Didier v. Abbott Laboratories

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 31, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JEREMY DIDIER,

Plaintiff - Appellant,

v. No. 14-3125
(D.C. No. 2:13-CV-02046-JWL)
ABBOTT LABORATORIES; ABBOTT (D. Kan.)
LABORATORIES, INC.; ABBOTT
PRODUCTS, INC.; ABBVIE, INC.,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________

From 2002 until her termination in 2012, Jeremy Didier, a woman, was an

employee of Abbott Laboratories (“Abbott”) and its predecessor Solvay

Pharmaceuticals (“Solvay”). Didier began working at Solvay as a sales

representative, and by 2010 she had been promoted to the position of District

Manager. Her promotion brought with it a new supervisor, K. Byron Rex. Didier

contends that while they worked together Rex made numerous comments about her

ability to balance caring for her young children with her work responsibilities,

comments he never uttered to male employees with young children.

*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 Three events form the backdrop of this case. First, in 2011 Didier requested

and was granted intermittent leave under the Family Medical Leave Act (“FMLA”) to

take her two young children to medical and therapy appointments for a few hours

each week. Second, later in 2011, Didier submitted what the company considered an

inappropriate reimbursement request for gifts to the sales representatives she

supervised. She had been counseled against making such requests, and Abbott’s

continued concern over problems in her expense reports led it to launch an

investigation. Third, and concurrent with this investigation, Rex expressed concern

over other reimbursement requests Didier submitted. Abbott’s numerous concerns

regarding Didier’s reimbursement requests led it to launch a second investigation that

culminated in Didier’s termination in March 2012.

After her termination, Didier filed charges with the Equal Employment

Opportunity Commission (“EEOC”). She alleged sex and religious discrimination,

interference with her FMLA rights, FMLA retaliation, and other violations not

pursued on appeal. Didier eventually received a right-to-sue letter and filed suit in

federal district court. She alleged claims similar to those she had brought before the

EEOC.

After the parties conducted discovery in district court, Abbott filed a motion

for summary judgment on all claims. Without a hearing, the district court granted

summary judgment in Abbott’s favor. Didier now appeals the district court’s grant of

summary judgment on three of the five claims she raised below: (1) sex

2
discrimination under Title VII; (2) FMLA interference; and (3) FMLA retaliation.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND1

A. Factual Background

From 2002 until 2010, Didier was an employee of Solvay. After Abbott

acquired Solvay in 2010, Didier became an employee of Abbott and remained as such

until her termination on March 8, 2012. During her employment with Solvay/Abbott,

Didier was promoted three times, her last position being Kansas City District

Manager. Her final promotion to District Manager was approved by the man who

became her direct supervisor, K. Byron Rex.2

Before turning to Didier’s termination, we first lay out a few necessary details

regarding the background of her employment and her relationship with her

supervisor. The first details pertain to her supervisor. Didier contends that Rex has a

history of making inappropriate comments regarding his views on the role of women

in society and in the workplace. Didier highlights the following: (1) in 2001, Rex

voiced his opinion that young women with children should stay home, suggesting to a

female sales representative who resigned after these comments that she should

1
As this matter is before us on summary judgment, we state the facts in the
light most favorable to Didier, the nonmoving party. See Bohn v. Park City Grp.,
Inc., 94 F.3d 1457, 1460 (10th Cir. 1996).
2
There is some dispute between the parties over the exact selection process,
and in particular whether Rex selected Didier “from all of the other sales
representatives in the district.” Regardless, there is no dispute that her promotion was
subject to his approval.
3
welcome the opportunity to remain home with her children; (2) in 2009, Rex

questioned Didier during her district-manager interview about whether she could do

the job with four young children and a husband who worked full-time; (3) in 2009,

Rex urged Didier not to report a male employee who was making false and

disparaging comments about her, and then became angry at Didier after he was

reprimanded for giving that advice; (4) in 2010, Rex reported Didier for personal use

of a corporate credit card although he had failed to report his male subordinates for

similarly using their corporate cards for personal expenses despite their frequently

doing so; (5) in 2012, Rex instructed Didier to “focus on your faith and your family”

when she expressed worry for her job security during Abbott’s investigation of her,

and he repeatedly sought assurances from Didier throughout Abbott’s investigation

that her husband had a good job and that her family “would be okay” if she was fired;

(6) in 2012, during a discussion of a female sales representative, Rex mentioned to

Troy Petrick, a District Manager, that one way to get rid of employees was to turn

them in for expense-reporting violations; and (7) in 2012, after Didier’s termination,

Rex raised concerns with Terri Garrett, Didier’s successor as District Manager, about

the commitment of two high-performing female representatives to their work due to

their childcare responsibilities.3

The second pieces of necessary background concern Abbott and Solvay’s

reimbursement policies for food reimbursement and travel booking. Regarding food

3
Didier also notes that concerns about Rex’s attitude towards women in the
workplace eventually caused Garrett, also a woman, to leave Abbott.
4
reimbursement, Solvay had a written policy stating that employees could incur only

those travel and entertainment expenses that were reasonable and necessary to

conduct business: for meals, it offered ballpark figures of $15 for breakfast, $20 for

lunch, and $50 for dinner. Abbott’s policies and approval procedures are a bit more

detailed and are contained in its Travel & Entertainment (“T&E”) policy. The T&E

policy requires supervisor approval of all corporate expenses, prohibits

reimbursement for personal expenses, and disallows corporate reimbursement of

expenses incurred for anyone other than an Abbott employee (except for meals for

spouses required to attend an Abbott event). Abbott generally reimburses dinner

expenses only for employees traveling overnight on a business trip, but if an

employee is not traveling overnight on a business trip, the policy also reimburses

dinner when an employee arrives home late due to work if the employee annotates

such an expense in the explanation of her expense report.

Despite these clear policies, Didier maintains there were also certain unwritten

guidelines regarding travel and food expenses that were widely known and followed

by employees at both Solvay and Abbott. These included wide latitude regarding the

application of suggested amounts to food expenses, which she contends meant she

could apply that amount towards the cost of a meal that she ate either by herself or

with her family. Didier states that she frequently did this, and that Rex routinely

approved these expenses when he was her supervisor at both Solvay and Abbott.

Concerning travel booking, only Abbott’s policies are relevant here. Abbott

requires employees to book all travel through its authorized travel agency. If for

5
whatever reason an employee must book travel through an alternative channel, she

must submit a Travel Agency Exception Form together with her expense report for

corporate reimbursement. Among other requirements, this form requires that the

employee explain why she did not book her ticket through Abbott’s travel agency and

requires a signature from her supervisor.

Finally, given that two of Didier’s three claims before us concern her use of

FMLA leave, we provide background concerning Didier’s FMLA usage. In

November 2011, Didier began taking intermittent FMLA leave to take her two young

sons to therapy and medical appointments for a few hours each week. Rex and his

supervisor, Marty Comer, were aware of Didier’s FMLA leave. In 2012, Didier took

a few hours of such leave on January 9th, 12th, 18th, 20th, and 27th, as well as

February 6th and 10th.

We now turn to the key issues undergirding the claims before us. These began

in December 2011, when Didier sought reimbursement for gift baskets she had

purchased for members of her sales team. In April and May 2010, Abbott had

counseled Didier that such expenses were inappropriate for reimbursement. Abbott’s

Corporate Disbursement Department flagged this submission, causing Susan

Ballard—a Disbursement Analyst—to review more closely Didier’s recent

reimbursement requests. In her review, Ballard noted that Didier had frequently

submitted meals for reimbursement without an overnight stay and—based on these

irregularities—Ballard initiated an audit of the past two years of Didier’s

reimbursement requests. Ballard summarized these findings in a Corporate

6
Disbursement Case Report, which she submitted to Abbott’s Office of Ethics and

Compliance (“OEC”) for further investigation.4

Contemporaneous with this series of events, Rex was having his own issues

with Didier’s unrelated January 12, 2012, expense report. Specifically, Rex had two

concerns: (1) Didier had submitted a Travel Agency Exception Form without

obtaining his signature (Didier had instead written Rex’s name on the signature line

and noted that his signature was “on file”); and (2) Didier had submitted for

reimbursement a dinner on January 2, 2012 for her family in the amount of $53.53.

Regarding the first concern, Rex discussed with Didier her use of a method other than

Abbott’s designated travel agency to book travel and asked her to revise and resubmit

the form, which he eventually signed. Regarding the second, however, Rex had more

issues. He was alarmed both because January 2 was a company holiday on which

Didier would not have been traveling for work and because she had submitted an

expense for a family dinner. Upon confronting Didier about the family-dinner

expense, Rex said to Didier, “Please tell me we’ve not been paying for dinners for

your family all this time.” In response, Didier told Rex that he had approved family-

dinner expenses for years and that she believed these expenses complied with the

T&E policy. While conceding she had not worked on January 2, she also tried to

justify the family-meal expense by pointing out that she had an early flight the next

morning.

4
The OEC is responsible for ensuring compliance with Abbott’s Code of
Business Conduct (the “Code”).
7
 After this discussion with Rex, Didier called Abbott’s Corporate Disbursement

Call Center to confirm her understanding of the T&E policy. She alleges that she

spoke with DeMario Hudson, a call center representative, and that Hudson told her:

(1) that she could claim an expense for a family meal at a reasonable amount as long

as she was traveling for at least five hours on the day of the meal, and (2) that her

manager had discretion to approve a family-meal expense incurred the night before

an early morning departure. Didier sent an email providing a brief summary of her

understanding of the call to Rex. But when Rex forwarded this email to Hudson for

confirmation, Hudson told him that Didier had inaccurately reported the substance of

their call. Rex then informed Didier that Hudson disagreed with her description of the

call. Didier contends that she again called Hudson and that he once again confirmed

her understanding of the T&E policy; she wrote Rex another email to this effect.

Hudson states that, although he and Didier discussed certain reimbursable expenses

in both phone calls, they never discussed the reimbursability of family-meal expenses

during either call and thus Didier’s emails to Rex contending otherwise were

inaccurate.

On January 24, 2012, Rex called Abbott’s Human Resources Department to

voice his concern over Didier’s January 12 expense report, both for her writing his

name on the signature line without his consent and for her claiming reimbursement

for the family-meal expense. He also expressed alarm that Didier had repeatedly

misrepresented the content of her discussions with Hudson. In response, Abbott

assigned Cherylle LaFleur, an Employee Relations Manager, to investigate Rex’s

8
concerns. In the course of her inquiry into Didier’s conduct, LaFleur spoke with

Ballard to ask some questions about general expense practices. During their

discussion, Ballard informed LaFleur that the Corporate Disbursement Department

had already separately looked into Didier’s expense practices and that Ballard had

submitted her findings to the OEC. LaFleur then separately submitted a New Case

Report to the OEC. LaFleur’s Case Report asked the OEC to investigate whether

Didier had: (1) falsified her supervisor’s signature/approval on a company document;

(2) submitted questionable expenses; and (3) intentionally misquoted Hudson in an

attempt to justify her questionable expenses.

The OEC assigned Julie Fendel, a Global Security Investigator, to examine the

allegations concerning Didier.5 Fendel independently investigated the evidence

regarding Didier’s expense reports and her writing of Rex’s name on her Travel

Exception Form. Fendel’s report concluded that Didier had incorrectly submitted

numerous family meals for reimbursement, that her excuse for doing so was “not

credible,” and that she had not followed appropriate procedures for submitting her

Travel Exception Form but had instead tried to circumvent the system by writing that

Rex’s signature was “on file.” Thus, Fendel’s investigation determined that Didier’s

conduct had violated at least two principles of the Code.

When an investigation determines that an employee has violated the Code,

Abbott’s policies require that the assigned Employee Relations Manager review the

5
Global Security is the division within Abbott that conducts investigations
into alleged loss incidents.
9
investigative findings on a case-by-case basis to determine the appropriate

disciplinary action. In Didier’s case, this responsibility fell to LaFleur. LaFleur

reviewed Fendel’s findings and, believing Didier’s actions to be egregious and to

include intentional attempts to falsify, recommended that Abbott terminate her

employment. After recommending a termination, an Employee Relations Manager

must under the policy discuss her reasons for recommending termination with the

business management team (Rex and his supervisor Comer) to ensure they support

the recommendation. Both Comer and Rex supported LaFleur’s decision, elevating

the recommendation further up Abbott’s bureaucratic hierarchy.6 On March 8, 2012,

after all necessary parties had signed off, Abbott terminated Didier’s employment.

B. Procedural Background

On August 13, 2012, Didier filed charges with the EEOC alleging sex and

religious discrimination, interference with her FMLA rights, FMLA retaliation, and

other violations not raised on appeal. On October 29, 2012, Didier received a right-

to-sue letter. On January 25, 2013, she filed the complaint underlying this appeal in

federal district court, alleging similar claims to those raised with the EEOC. After

discovery, Abbott moved for summary judgment on all claims. Without holding a

hearing, the district court granted summary judgment in Abbott’s favor. Didier now

6
Per Abbott’s policy, the recommendation to terminate Didier had to receive
the additional approval of Kristin Slatttery, Senior Employee Relations Manager,
Laura Hennessy, Senior Employee Relations Manager, Mindy Necci, Senior Business
Human Resources Manager, Kristyn Gamoke, Business Human Resources Director,
and Leanna Walther, Business Human Resources Vice President.
10
appeals the district court’s ruling regarding three of the five claims she raised below:

(1) sex discrimination; (2) FMLA interference; and (3) FMLA retaliation.

DISCUSSION

A. Standard of Review

We review de novo the district court’s grant of summary judgment. Manard v.

Fort Howard Co., 47 F.3d 1067, 1067 (10th Cir. 1995). In doing so, we view all of

the facts in the light most favorable to Didier as the non-moving party and draw all

reasonable inferences in her favor. See Bohn v. Park City Grp., Inc., 94 F.3d 1457,

1460 (10th Cir. 1996). “Summary judgment is appropriate when there is no genuine

dispute over a material fact and the moving party is entitled to judgment as a matter

of law.” Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991).

B. Sex Discrimination

i. Direct or Circumstantial Evidence?

To prevail on a Title VII sex-discrimination claim, a plaintiff may offer either

direct or circumstantial evidence of discrimination. See Tabor v. Hilti, Inc., 703 F.3d

1206, 1216 (10th Cir. 2013). When she offers direct evidence, her claim proceeds

without being subject to the burden-shifting framework announced by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See also

Tabor, 703 F.3d at 1216. Direct evidence is evidence that, on its face, demonstrates

that the employment decision was reached for discriminatory reasons. Danville v.

11
Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002). In contrast, we have held that

workplace comments such as those attributed to Rex (1) cannot qualify as direct

evidence unless the plaintiff shows that the speaker had decision-making authority

and acted on his discriminatory beliefs, (2) do not qualify as direct evidence if the

context or timing is not closely linked to the adverse decision, and (3) cannot

constitute direct evidence if they can plausibly be interpreted in two different ways—

one discriminatory, one benign. See Tabor, 703 F.3d at 1216.

Didier claims that the district court should have considered Rex’s numerous

comments regarding women in the workplace as direct evidence of discrimination. She

contends that Rex’s comments reflected his animus toward her and related directly to his

decision to approve her termination. As support for treating Rex’s comments as direct

evidence of discrimination, she likens them to similar comments we treated as direct

evidence in Tabor. Didier further argues that, since she presented direct evidence of sex

discrimination, the district court improperly applied McDonnell Douglas’s burden-

shifting framework and erred in granting summary judgment on her sex-discrimination

claim.

Abbott believes the district court correctly determined that Didier could not

proceed under the direct-evidence standard to support her sex-discrimination claim. It

contends that Didier has presented no evidence demonstrating on its face that her status

as a woman with young children either caused Rex to report her violations or caused

LaFleur to terminate her employment. It points out that the crux of Didier’s evidence is a

12
number of statements Rex made unrelated to Didier, and that Didier cannot rely on these

statements as direct evidence.

Before Tabor, we consistently noted that discriminatory remarks in the workplace

based on sex stereotypes could not constitute direct evidence of sex discrimination unless

they demonstrated an existing policy that itself constituted discrimination. See, e.g., Heim

v. Utah, 8 F.3d 1541, 1546–47 (10th Cir. 1993); Ramsey v. City & Cty. of Denver, 907

F.2d 1004, 1008–09 (10th Cir. 1990). But in Tabor, we appeared to carve out a limited

exception to that rule. There, the decision-maker made the objectionable comments while

interviewing a woman for a promotion she later was denied, and the stereotypes invoked

by the decision-maker spoke directly to the plaintiff’s fitness to undertake the job for

which she was interviewing. Tabor, 703 F.3d at 1217. We held that the content of these

statements, the interview context in which they were made, and the temporal proximity of

the comments to the adverse employment decision directly linked these statements to the

decision not to promote. Id. Thus, we concluded that these statements constituted direct

evidence of sex discrimination. Id.

Unfortunately for Didier, the comments she alleges Rex made—while archaic and

unsuitable for the twenty-first century workplace—lack either the context, the temporal

proximity, or the clear discriminatory connotation sufficient to constitute direct evidence.

Considering them individually may help to clarify this conclusion. The first three

comments Didier points us to are: (1) in 2001, Rex expressed his opinion that young

women with children should stay home, and suggested to a female sales representative

who resigned following these comments that she should welcome the opportunity to

13
remain home with her children; (2) in 2009, Rex questioned Didier during her interview

for the District Manager position about her ability to do the job because she and her

husband worked full time and she had four young children; and (3) in 2009, Rex urged

Didier not to report a male employee who was making false and disparaging comments

about her, and then became angry at Didier when he was reprimanded for giving that

advice. Given that the initial investigation of Didier began in November 2011 and she

was fired in 2012, these earlier comments and actions lack sufficient temporal proximity

to Didier’s firing to amount to direct evidence of discrimination. Compare id. with Riggs

v. AirTran Airways, Inc., 497 F.3d 1108, 1118 (10th Cir. 2007) (noting that there must be

some “direct link” between the discriminatory treatment and the termination decision,

including close temporal proximity, for the treatment to constitute direct evidence of

discrimination in the termination decision), and Stover v. Martinez, 382 F.3d 1064, 1074

(10th Cir. 2004) (listing cases, including one holding that a four-month period between

the protected activity and alleged discrimination lacked sufficient temporal proximity,

without more, to support an inference of causation). Similarly, the fourth incident Didier

highlights—Rex’s reporting Didier for personal use of a corporate credit card but failing

to report his male subordinates despite their also frequently using their corporate credit

cards for personal expenses—relates to an incident that occurred in 2010. And temporal

proximity also dooms the final comment Didier points us to—Rex’s raising concerns

with Terri Garrett, Didier’s successor as District Manager, about the commitment of two

high-performing female representatives to their work due to their childcare

responsibilities—because this comment occurred after Didier’s termination.

14
 This leaves the comments Didier relates that are close in time to her termination—

(1) Rex’s instructing Didier to “focus on your faith and your family” when she expressed

worry for her job during Abbott’s investigation of her and repeatedly seeking assurances

from her throughout Abbott’s investigation that her husband had a good job and that her

family “would be okay” if she was fired; and (2) during a discussion about a female sales

representative, Rex’s mentioning to Troy Petrick that one way to get rid of an employee

was to turn them in for expense-reporting violations. The comments Rex made to Didier

during Abbott’s investigation of her fail as direct evidence because they could be

interpreted as either discriminatory or benign and thus cannot constitute direct evidence.

See Tabor, 703 F.3d at 1216. But Rex’s comment to Petrick—made while Didier was

under investigation—provides the closest call. While both the content and the temporal

proximity appear sufficient here for the comment to constitute direct evidence, Rex did

not make the comment in reference to Didier. Because of that, we conclude that the

comment provides no direct evidence of discrimination but instead significant

circumstantial evidence of Rex’s discriminatory motive. For all of these comments, then,

Didier must rely on McDonnell Douglas’s burden-shifting framework.

ii. Application of the McDonnell Douglas Framework

As noted above, we use the three steps detailed in McDonnell Douglas when

considering a sex-discrimination claim based on circumstantial evidence. This framework

requires that we ask three questions in this order: (1) has the plaintiff established a prima

facie case of discrimination?; (2) has the defendant offered a legitimate,

nondiscriminatory reason for the employment action?; and (3) assuming the defendant

15
has offered such a reason, can the plaintiff produce evidence that the stated reason is a

mere pretext for discriminatory intent? Daniels v. United Parcel Serv., Inc., 701 F.3d

620, 627 (10th Cir. 2012). We have held that the burden on both parties in the first two

steps is relatively mild. E.g., Orr v. City of Albuquerque, 417 F.3d 1144, 1152 (10th Cir.

2005) (noting that the prima facie case is “not onerous”). A plaintiff satisfies the prima

facie burden by merely demonstrating that she was part of a protected class, that she

suffered an adverse employment decision, and that her employer did not eliminate her

position after her termination. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,

1228–29 (10th Cir. 2000). Similarly, the defendant’s burden on the second step is one of

production, not persuasion, and we have characterized this burden as “exceedingly light.”

Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1149 (10th Cir. 2011) (quoting

E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1043 (10th Cir. 2011)).

Here, Abbott does not appear to dispute that Didier met her burden on the first

prong, but Didier contests that Abbott has met its burden on the second prong. Didier’s

argument on this score, however, appears to be merely that Abbott has not offered a

legitimate reason because its proffered reasons—that Didier falsified an expense report

form and submitted numerous improper expenses for reimbursement—should fail. Her

rationale behind this assertion is that all such expenses were approved by Rex and there

were only a few instances of her seeking reimbursement for family meals. This is an

argument more about the wisdom of Abbott’s decision than whether its stated reason is

legitimate; given the “extremely light” burden on Abbott at this stage, we find this

16
argument unavailing. Since we believe both parties have fulfilled their preliminary

burdens here, we shift our focus to the third inquiry required under McDonnell Douglas.

In McDonnell Douglas’s third step, evidence of pretext may take a variety of

forms. These include evidence that: (1) the defendant’s stated reason for the action is

false; (2) the defendant acted contrary to a written company policy prescribing the action

to be taken under the circumstances; (3) the defendant has shifted rationales for the

adverse employment action; or (4) the defendant has treated similarly situated employees

who committed acts of comparable seriousness differently. Kendrick, 220 F.3d at 1230;

see also Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1196–97 (10th Cir. 2011).

Didier argues that she has provided ample evidence of pretext. She highlights that

she was not treated the same as many similarly situated male employees who were not

dismissed for violations of company rules of comparable seriousness. Didier disputes the

district court’s determination that none of these employees were similarly situated and

that “no reasonable jury could draw an inference of discrimination based on Abbott’s

treatment of [these] individuals.” Didier also notes that she provided evidence of pretext

beyond the similarly situated male employees, such as Rex’s discriminatory comments.

Abbott contends that Didier’s evidence fails to establish pretext. It notes that,

when determining whether a reason is pretextual, we must look at the facts as they appear

to the person making the decision. Abbott believes all of the relevant decision-makers in

Didier’s cases were unbiased in reaching their conclusions that her conduct warranted

termination. In addition, it contends that Didier’s claim that Rex acted on a belief that

mothers with young children should not be in the workplace is “pure speculation and

17
unsupported by admissible evidence.” Further, Abbott agrees with the district court that

Didier failed to identify similarly situated employees who were treated more favorably

than she was treated.

Didier’s assertions of pretext on the part of Abbott, then, focus on two distinct

groups of evidence: (1) evidence of Abbott’s different treatment of similarly situated

male employees; and (2) Rex’s discriminatory comments. We address each in turn to

illustrate why neither demonstrates the pretext necessary to overcome summary judgment

in favor of Abbott.

Didier points to evidence of at least four other similarly situated male employees

whose discipline she claims Abbott handled differently than her own. The district court

found that these employees were either: (1) not similarly situated to Didier; or (2) did not

commit acts of comparable seriousness to Didier’s. We agree, and we therefore pause to

consider each of these employees in turn.

The first employee Didier points to is Rex, who was not terminated despite having

approved Didier’s questionable expense reports. The district court determined that Rex

could not be considered similarly situated to Didier because he was her supervisor. It

relied on language from our decision in Jones v. Denver Post Corp., 203 F.3d 748, 752–

53 (10th Cir. 2000), which stated that “Canino was one of Jones's supervisors and

therefore cannot be deemed similarly situated in a disciplinary matter . . . .” The district

court was correct: Jones forestalls Didier’s argument that Rex was similarly situated.

Didier next points to Ken Davis, a male employee who she contends was not

terminated even though he used his corporate card for personal expenses. Here, the

18
district court found that Davis’s conduct was not of comparable seriousness to Didier’s

because, while Davis used his corporate card for personal expenses, he paid American

Express for those expenses himself rather than attempting to have Abbott pay for them.

Didier disputes this finding, contending that her affidavit alone—without any additional

evidence—demonstrates that Davis had also sought reimbursement for improper

expenses. The district court found that the evidence Didier presented to suggest that

Davis had sought inappropriate reimbursement lacked foundation and was inadmissible,

and Didier presents no argument to suggest that this evidentiary determination was an

abuse of discretion. See Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131

F.3d 874, 894 (10th Cir. 1997) (noting that “[l]ike other evidentiary rulings, we review a

district court’s decision to exclude evidence at the summary judgment stage for an abuse

of discretion”). Without any admissible evidence that Davis too asked for reimbursement

for improper expenses, we agree with the district court’s determination that his conduct

was not of comparable seriousness to Didier’s.

The comparable seriousness prong also defeats Didier’s arguments regarding T.J.

Brinkerhoff. Brinkerhoff hired his brother-in-law, but Abbott did not terminate

Brinkerhoff even though this hiring violated Abbott’s policy prohibiting an employee

from hiring his or her relative. Abbott’s investigation concluded that Brinkerhoff did not

know about Abbott’s employment-of-relatives policy and further that Brinkerhoff

believed that hiring his brother-in-law would not violate any such policy because they

lacked a blood relation. While Didier points out that this violation was initially

categorized as being within the same seriousness level as her violation, Abbott and the

19
district court are correct that the comparable-seriousness prong looks to how the offenses

are characterized at the conclusion of an investigation—when the decision on appropriate

discipline is made—and not at the seriousness of the initial, unfounded accusation. Since

Abbott’s investigation found Brinkerhoff’s conduct to be accidental—while it found

Didier’s to be intentional—it cannot be said that the company considered his violation to

be of comparable seriousness to Didier’s when it disciplined him.

This brings us to the final employee Didier points to, Greg Toole. As the district

court noted, Toole was similar to Didier in many respects. Abbott determined that Toole

had underestimated the personal mileage on his car and therefore owed the company

nearly $300 in restitution. As with Didier, Global Security determined that this conduct

violated principles 5 and 9 of the Code. And, as with Didier, Abbott’s HR department

ultimately recommended Toole’s termination—a recommendation Rex supported. Unlike

Didier, however, Toole was not terminated because Comer and Susan Niver-Percy, the

Employee Relations Manager responsible for Toole’s case, found that Toole had been

following accepted practice at Solvay and may not have received adequate training on

Abbott’s policies. In Didier’s case, by contrast, no one other than Didier contended that

the practice she was following regarding family meals had been accepted at Solvay,

and—despite repeated opportunities to point to others who believed as she did—Didier

could provide no one else who shared her understanding. This distinction makes Toole

not similarly situated to Didier in all relevant aspects. See MacKenzie v. City & Cty. of

Denver, 414 F.3d 1266, 1277 (10th Cir. 2005) (employees not similarly situated if

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“differentiating or mitigating circumstances” distinguish their conduct or the employer’s

treatment of them for it).

Without being able to point to any similarly situated employees, Didier’s evidence

of pretext must rely on Rex’s discriminatory comments. But can Rex’s comments support

an inference of discrimination on Abbott’s part? Since he was not the final decision-

maker over Didier’s employment, the answer must be no. In Macon v. United Parcel

Service, Inc., 743 F.3d 708, 715 (10th Cir. 2014), we held that “if the supervisor’s ability

to make employment-related decisions is contingent on the independent affirmation of a

higher-level manager or review committee, we focus on the motive of [the] final decision

maker.” Here, Fendel independently recommended Didier’s termination and—while Rex

signed off on this recommendation—so too did six other individuals with various

positions in Abbott’s managerial hierarchy. While Abbott’s corporate structure causes

some confusion about who was the final decision-maker, we are confident that it was not

Rex. Didier has presented no evidence pointing to the discriminatory motives of any of

the other individuals involved in the decision to terminate her, and absent such evidence

her claim must fail at the third stage of the McDonnell Douglas analysis.

Didier counters that Abbott should still be liable under a “cat’s paw” theory of

liability. This assertion, too, is unavailing. To succeed under a “cat’s paw” theory of

liability, a plaintiff must show that “the decisionmaker followed the biased

recommendation [of a subordinate] without independently investigating the complaint

against the employee.” English v. Colo. Dep’t of Corrs., 248 F.3d 1002, 1011 (10th Cir.

2001) (alterations in original) (quoting Stimpson v. City of Tuscaloosa, 186 F.3d 1328,

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1332 (11th Cir. 1999)). We have required that “a plaintiff must establish more than mere

‘influence’ or ‘input’ in the decisionmaking process. Rather, the issue is whether the

biased subordinate’s discriminatory reports, recommendation, or other actions caused the

adverse employment action.” E.E.O.C. v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d

476, 487 (10th Cir. 2006).

Were Didier to suggest discrimination on the part of Fendel in conducting her

investigation, perhaps a “cat’s paw” theory would have more traction. But because her

assertions of discrimination focus solely on Rex, we need only look to Rex’s role in the

disciplinary process. Even if Rex’s decision to report Didier was motivated by

discrimination, we conclude that Fendel’s exhaustive inquiry into Didier’s expense-

records history would constitute the kind of independent investigation sufficient to shield

Abbott from liability. Further, even before Rex chose to report Didier, Ballard had

already initiated another inquiry into Didier’s expense reports. Quite simply, we cannot

say that Rex’s actions caused Didier’s termination.

For these reasons, we affirm the district court’s grant of summary judgment on

Didier’s sex discrimination claim.

C. FMLA Claims

Didier’s other two claims relate to her taking of FMLA leave. First, Didier claims

that Abbott illegally interfered with her FMLA leave by terminating her while she was

still occasionally taking intermittent FMLA leave to attend medical and therapy

appointments for her two young sons. Second, she claims that her termination was in

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retaliation for her taking of FMLA leave. Because these claims look to similar factors, we

consider them together here.

First, we consider the standards for an FMLA-interference claim. The FMLA

provides that an employer may not “interfere with, restrain, or deny the exercise of or the

attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1)

(2015). An employer’s violation of this provision, regardless of intent, gives rise to an

FMLA-interference claim. Brown v. ScriptPro, LLC, 700 F.3d 1222, 1226–27 (10th Cir.

2012). To establish an FMLA-interference claim, a plaintiff must demonstrate that she

was entitled to FMLA leave, that some action by her employer interfered with her right to

take FMLA leave, and that the employer’s actions were related to the plaintiff’s exercise

of FMLA rights. Id.

Regarding FMLA retaliation, Didier’s claim is subject to the now-familiar

McDonnell Douglas burden-shifting analysis. Metzler v. Fed. Home Loan Bank of

Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006). Again, this framework requires that we

ask, in order, whether: (1) the plaintiff has established a prima facie case of

discrimination; (2) the defendant can offer a legitimate, nondiscriminatory reason for the

employment action; and (3) assuming the defendant can offer such a reason, the plaintiff

can produce evidence that the stated reason is a mere pretext for discriminatory intent. Id.

Here again, it seems both parties have fulfilled their relatively mild burdens on the first

two prongs, and our focus is properly on the third.

Both of Didier’s FMLA claims, then, come down to whether she can produce

some evidence that Abbott’s termination decision was either: (1) related to her choice to

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exercise her FMLA rights, Brown, 700 F.3d at 1226; or (2); in fact caused by Abbott’s

desire to discriminate against Didier for the exercise of her FMLA rights despite Abbott’s

stated, nondiscriminatory reasons for her termination, Metzler, 464 F.3d at 1171. While

slightly different, at a bare minimum both of these standards require Didier to show,

based on the evidence in the record, that there is at least some question whether Abbott

fired her for taking FMLA leave. Unfortunately for Didier, she cannot do this. The

unrefuted evidence on the record is that, of those who had to approve Didier’s

termination, only Comer and Rex knew she was taking FMLA leave. Neither Fendel,

who independently investigated the claims against Didier, nor LaFleur, who made the

initial recommendation to terminate Didier based on Fendel’s investigation, nor any of

the five decision-makers other than Comey and Rex—who all had to approve Didier’s

termination—were even aware that Didier was taking FMLA leave.

Since Didier has presented no evidence that either the independent investigation

leading to her termination, or the termination decision itself, was motivated by the

exercise of her rights under the FMLA, both her FMLA interference and her FMLA

retaliation claims must fail. We therefore affirm the district court’s grant of summary

judgment on both of these claims.

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 CONCLUSION

For the reasons stated herein, we AFFIRM the district court’s grant of summary

judgment to all claims raised in this appeal.

ENTERED FOR THE COURT

Gregory A. Phillips
Circuit Judge

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14-3125 – Didier v. Abbott Laboratories

HARTZ, Circuit Judge, concurring:

I join the opinion of Judge Phillips, which correctly analyzes this case under

current law. But this is another good example of the unnecessary complexities arising

from our being tethered to the outdated McDonnell Douglas framework. Other than for

employment-discrimination cases, our review of a summary judgment would be simply to

determine whether there was sufficient admissible evidence to support each of the

elements of the plaintiff’s claim. We would not need to spend time on the artificial

distinction between direct and indirect evidence or to worry about going through the

progressive steps of a formalistic framework. That process adds nothing to the fairness,

reliability, or predictability of our decisions. The McDonnell Douglas framework may

have once served a purpose when employment-discrimination claims were decided in

bench trials before judges whose sensitivity to discrimination was in question. Making

judges go through those steps perhaps assisted deserving plaintiffs. Now, however, that

framework hardly helps plaintiffs. Rather, it imposes artificial barriers in the way of

meritorious suits. And even when the ultimate result is proper, the process unnecessarily

consumes the time and effort of attorneys and judges alike. Everything that is useful in

the framework—such as the enumeration of factors to consider in determining an

employer’s motive—could easily be incorporated into the process that we use to evaluate

summary judgments in other areas of the law.

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