United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2901
___________
Toni Bone, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
G4S Youth Services, LLC; * Eastern District of Arkansas.
Todd Speight, *
*
Appellees. *
___________
Submitted: June 13, 2012
Filed: July 30, 2012
___________
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
___________
GRUENDER, Circuit Judge.
Toni Bone appeals the district court’s1 grant of summary judgment in favor of
her employer, G4S Youth Services, LLC (“G4S”), and her supervisor, Todd Speight,
on Bone’s claims that they terminated her employment based on her race, age, and use
of family medical leave. For the reasons that follow, we affirm.
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
I. BACKGROUND
G4S began operating the Alexander Juvenile Assessment and Treatment Center
(“AJATC”), a youth detention center, in January 2007 under a contract with the
Arkansas Department of Human Services Division of Youth Services (“DYS”). G4S
hired Toni Bone in March 2007 as the education director at AJATC. Before she was
hired, Bone was interviewed by G4S’s chief executive officer, Kerry Knott, G4S’s
head of education, Jerry Neely, and G4S’s facility director for AJATC, Todd Speight.
Bone, like Knott and Neely, is Caucasian and was older than forty when she was
hired. Before coming to G4S, Bone was the special education supervisor at DYS.
In that position, she oversaw special education at six of the eleven juvenile detention
facilities in Arkansas, including AJATC. One of her responsibilities at DYS was to
oversee compliance with a Corrective Action Plan (“CAP”) created pursuant to a
settlement agreement between DYS and the United States Department of Justice.
Once at G4S, Bone worked under Neely to set up an education program at AJATC
that complied with the CAP, but she also reported directly to Speight.
It is undisputed that Bone was a valued employee for the first seven months of
her employment with G4S. She had a positive working relationship with both Neely
and Speight. In October 2007, Bone received a positive performance review from
Speight, obtaining a rating of 3.7 out of 4. AJATC achieved several educational
goals during this time, and Bone received praise from G4S and DYS for the progress.
During this time, no one from DYS came to AJATC to oversee or monitor the special
education program at AJATC. In November 2007, DYS hired Valecia Pumphrey as
its education director and Mary Steele as Bone’s successor as special education
supervisor. Like Bone before her, Steele was charged with overseeing compliance
with the CAP. Soon thereafter, Steele began to visit AJATC and monitor Bone’s
progress with the special education program. Bone previously had been Steele’s
supervisor when they both worked in the Little Rock School District. Pumphrey and
Steele quickly experienced problems communicating with Bone.
-2-
According to Pumphrey and Steele, Bone told them in regulatory meetings in
November 2007, December 2007, and January 2008 that all teachers at AJATC had
received “due process training” in August 2007 as required by the CAP. Steele
relayed this information to state officials at the Arkansas Department of Education
(“ADE”). These officials requested documentation to confirm the training, and Bone
promised to provide it to Steele. After Bone failed to provide the documentation,
Steele contacted the training provider and determined that only one teacher received
the training required by the CAP. Steele testified that she felt like Bone was telling
her what Bone thought Steele wanted to hear instead of the truth, causing Steele to
lose trust in Bone. Steele notified Speight and Neely that she had provided false
information to ADE officials in reliance on Bone’s representations. G4S placed Bone
on paid administrative leave while it investigated Steele’s accusation. In her
deposition, Bone testified that she never told Steele that all teachers had been trained
but merely told her that all teachers who were available that day had been trained.
Bone claimed that her statement was true because only one teacher was available that
day. G4S indicated that it would have suspended or terminated Bone if it had
determined that she lied to Steele regarding the CAP training, but it never made such
a determination.
Shortly thereafter, G4S created a new special education supervisor position
separate from that of education director. Speight asked Bone whether she wanted to
continue as education director or as special education supervisor. Bone chose the
special education supervisor position because that was her area of expertise. The
change became effective on February 3, 2008. Although Bone was no longer
responsible for the entire educational program at AJATC, her salary remained the
same. G4S hired Dr. William Thomas, a seventy-three-year-old African-American
man, to fill the education director position. Dr. Thomas had twenty-five years of
experience as a school superintendent and received a higher salary than Bone.
-3-
In March 2008, Bone underwent shoulder surgery while on paid leave for
spring break. She took additional paid leave the following week to recover.
According to Bone, Speight was wonderful to her regarding the surgery, he gave her
advice based on his experience with the same surgery, and G4S even sent her flowers.
Bone’s doctor cleared her to return to work on April 1, 2008 with the restriction that
she could not use her right arm. Bone emailed Speight to inform him that she could
not be hit or bumped in the shoulder. One day after she returned to work, G4S
required Bone to substitute temporarily for an absent teacher.
Steele at DYS continued to have problems with Bone after Bone’s
responsibilities were limited to special education. Steele testified that Bone
repeatedly refused Steele’s requests and resisted making any changes. On April 10,
2008, ADE officials informed Steele that the parental rights of the mother of an
AJATC student had been terminated. Steele instructed Bone to appoint a surrogate
parent for the student. Bone responded that she could not comply without a copy of
the court’s parental-rights termination order. Steele instructed Bone not to hold a
special education conference for the student until Steele could obtain a copy of the
termination order and appoint a surrogate parent. Three days later with no surrogate
parent appointed, Bone conducted a special education conference for the student
despite Steele’s instructions. Steele reported her concerns about Bone to G4S. On
May 7, 2008, Knott met with Bone and Speight. Knott gave Bone the option to resign
in lieu of her employment being terminated. Bone signed a letter of resignation that
day. G4S hired Misty Hunt, a forty-two-year-old Caucasian woman, to replace Bone.
Bone filed a complaint in September 2008 with the Equal Employment
Opportunity Commission (“EEOC”) and later received a right-to-sue letter. In
August 2009, Bone brought this lawsuit against G4S, Speight, Steele, Pumphrey, and
DYS. Bone alleged that she was terminated based on her race in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and in violation of the
Arkansas Civil Rights Act (“ACRA”), Ark. Code Ann. § 16-123-101 et seq. She also
-4-
alleged that the termination was based on her age in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., in retaliation
for engaging in protected speech in violation of 42 U.S.C. § 1983 and ACRA, and in
violation of her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601 et seq. After the close of discovery, the district court granted the defendants’
motions for summary judgment on all counts. The court concluded that Bone had not
established pretext in the race and age claims, that Bone had not engaged in protected
speech, and that Bone did not establish that G4S interfered with or retaliated against
Bone’s exercise of her FMLA rights. Bone appeals solely the grant of summary
judgment in favor of G4S and Speight, and solely on her race, age, and FMLA claims.
II. DISCUSSION
Bone contends that the district court erred in granting summary judgment
because she provided direct evidence of race and age discrimination and,
alternatively, demonstrated that G4S’s legitimate, non-discriminatory reason for
terminating her employment was merely a pretext for intentional discrimination on
the basis of race and age. She also contends that the district court erroneously
granted summary judgment on her FMLA claims. We review the district court’s grant
of summary judgment de novo. Taylor v. St. Louis Cnty. Bd. of Election Comm’rs,
625 F.3d 1025, 1026 (8th Cir. 2010) (per curiam). “Summary judgment is appropriate
where, viewing the record in the light most favorable to the nonmoving party, there
are no genuine issues of material fact and the moving party is entitled to judgment as
a matter of law.” Id. “There is no ‘discrimination case exception’ to the application
of summary judgment . . . .” Torgerson v. City of Rochester, 643 F.3d 1031, 1043
(8th Cir. 2011) (en banc).
Bone can survive summary judgment on her race and age discrimination claims
either by providing direct evidence of discrimination or by creating an inference of
-5-
unlawful discrimination through the McDonnell Douglas2 analysis. See Gibson v.
Am. Greetings Corp., 670 F.3d 844, 855 (8th Cir. 2012) (“Similar to claims of race
discrimination, when a plaintiff ‘has no direct evidence of [age] discrimination, his
claims are analyzed under the familiar burden-shifting scheme of McDonnell Douglas
Corp. . . . .’” (quoting Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011))).
“We also note that we analyze [Bone’s] Title VII and Arkansas Civil Rights Act
claims under the same standards.” Id. at 853.
A. Direct Evidence of Age and Race Discrimination
We have previously said that “[d]irect evidence in this context is not the
converse of circumstantial evidence . . . [but] is evidence ‘showing a specific link
between the alleged discriminatory animus and the challenged decision, sufficient to
support a finding by a reasonable fact finder that an illegitimate criterion actually
motivated’ the adverse employment action.” Torgerson, 643 F.3d at 1044 (quoting
Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). Such evidence
must be “strong” and must “clearly point[] to the presence of an illegal motive” for
the adverse action. Griffith, 387 F.3d at 736.
Bone contends that she presented direct evidence of age and race
discrimination in the form of a remark that she says Pumphrey, a DYS employee,
made in the presence of Knott and Speight, her superiors at G4S, six months prior to
the termination of her employment. Although Bone was no longer an employee of
the State of Arkansas, she attended a weekend job fair as a “volunteer effort” on
ADE’s behalf without the approval of DYS or G4S. Knott and Speight convened a
meeting to instruct Bone not to attend recruiting events without approval. Pumphrey
was present at the meeting and, according to Bone, said “that she did not want an old
white lady in a suit doing recruiting.” According to Bone, Speight made “a cocky
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
-6-
smile to the corner” of his mouth when Pumphrey made the comment and neither
Knott nor Speight answered when Bone asked in relation to the comment, “Is that
appropriate?” Bone testified in deposition that she then asked whether they wanted
someone like “Ms. Smith,” whom Bone identifies as an African-American who is not
a teacher, and that Pumphrey responded affirmatively. Bone contends that
Pumphrey’s comments were made in the context of employment decisions and that
Speight’s and Knott’s tolerance of them is thus direct evidence of their discriminatory
intent in terminating her employment.
Contrary to Bone’s arguments, Speight’s reaction and Knott’s lack of reaction
to Pumphrey’s comments are not direct evidence of a discriminatory motive for firing
Bone. Knott and Speight merely failed to respond when a representative of their
facility’s sole client made inappropriate “stray remarks in the workplace” that were
“unrelated to the decisional process” of terminating Bone’s employment. See
Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993) (quoting
Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991)). Furthermore, Pumphrey’s
comments were made six months before G4S decided to discharge Bone. The gap in
time and lack of connection between Pumphrey’s comments regarding recruiting and
G4S’s decision to discharge Bone negate Bone’s arguments that Speight’s and
Knott’s reactions constitute direct evidence of G4S’s discriminatory motive for her
discharge. See Ramlet v. E.F. Johnson, 507 F.3d 1149, 1153 (8th Cir. 2007) (holding
that comments made more than four months prior to the adverse employment action
were not connected to the decision-making process and, therefore, were not direct
evidence of discrimination). Thus, to succeed on her race and age discrimination
claims, Bone must create an inference of unlawful discrimination through the
McDonnell Douglas framework. Torgerson, 643 F.3d at 1044.
-7-
B. Pretext for Age and Race Discrimination
Assuming, without deciding, that Bone presented a prima facie case of race and
age discrimination, see Elam v. Regions Fin. Corp., 601 F.3d 873, 879 (8th Cir.
2010), G4S had the burden to articulate a “non-discriminatory, legitimate justification
for its conduct, which rebuts the employee’s prima facie case.” Rodgers v. U.S. Bank,
N.A., 417 F.3d 845, 850 (8th Cir. 2005) (quoting Sprenger v. Fed. Home Loan Bank
of Des Moines, 253 F.3d 1106, 1111 (8th Cir. 2001)). This burden is not onerous, id.
at 853, and G4S satisfied it by stating that it discharged Bone for failing to follow
Steele’s directive not to hold the special education conference without appointing a
surrogate parent, miscommunicating with Steele and Pumphrey regarding the teacher
training, losing the trust of DYS employees as a result, and refusing in general to
make changes to accommodate the requests of DYS employees.
Bone contends that G4S failed to articulate a legitimate reason for terminating
her employment because there are unresolved fact questions as to whether Bone
actually lied to Steele and Pumphrey regarding the teacher training or whether a
surrogate parent could be appointed before a copy of the parental rights termination
had been obtained. However, we do not “sit as super-personnel departments
reviewing the wisdom or fairness of the business judgments made by employers,
except to the extent that those judgments involve intentional discrimination.” Id. at
854 (quoting Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995)).
So long as G4S had a “good faith” basis for discharging Bone, it does not matter
whether Bone actually lied to Steele regarding the teacher training or whether a
surrogate parent truly could be appointed before a copy of the parental rights
termination was obtained. See Johnson v. Ready Mixed Concrete Co., 424 F.3d 806,
811 (8th Cir. 2005); Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir. 2004). There
is no genuine issue of fact as to whether DYS employees made false reports to ADE
officials based on Bone’s description of the teacher training, that Bone disobeyed
Steele’s directive regarding the special education conferences, and that Steele
-8-
experienced a general dissatisfaction with and loss of trust in Bone. These repeated
complaints regarding Bone’s response to legitimate customer concerns constitute a
“good faith” basis for G4S’s decision to terminate Bone’s employment.
Because G4S articulated a legitimate, non-discriminatory justification for
discharging Bone, “the presumption of discrimination disappears, requiring the
plaintiff to prove that the proffered justification is merely a pretext for
discrimination.” Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). The
plaintiff has the burden of persuasion at all times. Id. Bone’s burden to show a
genuine issue of material fact regarding pretext “merges with the ultimate burden of
persuading the court that [she was] the victim of intentional discrimination.”
Torgerson, 643 F.3d at 1046 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515-16
(1993) (“[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is
shown both that the reason was false, and that discrimination was the real reason.”);
Rothmeier v. Inv. Advisors, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996) (noting that
a plaintiff in an ADEA suit must both (1) create a fact issue as to whether the
employer’s reasons for the discharge are pretextual and (2) create a reasonable
inference that the plaintiff’s age was a determinative factor in the discharge). “Proof
of pretext, coupled with a strong prima facie case, may suffice to create a triable
question of fact” as to whether the termination was motivated by intentional
discrimination. Torgerson, 643 F.3d at 1046. Bone contends that she established
pretext and created a reasonable inference that her discharge was motivated by
intentional discrimination because she identified nineteen young, African-American
employees whom G4S allegedly treated more favorably than her in disciplinary
matters, G4S’s explanation for her termination shifted over time, and she identified
other incidents of racial discrimination. We address each argument in turn.
-9-
1. Comparators
Bone provided evidence that G4S subjected nineteen youth care workers to
“progressive discipline” and contends that, although similarly situated to the youth
care workers, she was not treated similarly to them because of her age and race. G4S
cited the youth care workers for disciplinary problems ranging from minor violations,
such as dress code and attendance problems, to critical violations, such as sleeping
or leaving a duty station during a shift or fighting with a resident. Under G4S’s
“progressive discipline” system, perpetrators of minor violations do not merit
termination unless they repeatedly misbehave despite prior warnings. In contrast,
critical violations could, but need not, result in a suspension or even termination for
the first offense. Bone points out that several African-American youth care workers
received one or more suspensions for critical violations before being discharged.
Bone contends that she demonstrated that G4S’s reasons for terminating her
employment were merely a pretext for intentional discrimination because she never
received progressive discipline before she was discharged.
At the pretext stage, “the test for determining whether employees are similarly
situated to a plaintiff is a rigorous one.” Rodgers, 417 F.3d at 853. Bone must show
that she and the employees outside of her protected group were “similarly situated in
all relevant respects.” Id. “[T]he individuals used for comparison must have dealt
with the same supervisor, have been subject to the same standards, and engaged in the
same conduct without any mitigating or distinguishing circumstances.” Clark v.
Runyon, 218 F.3d 915, 918 (8th Cir. 2000). Furthermore, “[t]o be probative evidence
of pretext, the misconduct of more leniently disciplined employees must be of
comparable seriousness.” Rodgers, 417 F.3d at 853 (quoting Harvey v. Anheuser-
Busch, Inc., 38 F.3d 968, 972-93 (8th Cir. 1994)) (internal quotation marks omitted).
The nineteen youth care workers are not valid comparators because they had
different immediate supervisors from Bone and did not engage in the same conduct
-10-
as Bone. Although Speight as facility director ultimately approved their terminations,
he was not the direct supervisor for the youth care workers. Various supervisors
handled their progressive discipline and ultimately recommended their dismissals;
Speight merely approved the recommendations. In contrast, Speight was Bone’s
direct supervisor and conducted her performance review. Moreover, Knott, not
Speight, made the actual decision to discharge Bone. Unlike the youth care workers,
who were relatively junior employees, Bone was an administrator who worked
directly with Speight and Knott, and the decision to terminate her employment was
not merely ratified by upper management, but was made by Knott, the chief executive
officer, in the first instance. Furthermore, Bone did not engage in the same conduct
as the comparators “without any mitigating” differences. Clark, 218 F.3d at 918.
Unlike any of the youth care workers, only Bone was accused of resisting the
directives of employees at DYS, AJATC’s sole client. Bone’s resistance to DYS
directives and outright refusal to comply with Steele’s request regarding the special
education conference is different in kind from the youth care workers’ various
disciplinary violations. In short, Bone has failed to establish that the youth care
workers are similar to her in “all relevant respects.” See Rodgers, 417 F.3d at 853.3
Bone also contends that Speight and another employee, Dr. Darrin Kirkendall,
were not disciplined at all for a disciplinary violation that was even more serious than
her violation, releasing without proper notice a youth who allegedly committed a
3
Additionally, we note with respect to Bone’s ADEA claim that the same
decision maker that hired her when she was older than forty decided to fire her
approximately fourteen months later. See Kadas v. MCI Systemhouse Corp., 255 F.3d
359, 361-62 (7th Cir. 2001) (“[I]t is eminently reasonable to doubt that, as in this
case, a worker hired at an age well beyond that at which the protections of the age
discrimination law click in and terminated within months, that is, before he is
appreciably older, was a victim of age discrimination.”); see also Paup v. Gear
Prods., Inc., 327 F. App’x. 100, 110 (10th Cir. 2009) (per curiam) (unpublished)
(“[I]t would be eminently unreasonable to think that the manager became ‘ageist’
overnight.”).
-11-
murder shortly after being released from AJATC. However, Bone has introduced no
evidence that G4S believed Speight and Dr. Kirkendall committed the alleged
disciplinary violation. See Johnson, 424 F.3d at 811 (“Johnson identifies no evidence
that Ready Mixed believed that [the comparators] violated any duty to the company
. . . or that management considered their conduct to be dishonest.”). Moreover, even
if Speight’s and Dr. Kirkendall’s alleged violation involved the same conduct and
was of comparable seriousness to Bone’s violations, G4S’s alleged leniency in favor
of Speight and Dr. Kirkendall does not support an inference of race or age bias or
demonstrate that G4S’s reason for discharging Bone was a pretext for such bias. Dr.
Kirkendall is a Caucasian man who is older than forty and is thus a member of both
of Bone’s protected classes for her race and age discrimination claims, while Speight,
though not Caucasian, is also older than forty. The fact that Dr. Kirkendall, a member
of both of Bone’s protected classes, was treated more leniently than Bone casts doubt
on Bone’s suggestion that the alleged lenience for either comparator is evidence of
pretext or prohibited bias. See Hitt, 356 F.3d at 925 (noting that “one of the two
employees who received this alleged leniency was aged 51, and thus a member of the
protected class under the ADEA”). We reject Bone’s argument that Speight and Dr.
Kirkendall are adequate comparators.
Finally, Bone contends that her successors as education director and as special
education supervisor are less qualified than she and that this difference in
qualifications demonstrates pretext. However, Hunt is a Caucasian woman over the
age of forty, and thus a member of both of Bone’s protected classes. Dr. Thomas is
also over age forty, and thus a member of one of Bone’s protected classes. Once
again, any favorable treatment Hunt received cannot reasonably be ascribed to racial
or age-related animus. See id. at 925. Moreover, Dr. Thomas arrived at G4S with
twenty-five years of experience superintending schools and school districts, and Bone
identifies no evidence that she had comparable experience. We thus reject Bone’s
argument that G4S’s decision to employ Hunt and Dr. Thomas in the positions she
previously filled supports her claim of pretext.
-12-
2. Shifting Explanations
Bone contends that G4S gave conflicting accounts of why she was discharged
and that this shift in explanations is evidence that G4S’s reasons for terminating her
employment are merely a pretext for intentional discrimination on the basis of age
and race. Specifically, she contends that G4S told DYS employees that Bone’s
employment had been terminated but told EEOC officials that Bone had quit. She
also points out that Speight testified that he had no plan to fire Bone before their
meeting on May 7 and that Knott stated at one point that he did not know why she
quit. She contends that Knott changed his story when he said that he fired her
because of problems with “performance and client relations.” G4S’s description of
Bone’s separation does not, however, establish pretext.
A change in an employer’s legitimate, nondiscriminatory reason for firing an
employee is probative of pretext only if the discrepancy is “substantial.” See Twiggs
v. Selig, 679 F.3d 990, 994 (8th Cir. 2012). The district court correctly concluded
that Bone’s allegations of shifting explanations amounted to “nothing more than a
semantic dispute” as to whether G4S’s ultimatum to resign or be fired was a
resignation or a termination. Although Bone correctly points out that Speight
testified that he had no plan to fire Bone prior to the meeting, Knott was the one who
made the decision to request Bone’s resignation. Knott further testified that during
the meeting he decided to “go another direction” so he gave her “the opportunity to
resign.” Bone did in fact resign after G4S told her to resign or be fired. Knott’s
testimony that he did not know why Bone chose to resign is not inconsistent with his
testimony explaining why he forced her to choose between resigning or being fired.
Nor is it inconsistent for Knott to testify that Bone was fired for “performance and
client relations” problems and then elaborate that she was resistant to the requests of
DYS employees, lost their trust, and failed to follow their directives. We reject
Bone’s contention that she identified a substantial shift in G4S’s nondiscriminatory
reasons for terminating her employment and thereby demonstrated that G4S’s
-13-
proffered reason for the discharge was merely a pretext for race or age discrimination.
See id. (holding that a shift in explanation was not substantial because “all
explanations of the firing . . . revolved around the release of” the youth).
3. Other Instances of Discrimination
Finally, Bone argues that she provided evidence of other instances of
discrimination that demonstrates that G4S’s proffered reason for terminating her
employment was merely a pretext for race and age discrimination. First, she contends
that Norma Wynn, an African-American dorm supervisor, ordered Bone to clean a
restroom. However, the record indicates that cleaning restrooms is part of the
responsibility of educational staff. There is no evidence that Wynn’s order was
motivated by racial animus. Second, Bone contends that Dr. Thomas received a
higher salary than she as education director. However, G4S explained that Dr.
Thomas received a higher salary because of Dr. Thomas’s more extensive experience
as a school superintendent. Neither Dr. Thomas’s salary nor Bone’s sanitation
assignment support Bone’s contention that G4S’s rationale for terminating Bone’s
employment was merely a pretext for race or age discrimination.
Because Bone did not create a genuine issue of material fact as to whether
G4S’s legitimate, non-discriminatory reason for terminating her employment was
merely a pretext for intentional race or age discrimination, the district court did not
err in granting summary judgment in favor of G4S and Todd Speight on Bone’s race
and age discrimination claims.
C. FMLA
As relevant here, FMLA provides an eligible employee with twelve work-
weeks of unpaid leave during any twelve-month period if she has “a serious health
condition that makes [her] unable to perform the functions of [her] position.” 29
-14-
U.S.C. § 2612(a)(1)(D). FMLA authorizes two types of claims: interference claims
and retaliation claims. See Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th
Cir. 2011). In an interference claim, “the employee alleges that the employer denied
or interfered with her substantive rights under the FMLA.” Id. In a retaliation claim,
“the employee alleges that the employer discriminated against her for exercising her
FMLA rights.” Id. However, “[a]n employee who requests FMLA leave has no
greater protection against termination for reasons unrelated to the FMLA than she did
before taking the leave.” Estrada v. Cypress Semiconductor (Minn.) Inc., 616 F.3d
866, 871 (8th Cir. 2010). “If the employer can prove that it would have terminated
the employee had the employee not exercised FMLA rights, the employer will not be
liable.” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012). Bone contends
that G4S interfered with her FMLA rights by failing to reinstate her to an equivalent
position after her leave and by failing to provide her with notice of her FMLA rights.
Bone also asserts that G4S terminated her employment in retaliation for her FMLA
leave.
Bone’s interference claim fails because Bone was allowed to take leave for her
surgery and to return to the same position she had before she left. As a threshold
matter, the record reveals that G4S posted a notice of employee FMLA rights in the
workplace and provided a notice in the employee handbook, which Bone indisputably
received on March 3, 2007. Furthermore, Bone actually took leave for her surgery
and recovery. Moreover, Bone concedes that she began her new position as special
education supervisor in February 2008, a month before her surgery. This was the
same position to which she returned after her leave. Bone contends that the post-
leave position was not equivalent to her pre-leave position because G4S forced her
to substitute temporarily for an absent teacher, arguing that teaching classes is not
part of her duties as an administrator. She also argues that forcing her to substitute
as a teacher interfered with her FMLA rights because such work was inconsistent
with the medical restrictions on her return to work. However, Bone provides no
evidence that substituting for an absent teacher is not a part of the duty of a school
-15-
administrator. Furthermore, Bone did not submit any evidence that her medical
condition prevented her from teaching or that she communicated such a restriction to
G4S. Upon returning to work, Bone informed G4S that her shoulder should not be
hit or bumped and provided G4S with a doctor’s note indicating that she could not
use her arm, but the note did not state that Bone could not teach classes or that her
availability for work was otherwise restricted. Although G4S was aware that some
AJATC students are “dangerous,” there is no indication in the record that Bone ever
communicated to G4S that temporarily teaching this particular class would be
expected to lead to physical impacts or otherwise violate the medical condition of her
return to work. Thus, Bone has failed to raise a genuine issue of fact as to whether
G4S failed to provide her with notice of her FMLA rights, prevented her from taking
leave, failed to reinstate her to an equivalent position upon her return from leave, or
otherwise interfered with her FMLA rights.
Bone has also failed to raise a genuine issue of fact as to whether G4S
retaliated against her for exercising her FMLA rights. Bone contends that the
proximity in time between when she took leave and when G4S terminated her
employment is sufficient to establish that the termination was retaliatory. However,
even Bone testified that G4S was “wonderful” to her regarding her surgery.
Moreover, as we concluded above, G4S provided a legitimate, non-discriminatory
reason for Bone’s termination that was unrelated to her leave. The fact that Bone
recently had taken FMLA leave does not insulate her from “termination for reasons
unrelated to the FMLA.” Estrada, 616 F.3d at 871. Thus, the district court did not
err in granting summary judgment on Bone’s FMLA claims.
III. CONCLUSION
For the foregoing reasons, we affirm.
______________________________
-16-