[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 6, 2010
No. 09-10806
JOHN LEY
________________________
CLERK
D. C. Docket No. 04-02346-CV-GET-1
ELLEN SCHAAF,
Plaintiff-Appellant,
versus
SMITHKLINE BEECHAM CORPORATION,
d.b.a. GlaxoSmithKline,
GLAXOSMITHKLINE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 6, 2010)
Before DUBINA, Chief Judge, BIRCH and BLACK, Circuit Judges.
BLACK, Circuit Judge:
Appellant Ellen Schaaf worked for GlaxoSmithKline as a Regional Vice
President, but, after returning from maternity leave, was demoted to District Sales
Manager. Schaaf then sued GSK, alleging that her maternity leave impermissibly
contributed to her demotion. The district court granted summary judgment on
some of her claims and judgment as a matter of law on others, all in favor of GSK.
Schaaf appeals these orders; this Court affirms the district court.
I. BACKGROUND
Schaaf worked for GlaxoSmithKline (GSK) first as a Sales Representative
and then as a District Sales Manager (DSM) before assuming the role of Regional
Vice President (RVP) in 1999. In her new role as RVP, Schaaf was tasked with
overseeing a region that included all of Florida and a portion of southern
Georgia—a region that, at the time, had consistently failed to meet GSK’s sales
expectations. Schaaf’s superiors encouraged her to address these shortfalls by
approaching the RVP position with creativity and innovation, and indicated that
the goal of increasing sales volume in the faltering region was of central
importance. After a few years at the helm, the early signs indicated that Schaaf
had successfully risen to the challenge; under her direction, the region’s
performance increased markedly and its sales figures returned to satisfactory
levels.
2
Although initial indications seemed positive, problems between Schaaf and
her subordinates eventually tainted Schaaf’s managerial accomplishments. In July
2002, three DSMs working under Schaaf—Liz Murray, Stewart Miller, and Jose
Castrillo—lodged complaints with the GSK Human Resources (HR) department,
bemoaning Schaaf’s alleged unprofessional management style. HR then
interviewed each of these three DSMs, in addition to all of the other GSK
employees who reported directly to Schaaf. The other employees verified Murray,
Miller, and Castrillo’s initial complaints regarding Schaaf’s management, and, in
some cases, further elaborated on her alleged faults.
The interviews revealed both broad complaints and specific grievances
about Schaaf. For example, the employees complained about Schaaf’s
antagonistic and inflexible management style, chronic inaccessibility, poor
communication skills, harsh and demanding demeanor, and tendency to play
favorites, as well about her failure to provide written feedback on performance
appraisals, her practice of sharing some DSMs’ confidential performance-
evaluation information with other employees, her unwillingness to respond to
voice-mail messages for weeks at a time, and her failure to acknowledge the
contributions of her subordinates. The interviews left no question as to how the
DSMs viewed Schaaf as a supervisor. For instance, one employee lamented the
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“[t]errible” state of the region’s morale, explaining, “Morale can’t be positive.
Just no way. You don’t know when she is going to strike. Only thing predictable
is that it’s going to be nasty . . . .” Another reported that Schaaf was simply “not
open to hearing differing viewpoints,” and a third starkly described Schaaf as
“very cold and uncaring.” Schaaf’s subordinates reiterated that Schaaf’s
management defects contributed significantly to the group’s low morale.
After these initial interviews with the subordinates, GSK also interviewed
Schaaf to offer her a chance to respond to their concerns. GSK then determined
that the employees’ grievances were severe and pervasive enough to warrant
taking formal disciplinary action against Schaaf by issuing her a Verbal Warning.
Lisa Gonzalez, Schaaf’s immediate superior, also instructed Schaaf to complete a
so-called Performance Improvement Plan (PIP) with the goal of bettering her
communication skills and management style. According to GSK, the
improvement plan was designed to allow Schaaf an opportunity to correct her
shortcomings and to foster improved relationships with her subordinates—for
instance, the PIP required Schaaf to issue previously uncompleted written
performance reviews to her subordinates, to attend management-training
programs, and to complete team-building exercises with her subordinates.
4
Incidentally, in July 2002, the same month that Murray, Miller, and Castrillo
first complained to HR, Schaaf informed Gonzalez, her superior, that Schaaf was
pregnant with her fourth child and planned to take maternity leave beginning in
early 2003.1 As a result, Schaaf expressed some concern regarding her ability to
complete the PIP prior to the commencement of her leave. Rather than making a
diligent attempt to satisfy the plan’s requirements and to demonstrate her
willingness to improve herself professionally, however, Schaaf instead ignored
several PIP deadlines, including deadlines to register for the required management
courses and to complete the written performance evaluations. Schaaf even failed
to meet the deadline for simply returning a signed copy of the plan to her
superiors. As a result of this demonstrated unwillingness to cooperate, Schaaf did
not satisfy the PIP’s requirements by the target date of December 5, 2002.
Gonzalez then extended this time frame until mid-January 2003, and, when Schaaf
likewise failed to meet this new deadline, Gonzalez extended it again until after
Schaaf returned from her maternity leave.
Schaaf began her leave on January 21, 2003. During her absence, an
interim RVP took her place, and the subordinates reported that the region
1
Despite the temporal proximity of these events, there is nothing in the record indicating
that any of Schaaf’s subordinates knew either that Schaaf was pregnant at the time or that she
planned to take leave a few months later.
5
functioned significantly better while Schaaf was gone. While serving as RVP, the
interim also discovered and corrected several significant administrative problems
that had occurred under Schaaf’s watch, including scores of expense reports that
Schaaf had ignored and several invoices from outside creditors that Schaaf had
failed to pay. The subordinates reported that, under the interim RVP, productivity
had increased, communication had improved, and morale was markedly higher.
Shortly before Schaaf’s return, the DSMs requested a meeting with
Gonzalez, Schaaf’s superior, to express their concerns that the region’s increased
morale and productivity could dissipate immediately if Schaaf resumed her role as
RVP. Gonzalez took these reservations seriously: when Schaaf returned to work
on April 15, 2003, she was immediately instructed to travel to Gonzalez’s office in
North Carolina. Once there, Gonzalez gave Schaaf a choice: she could either
accept a demotion to District Sales Manager or leave the company, but in any case
she would not be reinstalled as RVP. Schaaf eventually accepted the demotion to
DSM, and submitted a request for a written statement of the reasons for her
demotion.
GSK provided the requested written response, in which it informed Schaaf
that her subordinates had complained of her overbearing and hostile management
style and that her region functioned markedly better in her absence. GSK also
6
indicated that Schaaf’s failure to complete the PIP requirements and her
demonstrated unwillingness to change her management behavior contributed to
her demotion. Schaaf then sued, claiming that GSK impermissibly demoted her
for reasons related to her statutorily protected maternity leave.
II. DISCUSSION
Schaaf raises a number of issues on appeal, but her primary arguments
center on whether GSK violated Schaaf’s rights under the Family and Medical
Leave Act (FMLA). Schaaf alleges that GSK violated the statute both by
(1) interfering with her FMLA rights and (2) retaliating against her for exercising
those rights.
The district court granted judgment as a matter of law in GSK’s favor on
both of these claims. On appeal, this Court reviews that grant de novo, and it
draws all reasonable inferences in favor of Schaaf, the nonmoving party. See
Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 2004). The standards
set forth by Federal Rule of Civil Procedure 50 guide the de novo evaluation; that
rule permits a court to “grant a motion for judgment as a matter of law against [a]
party” if it “finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50. Granting
such a motion is proper when “the facts and inferences point overwhelmingly in
7
favor of one party, such that reasonable people could not arrive at a contrary
verdict.” Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989).
While Rule 50 provides the legal standards for determining whether
judgment as a matter of law was appropriate in this case, the FMLA provides the
substantive law under which this Court evaluates Schaaf’s allegations. The
statute’s purpose, among others, is to provide employees with the flexibility
needed to care for a newborn child. To this end, the statute affords eligible
workers up to twelve weeks of unpaid leave per year to attend to the birth and care
of the new child. 29 U.S.C. § 2612(a)(1)(A); Martin v. Brevard County Pub. Sch.,
543 F.3d 1261, 1265 (11th Cir. 2008). Then, when an employee returns from
leave, the FMLA requires that the employer reinstate that employee to the position
she held when her leave began, or to another position that is equivalent in terms of
benefits, pay, and other relevant conditions of employment. § 2614(a)(1); Martin,
543 F.3d at 1267.
Importantly, however, this reinstatement right is not absolute; rather, “an
employer can deny reinstatement if it can demonstrate that it would have
discharged the employee had [s]he not been on FMLA leave.” Martin, 543 F.3d at
1267 (quotations omitted). But, if an employee is not reinstated, the employer
bears the burden of proving that the employee was discharged for independent
8
reasons that were unrelated to the employee’s leave. Parris v. Miami Herald
Publ’g Co., 216 F.3d 1298, 1301 n.1 (11th Cir. 2000).
A. FMLA Interference Claim
Schaaf’s two FMLA claims are similar, as both involve GSK’s decision to
demote her upon her return from FMLA-protected leave. In her first claim, Schaaf
casts her demotion as interference with—that is, denial of—her FMLA rights: the
FMLA entitled Schaaf to reinstatement upon her return, and she was not
reinstated.
To succeed under this interference theory, Schaaf must demonstrate only
that she was “denied a benefit to which [s]he was entitled under the FMLA.”
Martin, 543 F.3d at 1266–67. Schaaf maintains that she successfully made this
showing by proving that she was demoted upon her return from maternity leave,
thereby establishing that GSK denied her the benefit of reinstatement to which she
was entitled. GSK, on the other hand, contends that it demoted Schaaf for
independent performance-related reasons, and that, consequently, it did not violate
the FMLA.
Neither party disputes that Schaaf made a prima facie showing of an FMLA
interference claim, in that she demonstrated she was not reinstated to the same
position she held prior to taking her FMLA leave. Thus, the crux of this issue is
9
whether GSK proved to a legal certainty that Schaaf was demoted for reasons
unrelated to her FMLA leave, such that she would have been demoted even if she
had not taken leave. See Martin, 543 F.3d at 1267. Because GSK offered
evidence showing that Schaaf was demoted as a result of her ineffective
management style, and Schaaf does not offer any evidence to the contrary, the
district court did not err in granting GSK’s motion for judgment as a matter of law.
Essentially, Schaaf’s arguments rely on one basic premise: because GSK
learned of Schaaf’s hostile temperament, ineffective management practices, and
administrative ineptitude while she was on leave, it follows that GSK would not
have discovered these derelictions had Schaaf not taken maternity leave. Thus,
Schaaf concludes, her maternity leave caused her demotion because, but for the
leave, GSK would have had no reason to demote her.2
This argument, however, is legally incorrect and logically unsound. In an
FMLA interference case, courts examine not whether the FMLA leave was the
but-for cause of an employee’s discharge or demotion, but rather whether it was
the proximate cause. Although this Court has not yet had occasion to address the
familiar distinction between but-for and proximate causation in the FMLA
2
Schaaf uses this very language to make her argument; for instance, in her Reply Brief,
Schaaf asserts, “[A] jury could find that but-for Ms. Schaaf’s leave, she would not have been
demoted.” Schaaf reiterated this position at oral argument.
10
context, a brief examination of the statute’s purpose readily illustrates the flaw in
Schaaf’s position.
The purpose of the FMLA is to allow individuals to temporarily put their
careers on hold in order to tend to certain personal matters, like the care of a
newborn child. Its purpose is not to aid an employee in covering up her work-
related deficiencies. If an employee were demoted or discharged for the reason
that she took an FMLA leave, individuals would then be reluctant to take leave to
care for their new children. Thus, because the statute’s purpose would have been
frustrated, it follows that the employee should be able to sue for FMLA
interference and recover damages against the employer. Such a suit also would
have the ancillary benefit of helping to deter other impermissible demotions and
discharges in the future.
On the other hand, the statute’s purpose is not implicated in the least if an
employee’s absence permits her employer to discover past professional
transgressions that then lead to an adverse employment action against the
employee. In such a situation, the employer is motivated not by the taking of the
leave itself, but rather by prior deficiencies that, whenever they were discovered,
would have prompted demotion or discharge whether or not the employee took
FMLA leave. Moreover, future individuals who seek FMLA leave would have no
11
reason to fear demotion or discharge upon their return, unless they, too, had been
professionally deficient.
Other courts have likewise recognized this distinction. For instance, in a
Seventh Circuit case an employer discovered deficiencies in an employee’s
work while the employee was on FMLA leave. Kohls v. Beverly Enters. Wis., Inc.,
259 F.3d 799, 806 (7th Cir. 2001). That court explained, “The fact that the leave
permitted the employer to discover the problems can not logically be a bar to the
employer’s ability to fire the deficient employee.” Id. There, like here, that the
FMLA leave allowed the employer to uncover prior deficiencies does not mean
that the employee was fired because of the FMLA leave.
The district court for the Northern District of Georgia has applied similar
logic. See Wu v. Se.-Atl. Beverage Corp., 321 F. Supp. 2d 1317 (N.D. Ga. 2004).
In Wu, the district court explained, “[T]he fact that plaintiff’s leave is what
permitted [the employer] to discover the problems with plaintiff’s work
performance is of no consequence. Although one could say that plaintiff might
not have been demoted if he had not taken leave (at least not at that time), the
leave was not the proximate cause of the demotion.” Id. at 1341.
This distinction between but-for and proximate causation makes good sense
in the FMLA context. Holding that but-for causation is somehow sufficient to
12
support an FMLA claim would permit wanton abuse of the FMLA with perverse
consequences. For instance, Schaaf’s suggested reading of the statute would
effectively protect deficient employees from adverse employment actions, such
that those workers could actually attain job security by seeking leave under the
FMLA. These employees could take leave and actually hope their employers
uncover evidence of their transgressions while they are away. If such evidence
were revealed, the statute would prevent their employer from ever taking adverse
action against them, as the leave would always be the but-for cause of the
discovery of that evidence. Such a laughable result is not supported by policy, by
common sense, or, most importantly, by the statute itself.
Here, the evidence shows that Schaaf was demoted because of managerial
ineffectiveness that revealed itself in full only in her absence; she was not demoted
because (i.e. for the reason that) she took FMLA leave. It does not appear that
Schaaf presented the district court with any evidence to the contrary, and she does
not identify any in her appellate briefs. Accordingly, because “a reasonable jury
would not have a legally sufficient evidentiary basis to find” that Schaaf was
demoted because she took FMLA leave, see Fed. R. Civ. P. 50, the district court
did not err in granting judgment as a matter of law in favor of GSK on Schaaf’s
FMLA interference claim.
13
B. FMLA Retaliation Claim
Schaaf’s second claim likewise centers on the demotion that immediately
followed her return from leave. Under this alternate theory, Schaaf casts her
demotion not as interference with her FMLA rights, but rather as retaliation for
exercising those statutory rights. In essence, Schaaf alleges that she took
leave—an activity protected by the statute—and that she was demoted as a result.
To succeed under this retaliation theory, Schaaf must show that GSK
intentionally “discriminated against [her] because [s]he engaged in activity
protected by the Act.” Strickland v. Water Works & Sewer Bd. of Birmingham,
239 F.3d 1199, 1206 (11th Cir. 2001). Essentially, Schaaf must show that she
suffered an adverse employment action that was “motivated by an impermissible
retaliatory or discriminatory animus.” Id. at 1207.
In an FMLA retaliation case, unless there is direct evidence of the
employer’s retaliatory intent, this Court employs the burden-shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817 (1973). Martin, 543 F.3d at 1268. Under the McDonnell
Douglas framework, the plaintiff must first establish a prima facie case by
demonstrating (1) she engaged in statutorily protected activity, (2) she suffered an
adverse employment decision, and (3) the decision was causally related to the
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protected activity. Id. For the purposes of this analysis, this Court will assume
without deciding that Schaaf has successfully established a prima facie case for
FMLA retaliation: she has shown (1) she took leave to care for her newborn child,
(2) GSK demoted her, and (3) her demotion was temporally proximate to her
leave. See id. (“[T]he close temporal proximity between [the plaintiff’s leave and
her termination] . . . is more than sufficient to create a genuine issue of material
fact of causal connection.”).
Even assuming Schaaf successfully established a prima facie case, however,
this assumption satisfies only the first step of the McDonnell Douglas framework.
Under this burden-shifting analysis, once Schaaf shows a prima facie retaliation
claim, the burden then shifts to GSK to articulate a legitimate, nondiscriminatory
reason for her demotion. See id. A review of the record indicates GSK has readily
satisfied this burden: GSK produced testimony regarding Schaaf’s poor
management practices, astringent leadership style, and inability to communicate
effectively with her subordinates. GSK then explained that it learned of these
deficiencies while Schaaf was on leave, and accordingly addressed the issue when
Schaaf returned. These performance-related factors indicate that Schaaf’s
demotion was for legitimate reasons unrelated to her FMLA leave; as a result,
15
GSK has satisfied its burden of providing independent, nondiscriminatory bases
for the adverse employment action.
Under McDonnell Douglas, the burden then shifts back to Schaaf to show
that GSK’s supposedly independent reasons were, in reality, merely a pretext for
discrimination. Id. To satisfy this burden, Schaaf must present evidence
“sufficient to permit a reasonable factfinder to conclude that the reasons given by
the employer were not the real reasons for the adverse employment decision.” See
id. (quotations omitted). Ultimately, Schaaf has failed to satisfy this burden.
In alleging that GSK’s reasons were merely pretextual, Schaaf primarily
emphasizes (1) GSK deviated from its disciplinary procedures by demoting Schaaf
rather than issuing her a written warning and (2) a jury could have chosen to
disbelieve GSK’s stated rationale because the company knew of some of Schaaf’s
deficiencies but nevertheless initially intended to reinstate her as RVP upon her
return. None of this evidence, however, demonstrates that GSK’s reasons were
merely a pretext for discrimination.
First, although evidence that GSK deviated from its ordinary disciplinary
procedures may have caused a jury to entertain the possibility of an alternate
explanation for Schaaf’s demotion, Schaaf offered no evidence that would have
16
allowed a jury to find that there was such an alternate explanation.3 Schaaf did not
present any evidence suggesting that GSK was motivated by a discriminatory
animus, nor did she offer any evidence showing that GSK’s reasons were bad
ones—that is, she did not argue that she was not an aggressive, insensitive leader
with poor communication skills. On the whole, GSK showed that it demoted
Schaaf for purely performance-related reasons and, to the extent it deviated from
its disciplinary procedures, it seems to have done so because of the nature of the
situation.4 Even drawing all inferences in favor of Schaaf, there is nothing on
which a reasonable jury could base a finding that GSK demoted Schaaf for
anything other than poor performance.
Schaaf’s second argument—that the jury could have disbelieved GSK’s
nondiscriminatory rationale because the company knew of some of Schaaf’s
deficiencies but initially intended to reinstate her as RVP—is likewise
unpersuasive. That GSK perhaps intended to reinstate Schaaf before learning of
3
In applying the McDonnell Douglas burden-shifting analysis in the context of Title VII
employment discrimination, this Court has explained that “merely establishing pretext, without
more, is insufficient to support a finding of . . . discrimination. The plaintiff must show he
suffered intentional discrimination because of” a protected ground. See Hawkins v. Ceco Corp.,
883 F.2d 977, 981 n.3 (11th Cir. 1989). Thus, it is insufficient to show merely that an
employer’s reasons are pretextual; rather the plaintiff must show that the reasons are a pretext for
discrimination. In this case, then, even if Schaaf has successfully cast some doubt on GSK’s
nondiscriminatory rationale, she did not show that the rationale was a pretext for discrimination.
4
GSK notes that the company’s discipline policy specifically provides the flexibility to
deviate from the normal procedures if the circumstances so require.
17
the full extent of her ineffective and oppressive management style only bolsters
GSK’s explanation that the proximate cause of Schaaf’s demotion was
professional ineffectiveness; it in no way indicates that the demotion constituted
impermissible retaliation.5 Even viewing these events in the light most favorable
to Schaaf, there is no contrary inference that a reasonable jury could draw.
Accordingly, the district court did not err in granting GSK’s motion for judgment
as a matter of law on Schaaf’s FMLA retaliation claim.
III. CONCLUSION
Because a reasonable jury would not have a legally sufficient evidentiary
basis to find in Schaaf’s favor on either of her FMLA claims, the district court did
not err in granting GSK’s motion for judgment as a matter of law.6
AFFIRMED.
5
Gonzalez, Schaaf’s superior, testified that she initially intended to bring Schaaf back as
RVP following her maternity leave, but that her opinion changed after meeting with the DSMs
on April 1, 2003. Gonzalez explained, “[My opinion changed] [b]ecause I concluded from the
feedback from the managers that Ellen had not shown any change and I didn’t think she had any
intention of showing any change.” This demonstrates not that Gonzalez discriminated against
Schaaf, but, rather, that she permissibly credited the feedback of the DSMs regarding Schaaf’s
professional practices.
6
Schaaf raises several other issues on appeal, including the disposition of her claims for
pregnancy discrimination and discriminatory discipline, as well as a number of rulings on
evidentiary and sanctions matters. After reviewing the briefs and having had the benefit of oral
argument, this Court holds that these contentions are meritless and it affirms the district court’s
disposition as to each issue.
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