Sabourin v. Univ. of Utah

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: HARTZ
• Citation: Sabourin v. Univ. of Utah, 18 Wage & Hour Cas.2d (BNA) 1633, 278 Ed. Law Rep. 822, 676 F.3d 950 (10th Cir. 2012)
• Decision Date: 06 April 2012
• Docket Number: No. 10–4150.,10–4150.
• Parties: Michael T. SABOURIN, Plaintiff–Appellant, v. UNIVERSITY OF UTAH, Defendant–Appellee.

18 Wage & Hour Cas.2d (BNA) 1633

278 Ed. Law Rep. 822

676 F.3d 950

Michael T. SABOURIN, Plaintiff–Appellant,

v.UNIVERSITY OF UTAH, Defendant–Appellee.

No. 10–4150.

United States Court of Appeals, Tenth Circuit.

April 6, 2012.

David J. Holdsworth, Sandy, UT, for Plaintiff–Appellant.

J. Clifford Peterson, Assistant Utah Attorney General, (Mark L. Shurtleff, Utah Attorney General, with him on the brief), Salt Lake City, UT, for Defendant–Appellee.

Before MURPHY, HOLLOWAY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Michael T. Sabourin sued the University of Utah in the United States District Court for the District of Utah, claiming, among other things, that it had violated the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601–2654, by deciding to eliminate his position and then firing him for cause while he was on leave for childcare in June 2006. The district court granted the University summary judgment. Mr. Sabourin appeals the dismissal of his FMLA claims. We have jurisdiction under 28 U.S.C. § 1291 and affirm. All the claims fail because the undisputed facts show that the University's adverse decisions were not based on Mr. Sabourin's taking FMLA leave. The decision to eliminate his position was made before he sought FMLA leave; and he was fired for engaging in a course of insubordination.

I. BACKGROUNDA. Events Leading to Termination

Mr. Sabourin began his employment with the University of Utah as a contract employee in August 2003. In October 2004 he was switched to full-time status in the University's Department of Environmental Health and Safety (EHS). His position was program manager for emergency preparedness, with responsibilities that included managing grants from the Department of Homeland Security as well as training and educating emergency responders and public-information personnel. His salary and benefits were funded by grants procured by the University.

In April 2006 Mr. Sabourin's supervisor, Marty Shaub, asked the University's internal audit department to review EHS's administrative practices in handling grants. Later that month she received “a draft report that indicated there potentially were systematic problems, resulting in mistakes on individual grants.” Supp.App., Vol. 1 at 172 (internal quotation marks omitted). She gave Mr. Sabourin a copy of the report and asked him to generate a response “as quickly and as efficiently as possible.” Id. She met with him and a University auditor on May 25, about three weeks after he received his assignment; she was concerned that she still had not received a draft response and that “despite my efforts to reassure [Mr. Sabourin, he] had grown defensive in his tone when asked for updates.” Id. At the meeting Mr. Sabourin presented a spreadsheet on which he had begun to respond to the auditor's inquiries. According to Ms. Shaub, Mr. Sabourin agreed that he could complete a draft memorandum within three or four days. Ms. Shaub said that she and another supervisor “encouraged Mike to focus less on each individual line item in the beginning and more effort on the larger questions.” Id. Mr. Sabourin, however, said that he had received contradictory instructions from Ms. Shaub and the auditor and that he had attempted to be “very thorough” in responding to the audit. Aplt.App. at 59.

On May 31 Ms. Shaub sent an e-mail to the University's human resources department (HRD). The e-mail said that she had attached a memorandum that she would submit later that day to HRD's manager of employee relations. The memorandum stated that she intended to “impose a reduction in force” that would eliminate Mr. Sabourin's position on June 30 because of a depletion in grant money. Id. at 71. It also stated that Ms. Shaub would provide Mr. Sabourin with notice four weeks in advance of the position's end date, as required by University policy, and that she understood that Mr. Sabourin would “remain an employee for 30 days from the date of notice.” Id. HRD responded to the e-mail two days later, indicating that it had not seen the memorandum that Ms. Shaub had promised to send to the employee-relations manager. HRD asked Ms. Shaub to fax a signed copy of the memorandum so that it could begin the reduction-in-force process.

Independent of the arrangements for a reduction in force, on June 5 Mr. Sabourin discussed with Ms. Shaub taking FMLA leave because of childcare needs. He explained that his nanny had quit but that his wife (who also worked for the University) had submitted a shift-change request that would allow them to cover their childcare needs. Ms. Shaub referred him to HRD. According to Mr. Sabourin, she was “obviously annoyed” when he mentioned the possibility of taking FMLA leave and she told him, “Well, what about the internal audit? This is the only thing on the plate right now. We're not working on anything else.” Id. at 51 (internal quotation marks omitted).

The next day Ms. Shaub informed Mr. Sabourin that she was changing his schedule from Sunday through Thursday to Monday through Friday. According to Mr. Sabourin, he responded that his wife had now changed her schedule and that his childcare needs would be covered so long as his schedule remained what it had been. He states that she responded, “That's not my concern.” Supp.App., Vol. 1 at 147 (internal quotation marks omitted). The reason she gave him for changing his schedule was that Monday through Friday is “when university business takes place.” Id. (internal quotation marks omitted).

Mr. Sabourin formally requested FMLA leave on June 6 or 7. Leave was approved on June 8, to start the following day. According to the HR representative with whom Mr. Sabourin discussed the leave, he said that “he would be working from home to ‘clear his name’ ” and “had a potential job offer from another employer.” Id. at 215.

Ms. Shaub learned on June 8 or 9 that Mr. Sabourin was taking approved FMLA leave. Mr. Sabourin testified that the day before his leave began Ms. Shaub came to his office and “exploded,” “blew up,” and went “ballistic” about his leave, saying: “I'm your supervisor and I have to approve it and I don't think it's important enough for you to leave. You need to be answering the audit.... You can't take FMLA without me. Here's the form. It has a place for my signature and I haven't signed a damn thing.” Id. at 163 (internal quotation marks omitted). It appeared to him that “[s]he felt that I had gone over her head and that's not something you do to [Ms. Shaub].” Id. at 146.

The morning of June 9, Ms. Shaub stopped by Mr. Sabourin's office to look for “files that would allow me to complete the response to the auditor due that day” but found that every drawer had been emptied, that he had not left any copies of the spreadsheet or other paperwork related to the grants or the audit process, and that he had removed all his electronic files from the University server. Id. at 174. Also that morning, Mr. Sabourin had a conversation with an HRD employee about his conflicts with his supervisor; he gave her permission to call Ms. Shaub in an effort to resolve these issues. About 16 minutes after that conversation, Ms. Shaub left a voice-mail message at Mr. Sabourin's home, saying: “I was not aware of your plans to empty out your office” and “I must request that all of those files come back until we have an opportunity to negotiate how duplicates will go home with you.” Id., Vol. 2 at 403. Ms. Shaub also discontinued Mr. Sabourin's work cell phone and University e-mail access.

After his confrontation with Ms. Shaub on June 8 or 9, Mr. Sabourin “purposely did not speak with [her] directly” until he had a meeting with her and HRD on June 13. Aplt.App. at 67. At the meeting he returned some paper files, but not the spreadsheet or an after-action report (which summarized and evaluated a mock disaster-relief exercise). He said that he had submitted the after-action report to his instructor for a class at the College of Health and that the spreadsheet was 50% complete and at his home. He agreed to provide the spreadsheet the next day. As the meeting concluded he was given written notice of the reduction in force. The news displeased him. He changed his mind about providing the spreadsheet, saying that he was not required to work because he was on FMLA leave and that he would consult an attorney. And the next day he retrieved his report from the College of Health and took it home.

Shortly after Mr. Sabourin picked up the after-action report, Ms. Shaub left him a voice-mail message requesting that he “immediately” send her the report and that he provide electronic and hard copies of the spreadsheet “just as soon as you can get them up here.” Supp.App., Vol. 2 at 403. The message added, “[I]t was your choice, and it certainly is your right, to not do University business during your leave,” but “[w]e just need those files back up here, please.” Id.

Mr. Sabourin came to the office on June 15 but did not return any documents. Ms. Shaub left him another message that day, saying, “I understand you were in the office today but you did not leave the intra-action report or the spreadsheet.” Id. She stated in the message that she had “been instructed to request that you get it back here by 10:00 tomorrow morning or we'll file a police report stating that you've got University property without authorization.” Id. She further stated that she understood that these items were incomplete, but that she wanted them back “[i]n that format” by 10 a.m. Id. An HRD employee also left Mr. Sabourin two messages that day, warning that the University would file criminal charges if the property was not returned. Finally, a letter from Ms. Shaub dated June 15 notified Mr. Sabourin of a predisciplinary conference to address Mr. Sabourin's alleged delay and obstruction in returning University work and property. It expressed her “intent to terminate your employment for failing to return University files you removed from your...