Parker v. United Airlines, Inc.

• Decision Date: 26 September 2022
• Docket Number: 21-4093
• Citation: 49 F.4th 1331
• Parties: Jeannie PARKER, Plaintiff - Appellant, v. UNITED AIRLINES, INC., Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

49 F.4th 1331

Jeannie PARKER, Plaintiff - Appellant,

v.UNITED AIRLINES, INC., Defendant - Appellee.

No. 21-4093

United States Court of Appeals, Tenth Circuit.

FILED September 26, 2022

Peter M. Katsaros, Hahn Loeser & Parks LLP (Eugene E. Endress and Rashmi D. Shivnani, Hahn Loeser & Parks LLP with him on the briefs), Chicago, Illinois, for Plaintiff-Appellant.

Jessica E. Whelan, Holland & Hart LLP, Las Vegas, Nevada (Bryan K. Benard, Holland & Hart LLP, Salt Lake City, Utah, with her on the briefs), for Defendant-Appellee.

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.

BACHARACH, Circuit Judge.

This case involves provisions of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 – 54. This statute prohibits employers from retaliating against employees for taking FMLA leave. 29 U.S.C. § 2615(a)(2). We may assume for the sake of argument that the prohibition would ordinarily apply when an employer adopts an immediate supervisor's recommendation to fire an employee for taking FMLA leave. With that assumption, we must decide whether the prohibition would apply when the employee obtains consideration by independent decisionmakers.

We answer no . Retaliation entails a causal link between an employee's use of FMLA leave and the firing. That causal link is broken when an independent decisionmaker conducts her own investigation and decides to fire the employee.

I. Ms. Parker's supervisor recommends the firing of Ms. Parker, and two independent decisionmakers consider the recommendation.

Ms. Parker fielded calls for United, booking flight reservations. Ms. Parker took FMLA leave because she had a vision disorder and her father had cancer

. About five months after approving the leave, Ms. Parker's supervisor suspected that Ms. Parker was avoiding new calls by telling customers that she would get additional information, putting the customers on hold, and chatting with coworkers about personal matters while the customers waited. The supervisor characterized Ms. Parker's conduct as "call avoidance."

This suspicion led to a meeting between the supervisor, Ms. Parker, and a union representative. At the meeting, the supervisor played recordings of three calls between Ms. Parker and customers:

1. On the first call, Ms. Parker had talked to a customer for about 4 minutes. But she stayed on the line for another 54 minutes. Ms. Parker admitted that she had "failed to disconnect the call when saying goodbye" or "watch the time," which "resulted in a hung call for a huge amount of time." Appellant's App'x vol. 2, at 383, 390.

2. On the second call, Ms. Parker had put a customer on hold for 15 minutes. Right after putting the customer on hold, Ms. Parker asked another supervisor for help. After getting the help, Ms. Parker and the other supervisor chatted about personal matters for over 18 minutes while the customer stayed on hold. According to another supervisor, Ms. Parker hung up on the customer. Ms. Parker denied hanging up on the customer. But she acknowledged and "regrett[ed] leaving the customer on hold for a LENGHLY [sic] amount of time and the call dropped/disconnected while [she] vented [her] home and work frustrations." Id.

3. On the third call, Ms. Parker had put a customer on hold for over 20 minutes and then hung up. Id. Ms. Parker explained that (1) her computer had locked up and (2) she had "spent a long time away from the monitor trying to regroup [her] emotions." Id. at 390. When she returned to the call, she mistakenly hung up on the customer. Id.

Following this meeting, United suspended Ms. Parker while investigating her performance. During this investigation, the supervisor reviewed more of Ms. Parker's phone calls with customers and recommended that United fire Ms. Parker.

United's policies prohibited the supervisor from firing Ms. Parker. Under these policies, United had to select a manager to conduct a meeting and to allow participation by Ms. Parker, her supervisor, and a union representative. All of them could present arguments and evidence, and the manager would decide whether to fire Ms. Parker.

United applied this policy, selecting a manager to conduct the meeting. In attendance with her were Ms. Parker, the supervisor, and a union representative. The supervisor played recordings of the three calls and presented written summaries of other calls. The supervisor argued that the other calls had violated United's policies by unnecessarily putting customers on lengthy holds while chatting with other employees about personal matters.

Ms. Parker's union representative challenged the supervisor's account about two of Ms. Parker's calls. The union representative contended that

• the customer had ended one of the calls and

• Ms. Parker had to end the other call because of computer problems.

But the union representative acknowledged a decline in Ms. Parker's work performance based on her circumstances: She suffered from a vision disorder and had been taking care of her terminally ill father. Given the circumstances and Ms. Parker's long work history, the union representative asked United to apply its progressive discipline policy rather than to fire her. The manager sided with the supervisor, agreeing with her recommendation to fire Ms. Parker for serious policy violations.

United's policy allowed Ms. Parker to appeal the firing by submitting a grievance. If she were to submit a grievance, another manager would conduct the appeal through a conference call. In the conference call, the fired employee and a union representative could participate and present further arguments and evidence.

Ms. Parker invoked this procedure by submitting a grievance. She declined to participate, relying on her union representative. The union representative admitted in the conference call that Ms. Parker had "no excuse for the demonstrated behavior of call avoidance except for being under extreme mental duress." Appellant's App'x vol. 2, at 411. With this admission, the union representative asked United to give Ms. Parker another chance. The senior manager declined and concluded that United hadn't acted improperly in firing Ms. Parker.

II. Ms. Parker bore the burden to show pretext.

For a prima facie case, Ms. Parker needed to show that (1) she had taken leave authorized by the FMLA, (2) United had taken a materially adverse action, and (3) a causal connection had existed between Ms. Parker's FMLA leave and United's decision to fire her. See Metzler v. Fed. Home Loan Bank of Topeka , 464 F.3d 1164, 1170 (10th Cir. 2006).

United doesn't question the existence of a prima facie case. So United needed to present "a legitimate non-discriminatory reason for the adverse employment action." Litzsinger v. Adams Cnty. Coroner's Off. , 25 F.4th 1280, 1287 (10th Cir. 2022) (quoting Smothers v. Solvay Chems., Inc. , 740 F.3d 530, 538 (10th Cir. 2014) ). United presented a legitimate reason: call avoidance. So Ms. Parker needed to show that this reason had been pretextual. Id. She could show pretext through evidence "that a discriminatory reason [had] more likely motivated [United] or that [its] proffered explanation [had been] unworthy of credence." Zamora v. Elite Logistics, Inc. , 478 F.3d 1160, 1166 (10th Cir. 2007) (quoting Stinnett v. Safeway, Inc. , 337 F.3d 1213, 1218 (10th Cir. 2003) ).

The district court granted summary judgment to United based on Ms. Parker's failure to show pretext. The court reasoned that United had fired Ms. Parker after hearing her side.

III. We conduct de novo review based on the summary-judgment standard.

We engage in de novo review of the district court's summary-judgment ruling, applying the same standard that applied in district court. SEC v. GenAudio Inc. , 32 F.4th 902, 920 (10th Cir. 2022). Under this standard, the district court must view the evidence and draw all justifiable inferences favorably to Ms. Parker. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Viewing the evidence and drawing reasonable inferences favorably to Ms. Parker, the district court could grant summary judgment to United only without a "genuine dispute as to any material fact" and United's showing of an entitlement "to judgment as a matter of law." Fed. R. Civ. P. 56(a).

IV. Ms. Parker argues that the district court should have imputed the supervisor's retaliatory motive to United.

Ms. Parker argues that the district court erred in

• relying on the manager's independence and

• disregarding the supervisor's retaliatory motive.

For those arguments, Ms. Parker relies on the cat's paw theory. That theory imputes a supervisor's motive to an employer if the motive influenced the employer's decision. See Singh v. Cordle , 936 F.3d 1022, 1038–39 (10th Cir. 2019) (discussing the cat's paw theory).

The district court rejected Ms. Parker's reliance on the cat's paw theory, relying on English v. Colorado Department of Corrections , 248 F.3d 1002 (10th Cir. 2001). In English , the employer allowed the employee to contest findings by an investigator who was allegedly biased. Despite this opportunity, the employee declined to respond. We observed that "a plaintiff [could not] claim that a firing authority [had] relied uncritically upon a subordinate's prejudiced recommendation where the plaintiff had an opportunity to respond to and rebut the evidence." Id. at 1011.

Given this observation in English , the district court reasoned that Ms. Parker could have presented evidence and arguments to rebut the recommendation of an allegedly biased supervisor. So in the court's view, the alleged bias could not be imputed to the employer.

Ms. Parker argues that the district court erred by skipping over a later Supreme Court opinion: Staub v. Proctor Hospital , 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). Staub involved a claim of employment discrimination under another federal statute (the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4311(a) ). There the Court analyzed the claim based on...