonable jury could find for either party. Stokes v. Bd. of Educ. of Chicago, 599 F.3d 617, 619 (7th Cir.2010).

The FMLA generally provides eligible employees suffering from a serious medical condition with as many as twelve weeks of unpaid leave during any twelve-month period. 29 U.S.C. § 2612(a)(1)(D). Employers are prohibited from both interfering with, id. § 2615(a)(1), and retaliating against, id. § 2615(a)(2), an employee's use or attempted use of FMLA leave. The difference between the two theories is that a retaliation claim requires the employee to prove discriminatory or retaliatory intent while an interference claim only requires the employee to prove that the employer denied him entitlements provided by the Act. Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir.2005). On appeal, Pagel argues that the district court erred in granting summary judgment to TIN on both counts. We consider each claim individually.

A. FMLA Interference

It is unlawful for employers to interfere with an employee's attempt to exercise her rights under the FMLA. 29 U.S.C. § 2615(a)(1). Here, Pagel claims that TIN denied him his duly earned FMLA rights because the company improperly considered missing reports in its decision to fire him, and it did not adjust Pagel's sales expectations despite the many days he spent receiving treatment. To prevail on an FMLA-interference theory, the plaintiff employee must prove that: “(1) she was eligible for the FMLA's protections; (2) her employer was covered by the FMLA; (3) she was entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.” Makowski v. SmithAmundsen LLC, 662 F.3d 818, 825 (7th Cir.2011) ( quoting Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 993 (7th Cir.2010)). TIN concedes that Pagel's claim satisfies the first two elements, and thus our analysis focuses solely on the last three.

Before considering the three contested elements, we must first address TIN's claim that Pagel waived his interference claim on appeal. TIN recognizes Pagel's recitation of the elements of an interference claim in his opening brief, but the company argues that Pagel was really addressing the discriminatory-intent element of a retaliation claim. As such, Pagel must have waived any further pursuit of his interference claim. See Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 650 (7th Cir.2011) (insufficiently developed arguments are waived on appeal). We disagree. Pagel's discussion of discriminatory intent and pretext appears to be in response to the district court's holding that Pagel's poor performance during the ride along constituted a legitimate, non-discriminatory reason for termination. Pagel undoubtedly focused so heavily on this interference element because it was the only element the district court found lacking in his claim. Moreover, TIN ignores the role pretext evidence...