Defreitas v. Horizon Investment Management Corp.

FILED
United States Court of Appeals
Tenth Circuit

August 14, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NYDIA DEFREITAS,

Plaintiff - Appellant,
v. No. 08-4034
HORIZON INVESTMENT
MANAGEMENT CORP.; JAMES
TERRY,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:06-CV-00926-DB)

Bruce M. Franson (Robert H. Wilde with him on the briefs), of Robert H. Wilde,
Attorney at Law, P.C., Midvale, Utah, for Plaintiff - Appellant.

Lisa Marcy McGarry (Lincoln W. Hobbs with her on the brief), of Hobbs &
Olson, L.C., Salt Lake City, Utah, for Defendants - Appellees.

Before HARTZ, HOLLOWAY, and McKAY, Circuit Judges.

HARTZ, Circuit Judge.

James Terry, the president of Horizon Investment and Management

Corporation, fired Nydia DeFreitas while she was on a leave of absence to
recover from a hysterectomy. She sued Horizon and Mr. Terry in the United

States District Court for the District of Utah, claiming (1) that the firing

interfered with her rights under the Family and Medical Leave Act of 1993

(FMLA), 5 U.S.C. §§ 6381–6387, 29 U.S.C. §§ 2601–2654; (2) that Mr. Terry, a

member of The Church of Jesus Christ of Latter-day Saints (LDS), 1 fired her

because she is a Catholic, in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e through 2000e-17; and (3) that she was subjected to a

work environment that was hostile to those who were not LDS, also in violation

of Title VII. The district court granted Defendants summary judgment on all

three claims, and Ms. DeFreitas appeals with respect to her FMLA and religious-

discrimination claims. We have jurisdiction under 28 U.S.C. § 1291. We reverse

on Ms. DeFreitas’s FMLA claim, but affirm on her religious-discrimination claim.

I. BACKGROUND

Because we are reviewing a summary judgment, we will evaluate the

evidence in the light most favorable to Ms. DeFreitas, but we summarize evidence

unfavorable to her claims as well as the favorable evidence. See Zokari v. Gates,

561 F.3d 1076, 1079 (10th Cir. 2009).

1
The parties use the terms LDS and Morman interchangeably. For
consistency, we will use LDS throughout this opinion, except in quotations.

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 A. The Events Leading Up To Ms. DeFreitas’s Termination

Horizon, a company with about 190 employees, manages residential

properties in Nevada and Utah. Its responsibilities range from readying and

renting out apartments to hiring and training the employees who staff these

properties. Some properties qualify for low-income-housing tax credits if

sufficient residents are eligible; eligibility claims must be documented and are

subject to government audit.

Mr. Terry was responsible for overseeing hiring, firing, and employee-

compensation decisions, although individual vice presidents could also hire and

fire. In June 2004, Ms. DeFreitas was hired to work at Horizon by Tammy

Godfrey, a vice-president. She began as a manager of the Ridgeview Apartments

in North Ogden, Utah.

Her talents were recognized early on. As Mr. Terry observed in his

deposition, she was “an outstanding leasing agent and ha[d] always been an

excellent leasing agent” with “very good skills related to people.” Aplt. App.,

Vol. A at 309. She was soon transferred to Layton Pointe, a more challenging

property that had undergone over one million dollars’ worth of rehabilitation.

There she did “very well,” according to Mr. Terry. Id. “You are a dynamite

employee,” he wrote her in a November 2004 email. “[W]e are so glad to have

you as part of our team and even more pleased to have you at Layton [Pointe].

Thanks for all you do and all the extra thought, time and energy.” Id., Vol. B at

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747. About that time—less than half a year after she had begun with

Horizon—Mr. Terry gave her a raise.

Ms. DeFreitas took time off for maternity leave to have a baby in May

2005. She returned to Horizon as a so-called “floating manager” entrusted with

assisting in the management of several properties. Again, Mr. Terry testified that

she “[d]id very well.” Id. at 309.

In the summer of 2005, another company offered Ms. DeFreitas a $36,000

salary—$8,000 more than Horizon was paying her—to be a manager. She

tendered her resignation to Horizon, but Mr. Terry responded by offering her a

raise to $38,000 and a promotion to regional vice president. She opted to stay at

Horizon, receiving her raise on September 1, 2005.

By this time, Ms. DeFreitas’s management duties included three

properties—Park Place Apartments, Edison Place Apartments, and Westgate, all

located in or near downtown Salt Lake City. She regarded these properties as the

company’s most difficult. Mr. Terry described Park Place as particularly

challenging, “a beast with lots of tentacles.” Id., Vol. B at 731. Park Place’s

owner, Jonathon Morse (also the owner of Edison Place), was very demanding,

and Ms. DeFreitas was Horizon’s third manager there. The occupancy rate was

below Morse’s expectations, and not enough units were rented to low-income

residents for it to qualify for tax credits. Ms. DeFreitas worked over 50 hours a

week, including nights and weekends.

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 Despite these challenges, her success persisted. On November 21, 2005,

Mr. Terry emailed her that even though Edison Place showed a loss in October, “I

have got to tell you it is the best number that we have ever had on that

property. . . . You are doing super . . . Dynamite job . . . .” Id. at 732. “You are

doing an excellent job!” one executive-committee member emailed her on

November 23, 2005. Id. at 730. Morse’s son, a member of the homeowners’

association board at Park Place, emailed on December 1, 2005: “Nydia, it[’]s

10pm at night and you[’re] still working it, good job! Thanks for all you do!” Id.

at 745.

Also in November, Ms. DeFreitas informed Mr. Terry that she needed a

hysterectomy and would have to take six weeks of leave. They did not discuss

whether the leave would be paid or unpaid. Later he suggested that she seek

donations of paid sick-leave time from other Horizon managers; but he then

retracted that suggestion, informing her that other employees were upset by it. As

a result, she was told that she would have to take unpaid leave after exhausting

her paid sick-leave time. Mr. Terry never informed Ms. DeFreitas of her FMLA

leave rights, nor did he ask her to provide any medical certification of her

condition. Indeed, although Horizon’s Manual of Operations contained a section

on sick leave, it did not contain a section on FMLA leave because, according to

Mr. Terry, “I didn’t know what it was until the situation came up with

[Ms. DeFreitas].” Id., Vol. A at 144.

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 Ms. DeFreitas’s surgery was on February 15, 2006. Her doctor instructed

her to take six weeks of bed rest and not return to work. She conversed daily

with Mr. Terry, updating him on her condition and informing him that she

nonetheless intended to return early, possibly as soon as March 13. During one

such conversation, Mr. Terry expressed concern about the six-week time frame,

mentioning that his sister had been able to return to work a few days after her

hysterectomy. While she was on leave Mr. Terry occasionally sent her work to do

regarding Park Place.

Some of what Ms. DeFreitas learned about Park Place during her leave was

troubling. Nine days after her surgery Mr. Terry told her that everything at Park

Place had become “‘crazy,’” and that one of her staff members had been

terminated. Id. at 246. (During her leave, four staffers (all members of the same

family) were fired, and a fifth quit before she could be fired.) Four days later, on

February 28, Morse informed her that he and Mr. Terry had decided that Park

Place “was too difficult for [her] to handle,” id., and removed her from Park

Place; but he added that she would continue to manage other Horizon properties.

About that time she received a call from two maintenance employees who were

among those that were later fired; they told her that Park Place had been audited

and was not doing well, and that they had heard rumors in the administrative

office that she would be fired. She asked Mr. Terry what the problems were, but

he said that he did not want to bother her with that while she was recuperating. In

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early March she asked Mr. Terry whether she would be fired from Horizon

altogether. He said no, but went on to ask her questions such as “why do you

work?”; “do you really need the money?”; and “if you stayed at home, would that

be okay?” Id. at 112 (internal quotation marks omitted). On March 9 she called

Mr. Terry to report on her latest checkup with her doctor, and told him that she

would not be able to return to work before April 4. He responded by saying, “Oh,

you don’t worry about it. You just get yourself better. You know, take care of

you and the family and, you know, . . . I’ll talk to you later.” Id. at 71–72

(internal quotation marks omitted).

She was fired the next day. Mr. Terry sent her an email informing her of

the decision. It read:

From: James Terry
Sent: Friday, March 10, 2006 11:44 AM
To: Nydia de Freitas
Subject: Ecclesiastes 3

Nydia,

I have agonized over this decision for weeks. It has been difficult
because the Nydia I know or thought I knew is not the same Nydia
that so many others feel they know on site. What I truly hope is that
the Nydia I know, will remain my friend, a strong wife and mother to
her family and someone that will continue to grow and reach the
personal and family goals that you set for yourself.

We have uncovered so many different issues at both Edison and Park
Place, that are expensive mistakes to the owner and our management
company, that we need to not just make a change from working at
Park Place, but from working at Horizon. You are very talented and
I know, when back in the pink of health, will bounce back and secure

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 another job without even a glitch. I know this is a personal setback
and a financial strain for a few weeks and am sorry, but . . . you still
have a pay check coming next Friday that I will move up to your
desired date of receipt if you desire.

I do not think that I need to list reasons, my desire is not to add salt
to this wound, but would like the opportunity to visit with you one on
one in the future and allow me to make some suggestions that could
make your next job more comfortable, more enjoyable and allow you
to continue to grow in this field. It is so important to have your
staff, your fellow regional’s [sic] and managers and your employers
back you to the hilt and I hope the ideas that I might share would
offer help in that direction.

....

Id., Vol. B at 585.

Ms. DeFreitas had not read the email when Mr. Terry called her three days

later, on March 13, to wish her a happy birthday. He said: “I’m sorry how things

have turned out. I hope everything is going to be okay with us. I hope, you

know, that we’re going to be okay.” Id., Vol. A at 70 (internal quotation marks

omitted). Sensing something was wrong, she checked her email after the

conversation. Later she called Mr. Terry to ask why she had been fired. His

response was: “You know, when you get better, you come in, we’ll sit down and

we’ll talk about it. You know, you’re recovering. When you get better, you can

come in and we’ll talk about it.” Id. at 72. They later met in person. But he said

no more about the reasons for her termination.

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 Ms. DeFreitas then sought work at another company, which contacted

Mr. Terry. The prospective employer recorded Mr. Terry’s responses to certain

questions on April 3 as follows:

What were the applicant’s job title and duties? Regional – best
leaser

....

Reason for leaving? illness

Attendance/punctuality? loyal – hard worker

Strong points? Best leaser he has known

Areas for improvement? take better care of herself

How does this person get along with other people? (coworkers,
superiors, etc.) great

Would you rehire? [x] Yes [ ] No

....

Id. at 176.

Ms. DeFreitas’s termination apparently did not comply with Horizon’s

Manual of Operations, which permits firing without warning (and thus without an

opportunity to improve performance) only for egregious behavior. The Manual

states:

Termination of an employee is a drastic measure requiring careful
consideration. Termination should be a last step, not a first step,
when finding an employee who is doing something wrong. Under
minor situations caused by laziness, or not being on time, or doing a
job inappropriately, there should be a written warning or a

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 probationary period applied before something as drastic as
termination.

The exception to that would be an employee caught drinking, taking
drugs, theft, resident mistreatment, sexual advances to any resident
or other employee, manipulating records, etc. Under those
circumstances, termination is immediate.

Id. at 217. Regarding probation the Manual states:

Unless an employee is immediately terminated for criminal acts,
gross negligence, or other activities as described previously, then we
should give the employee an opportunity to understand our grievance
and to correct the problem.

Please have an interview with the employee on a one-to-one basis
and simply and carefully describe and document your professional
feelings regarding the employee’s performance for whatever reason.
Make your complaints brief, simple, and understandable. Ask the
employee to repeat what you have said (or their interpretation of it)
so that they are understanding what you say. Give the employee a
seven to fifteen day probationary period.

Id. at 218. The Manual section entitled “Policies on Discharging After Probation”

emphasizes the need for documenting poor performance and for warnings to the

employee:

Whenever an employee is put on probation and the possibility of
termination is evident, the supervisor is responsible to report the
probation on the Employee Verbal Warning Form provided to their
supervisor. This form should include the reasons for the probation,
the date and the outline of their discussion during the personal
interview, and any other information which the supervisor feels is
necessary. A copy of this form goes into the employee’s on-site file
(again, confidential) and the original copy goes into the permanent
payroll employee file at Pavilion.

This documentation is critical and essential in order to properly
document a fair and just treatment of the employee. These written

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 reports regarding employee problems, sub-performance, and
probation interviews, cannot be overlooked.

....

ALL PROBATIONARY ACTIONS AND JOB PERFORMANCE
EVALUATIONS BY A SUPERVISOR MUST BE WRITTEN UP
AND PROPERLY FILED.

Id. at 218–19. Defendants have not provided any documentation showing that

Ms. DeFreitas had been warned or disciplined, and Mr. Terry testified at his

deposition that he did not recall having given her any written warning and that he

had not placed her formally on probation. The dismissal of Ms. DeFreitas without

a prior exit interview also violated the Manual, which provides:

Prior to any termination of any employee, an exit interview must be
held. In the exit interview, you sit down with the employee and
review the reasons for discharge and “put them in writing” including
any policies that have been broken and all reasons for termination of
the employee.

Id. at 217.

We also note the evidence that Ms. DeFreitas points to as supporting her

claim that her termination was motivated by religious discrimination. She is a

Catholic and most employees of Horizon are LDS, including Mr. Terry and most,

if not all, of the company’s executive committee. She testified that the religious

atmosphere at Horizon became apparent to her shortly after she was hired, when

she attended a company-wide training session. Several employees, perhaps

including one or more who were conducting the training, asked her questions such

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as “Do you go to church? What church do you attend?” Id. at 89 (internal

quotation marks omitted). These employees also mentioned that they were LDS,

and that Mr. Terry was a former bishop in the church. She disclosed that she was

Catholic.

That religious atmosphere, she said, continued throughout her employment.

As she and Mr. Terry developed a closer relationship, they would discuss religion

almost every week. He provided her with religious literature, joked about

converting her, and repeatedly stated that “hiring return missionaries would be a

good idea,” as “they made good salespeople because they sold the Book of

Mormon” and “would help improve . . . the persona of the office.” Id. at 96–97.

In a late 2005 conversation, when Ms. DeFreitas showed signs of work-related

stress, Mr. Terry suggested that she and her husband attend church to meet friends

and to “bring [her] spirit up.” Id. at 294 (internal quotation marks omitted). She

also mentioned a conversation after her September 2005 promotion: She had

hired Emily Bitner as a leasing agent at Park Place, but Bitner had become

pregnant and did not intend to return to work after having her baby. When

Ms. DeFreitas expressed her displeasure about having to hire another leasing

agent, Mr. Terry opined that Bitner was “a good Mormon girl, most Mormon girls

stay home after they have children,” id. at 287 (internal quotation marks

omitted)—a comment that Ms. DeFreitas took as disparaging, considering that she

did return to work after her May 2005 maternity leave.

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 Ms. DeFreitas also observes that the four workers at Park Place who were

fired during her hysterectomy leave were all Catholics. And she points out that

the subject line on her own termination email was a biblical reference—namely,

“Ecclesiastes 3,” id., Vol. B at 585, which is apparently a reference to the biblical

language “To everything there is a season.” Finally, she notes that her

replacement as interim manager at Park Place, Marina Palmer, is LDS.

B. Litigation

On March 29, 2006, Ms. DeFreitas initiated an FMLA complaint with the

United States Department of Labor. And on the following May 4 she filed an

employment-discrimination complaint with the Utah Antidiscrimination and

Labor Division, alleging that her termination was on the basis of religion.

Ms. DeFreitas then asked the Utah agency to discontinue its administrative

process and requested that the Equal Employment Opportunity Commission issue

a notice of her right to sue. When the EEOC provided her with the notice, she

filed the present suit in state court on October 6, 2006. Defendants removed the

case to federal district court.

During the district-court litigation Defendants offered several reasons for

firing Ms. DeFreitas. For each we will summarize Defendants’ evidence and the

contrary evidence.

One stated concern was Ms. DeFreitas’s interpersonal skills. Mr. Terry

testified that she had ongoing problems managing her staff and getting along with

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others. Ms. DeFreitas, he said, had broached the topic herself when he was trying

to persuade her not to leave Horizon for a higher-paying job. In explaining what

would keep her at Horizon, she said that there needed to be a stop to rumors

within the company that she was a “bitch.” Id., Vol. A at 141 (internal quotation

marks omitted). He told her that he would have meetings to encourage employees

to support one another. At that time he did not investigate whether the rumors

were true, “[b]ecause I didn’t care. I liked [Ms. DeFreitas], and that’s what

mattered to me.” Id. He did state, however, that he later discussed with her “on a

couple different occasions” his concerns that she had “a little bit of a temper . . .

[a]nd would oft times blow up at her [staff].” Id. at 426.

Mr. Terry also testified about information concerning Ms. DeFreitas’s

relations with subordinates that he had received during the last two months of her

tenure. On January 4, 2006, Tony Archuleta, a maintenance worker at Park Place,

complained that “she would play one employee against another and she had

favorite employees,” and that “she would blow up about any variety of things”

and “was constantly defensive.” Id. at 327. Archuleta also alleged that

Ms. DeFreitas had visited his home and cursed and threatened him and his wife.

Under Horizon’s Manual of Operations, cursing at employees is punishable by

termination.

Mr. Terry received similar complaints about Ms. DeFreitas in a series of

interviews of six employees at Park Place beginning on February 16, the day after

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Ms. DeFreitas’s surgery. Ironically, the interviews began with a meeting he had

called after hearing that all the office employees would quit if Tony Archuleta

were not fired. One of the complaints was that he was a “pet” of Ms. DeFreitas

and “was allowed to get away with murder.” Id. at 319. They also complained

that she had installed a security camera in the office. They had unplugged it

because they thought that she was watching them from her home. Mr. Terry

acknowledged, however, that she had installed the camera after some cash had

disappeared from the office and that he did not disagree with the installation. The

other complaints about which Mr. Terry testified related to mistreatment of

employees, such as Ms. DeFreitas’s cursing at and humiliating them. Mr. Terry

testified that he investigated whether Ms. DeFreitas could be reassigned to other

properties, only to be told that the two other regional managers in the Salt Lake

City area did not want to work with her. He claimed that he had talked to

Ms. DeFreitas numerous times to relay the staff concerns.

In response to the allegations about poor interpersonal skills, Ms. DeFreitas

pointed out that there were no written warnings or any other official

documentation of these allegations. And even though Mr. Terry claimed to have

discussed these matters with her, he conceded that no such conversations were

reported in his day-planner notes (which corroborated that he had received

complaints from Park Place personnel). She admitted using profanity but never at

somebody else; and she noted that Marina Palmer, who was promoted to regional

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manager after Ms. DeFreitas’s termination, had her own history of yelling and

cursing at subordinates. Mr. Terry acknowledged that he had talked to Palmer

about swearing at staff, but said that she had corrected the problem.

Another reason that Mr. Terry gave for Ms. DeFreitas’s termination was a

false time slip. He contended that she had taken off time to see doctors and the

hospital before her surgery yet had reported working a full eight hours on her

time card. He admitted, however, that he had given her permission to go “back

and forth [to her doctors] for different reasons prior to her surgery,” id. at 316,

and that Ms. DeFreitas may have had an understanding that “she was being paid

for the time off,” id. He even conceded that he had instructed Horizon to pay

Ms. DeFreitas for the time that she had allegedly missed. Furthermore, Mr. Terry

did not discuss the matter with Ms. DeFreitas.

Mr. Terry also stated that a ground for Ms. DeFreitas’s termination was her

underperformance at Park Place. He testified that he spent a lot of time at the

property, including attending meetings with her and the owner, and that he had

offered to the owner that she be removed as manager. But other than his

previously noted concerns about problems with subordinates, Mr. Terry testified

to no specific criticisms regarding Ms. DeFretias’s work at Park Place, and he

even conceded that another property she was managing, Edison Place, which had

the same owner, was “performing very well, at least in our opinion.” Id. at 418.

Moreover, Ms. DeFreitas provided a declaration from Morse, the owner,

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suggesting that she was not the problem at Park Place. He said that before she

“was brought in, Horizon had already had numerous difficulties in managing Park

Place,” such as “the high rate of [Horizon’s] staff turnover . . . .” Id., Vol. B at

630. He fired Horizon about a month after Ms. DeFreitas’s firing, but he had

never identified Ms. DeFreitas as his main reason for terminating his contract

with Horizon.

Defendants’ last ground for terminating Ms. DeFreitas was her handling of

tax-credit compliance for her properties. Lyman Adams, Horizon’s chief

operating officer, testified in his deposition that Horizon employees in the tax-

credit-compliance department had expressed concerns with Ms. DeFreitas’s

honesty in handling compliance documentation, even before her promotion to

regional vice president. He said that he had never spoken to her about the matter

but had raised these concerns in several executive-committee meetings (for which

no minutes were prepared). He also claimed that he had spoken with Mr. Terry

about Ms. DeFreitas and tax-compliance issues at least six times, including just

before her termination, and he assumed that Mr. Terry had talked with her. In

addition, he thought that one of the compliance employees had spoken with

Ms. DeFreitas. Mr. Adams, however, had never seen the allegedly deceptive

documents and Defendants produced no documentary evidence of any dishonest

record-keeping by Ms. DeFreitas or any documentation of warnings to

Ms. DeFreitas about dishonest record-keeping. And in his deposition (which

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preceded Mr. Adams’s) Mr. Terry did not mention tax-compliance issues as a

reason for firing Ms. DeFreitas.

The district court granted summary judgment in favor of Defendants on

Ms. DeFreitas’s claims of (1) interference with her FMLA rights, (2) religious

discrimination under Title VII, and (3) hostile work environment, also under Title

VII. On appeal she does not challenge the dismissal of her hostile-work-

environment claim.

II. FMLA INTERFERENCE CLAIM

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

Zokari, 561 F.3d at 1081. Summary judgment should be granted only if “there is

no genuine issue as to any material fact and . . . the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

An employee is “eligible” for leave under the FMLA if she has been

employed for at least 12 months by an employer covered under the statute, and

has worked at least 1,250 hours for the employer during the previous 12-month

period. 29 U.S.C. § 2611(2). Eligible employees are “entitled to a total of 12

workweeks of leave during any 12-month period” for “a serious health condition

that makes the employee unable to perform the functions of the position of such

employee.” Id. § 2612(a)(1)(D). A serious health condition is “an illness, injury,

impairment, or physical or mental condition that involves . . . inpatient care in a

hospital . . . or continuing treatment by a health care provider.” Id. § 2611(11).

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Once the employee returns from leave, she must be reinstated to her previous

position or an equivalent one. See id. § 2614(a)(1).

There are two theories of recovery under § 2615(a) of the FMLA. One is a

retaliation or discrimination theory under § 2615(a)(2), which makes it “unlawful

for any employer to discharge or in any other manner discriminate against any

individual for opposing any practice made unlawful by this subchapter.” See

Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170–71 (10th Cir.

2006). The other, which is relied upon by Ms. DeFreitas, is an interference

theory under § 2615(a)(1), which makes it “unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to exercise, any right

provided under this subchapter.”

To establish an FMLA interference claim, “the plaintiff must demonstrate:

(1) that . . . she was entitled to FMLA leave, (2) that some adverse action by the

employer interfered with . . . her right to take FMLA leave, and (3) that the

employer’s action was related to the exercise or attempted exercise of [her]

FMLA rights.” Metzler, 464 F.3d at 1180 (brackets and internal quotation marks

omitted). “Under this theory, a denial, interference, or restraint of FMLA rights

is a violation regardless of the employer’s intent.” Id. An employer can defend

the claim, however, by showing that “the dismissal would have occurred

regardless of the employee’s request for or taking of FMLA leave.” Id. (internal

quotation marks omitted); see 29 C.F.R. § 825.216(a)(1) (Department of Labor

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FMLA regulation stating that when an employee is laid off during FMLA leave,

“[a]n employer would have the burden of proving that an employee would have

been laid off during the FMLA leave period and, therefore, would not be entitled

to restoration”). Defendants do not argue that Ms. DeFreitas failed to satisfy the

first two elements required to establish an interference claim. Thus, we address

only whether her firing was related to her taking leave, and whether she would

have been fired anyway, regardless of leave.

The related-to issue is easy to resolve. Whenever termination occurs while

the employee is on leave, that timing has significant probative force. See Smith v.

Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 961 (10th Cir. 2002) (“The

timing of Smith’s termination[, which occurred during leave,] also indicates a

causal relation between her FMLA leave and her dismissal.”). The timing here is

particularly suggestive. Ms. DeFreitas’s termination occurred just one day after

she told Mr. Terry that she would need to take a full six weeks off and could not

return sooner. Moreover, Mr. Terry later told Ms. DeFreitas’s prospective

employer that the reason for her departure was “illness.” Aplt. App., Vol. A at

176. There is additional evidence that her termination was related to her leave,

but this will suffice.

We now turn to Defendants’ claim that Ms. DeFreitas would have been

fired even if she had not been taking FMLA leave. Defendants offered evidence

that (1) she had significant personality conflicts with her staff, (2) she had

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misreported her work time, (3) Park Place’s performance was not up to snuff, and

(4) she had mishandled tax-credit-compliance documentation. But a reasonable

jury could reject Defendants’ assertion that she was fired for those reasons.

To begin with, there is a good deal of evidence that she was a highly valued

employee doing excellent work. She joined Horizon in June 2004. Within six

months she secured a raise and a transfer to the more-challenging Layton Pointe

property. In a November 2004 email, Mr. Terry said: “[W]e are so glad to have

you as part of our team and even more pleased to have you at Layton [Pointe].

Thanks for all you do and all the extra thought, time and energy.” Id., Vol. B at

747. After being offered a job by another company, she received a promotion to

regional vice president and a raise from $28,000 a year to $38,000 on

September 1, 2005. She was then entrusted with Horizon’s three most

challenging properties. Praise continued until less than three months before she

took leave for surgery. For example, a November 23, 2005, email from a Horizon

executive-committee member exclaimed, “You are doing an excellent job!” Id. at

730. Two days earlier Mr. Terry had written: “You are doing super. . . .

Dynamite job. . . .” Id. at 732. (Even after her termination, Mr. Terry told a

prospective employer that she was the “[b]est leaser he ha[d] known,” and that he

would rehire her. Id., Vol. A at 176.)

In contrast to the messages to Ms. DeFreitas extolling her performance,

there are none to the contrary. This is particularly striking in light of the

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emphasis in Horizon’s Manual of Operations on documenting poor performance

and warnings to employees. In particular, the Manual provides for probation

coupled with formal warnings (rather than immediate termination) absent

egregious misconduct; requires the supervisor to conduct an interview with an

employee on probation to ensure that she understands her performance problems;

emphasizes that documentation is critical to demonstrating fair treatment of the

employee; and mandates that upon termination, an exit interview be conducted to

provide the employee with written reasons for her discharge. None of these steps

was followed here.

Furthermore, there are additional specific reasons to question Defendants’

evidence regarding the alleged grounds for Ms. DeFreitas’s termination. We

address them in the reverse order from our discussion of the district-court

evidence.

First, the allegation that Ms. DeFreitas altered tax-credit-compliance

documents is not supported by any altered documents or even the testimony of

anyone who saw such documents. Nor did Mr. Terry see fit to mention the matter

in testifying to his reasons for terminating Ms. DeFreitas.

Second, Defendants do not direct us to any contemporaneous evidence that

Ms. DeFreitas’s performance in managing apartments was of any concern to

Horizon executives. (We leave to the side for the moment the allegations raised

in the postleave interviews of her subordinates.) Mr. Terry conceded that her

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performance at Edison Place was good, he testified to no particulars regarding

what she had failed to do at Park Place, and the owner of Park Place did not

assign any specific blame to her for his terminating Horizon.

Third, Mr. Terry acknowledged that Ms. DeFreitas’s alleged misreporting

of work time could have resulted from a misunderstanding. And it would be

remarkable for him to consider the error to be a ground for firing when he

instructed that she be paid for the time even after he learned of the allegedly

incorrect reporting.

That leaves the strongest evidence supporting Ms. DeFreitas’s

discharge—the complaints lodged by her subordinates. But some complaints

were inconsistent with one another; in particular, Mr. Archuleta asserted how

badly he was treated by Ms. DeFreitas, whereas others complained that she let

him get away with everything. Also, Mr. Terry knew that at least one complaint

was unfounded—namely, the allegation that Ms. DeFreitas had installed a

surveillance camera for improper reasons. And other complaints were short on

specifics. Most importantly, however, viewing the evidence in the light most

favorable to Ms. DeFreitas, it might well strike the jury as passing strange that

Mr. Terry would fire Ms. DeFreitas based on comments by subordinates without

first asking her for her version of events, given that she had been considered such

a stellar employee for at least 18 of her 21 months with Horizon. When asked at

his deposition whether he had “ever seen a situation where underlings who are

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unhappy with their supervisors will say things about them which may or may not

be correct,” he answered, “Absolutely.” Id. at 316.

Finally, we note the elephant in the room. One reason that a reasonable

jury could reject Defendants’ assertions regarding the grounds for firing her is

that there appears to have been another ground for her firing, a very simple,

commonsensical one—namely, that she was missing too much work. This is

hardly an unheard-of reason for an employer to discharge an employee. Indeed,

the FMLA was enacted because employers had found it in their economic self-

interest to fire employees who missed too much work for medical care or other

reasons now addressed by the FMLA. It would be eminently reasonable to

believe that an employer who was ignorant of the FMLA—as Mr. Terry admitted

he was before Ms. DeFreitas complained of her firing—would engage in the very

practice that the FMLA was enacted to prevent. Recall that Mr. Terry told

Ms. DeFreitas’s next employer that she had lost her job because of “illness.”

Accordingly, we conclude that there is a genuine issue of fact concerning whether

Horizon would have fired Ms. DeFreitas regardless of whether she took FMLA

leave.

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III. RELIGIOUS-DISCRIMINATION CLAIM

Ms. DeFreitas also challenges the summary judgment in favor of Horizon 2

on her religious-discrimination claim. We reject the challenge.

Title VII of the Civil Rights Act of 1964 makes it “an unlawful

employment practice for an employer . . . to discharge any individual . . . because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1). Ms. DeFreitas’s claim was that “[a] factor motivating Horizon’s

termination of Plaintiff and others was their Catholic religious faith affiliation.”

Aplt. App., Vol. A at 11.

To establish a prima facie unlawful discharge case, the plaintiff must
show the following:

(1) that [s]he was subjected to some adverse employment
action;

(2) that, at the time the employment action was taken, the
employee’s job performance was satisfactory; and

(3) some additional evidence to support the inference that the
employment actions were taken because of a discriminatory
motive based upon the employee’s failure to hold or follow his
or her employer’s religious beliefs.

2
Ms. DeFreitas does not have a claim against Mr. Terry under Title VII.
See Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996) (“[W]e agree with the
majority view that, taken as a whole, the language and structure of amended Title
VII continue to reflect the legislative judgment that statutory liability is
appropriately borne by employers, not individual supervisors.”).

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Fischer v. Forestwood Co., 525 F.3d 972, 978–79 (10th Cir. 2008) (emphasis and

internal quotation marks omitted). 3 “Once the plaintiff establishes a prima facie

case, the burden shifts to the defendant to articulate a legitimate

nondiscriminatory reason for its decision to discharge the plaintiff,” and “[i]f the

defendant meets its burden of production by offering a legitimate rationale in

support of its employment decision, the burden shifts back again to the plaintiff to

show that the defendant’s proffered reasons were a pretext for discrimination.”

Id. at 979.

Defendants do not dispute on appeal that Ms. DeFreitas made out a prima

facie case. In turn, she does not dispute that Horizon offered nondiscriminatory

reasons for her termination. She does dispute, however, the district court’s ruling

that she failed to produce sufficient evidence to support a finding that Horizon’s

stated reasons were pretextual.

On this point, we agree with Ms. DeFreitas. Our above discussion of

Ms. DeFreitas’s FMLA claim noted the credibility problems that could undermine

Defendants’ account of the reasons for termination. See Turner v. Pub. Serv. Co.

3
In assessing whether Ms. DeFreitas made out a prima facie case, the
district court and the parties employed a standard requiring proof that “‘(1) she is
a member of a protected class; (2) she was qualified to perform her job; (3)
despite her qualifications, she was discharged; and (4) the job was not eliminated
after her discharge.’” Aplt. App. Vol. C at 1243 (quoting Lyons v. Red Roof Inns,
Inc., 130 F. App’x 957, 960 (10th Cir. 2005)). That standard, as we have
previously observed, is not suitable for a religious-discrimination claim brought
against members of a minority religion. See Shapolia v. Los Alamos Nat’l Lab.,
992 F.2d 1033, 1038 (10th Cir. 1993).

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of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009) (“A claim of pretext . . . may be

based on weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s claimed legitimate, non-discriminatory reason

such that a rational trier of fact could find the reason unworthy of belief.”

(internal quotation marks omitted)).

Nevertheless, we affirm the summary judgment on this claim. In the course

of ruling that Ms. DeFreitas had failed to present sufficient evidence of pretext, a

ruling with which we disagree, the district court also ruled that she had failed to

present sufficient evidence of the intent necessary for religious discrimination.

With that ruling we agree.

“[I]t is not always permissible for the factfinder to infer discrimination

from evidence that the employer’s explanation is unworthy of belief.”

Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 (10th Cir. 2007).

As the Supreme Court has stated, “[T]here will be instances where, although the

plaintiff has established a prima facie case and set forth sufficient evidence to

reject the defendant’s explanation, no rational factfinder could conclude that the

action was discriminatory.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 148 (2000). “For instance,” it explained, “an employer would be entitled to

judgment as a matter of law if the record conclusively revealed some other,

nondiscriminatory reason for the employer’s decision, or if the plaintiff created

only a weak issue of fact as to whether the employer’s reason was untrue and

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there was abundant and uncontroverted independent evidence that no

discrimination had occurred.” Id. Factors to be weighed “include the strength of

the plaintiff’s prima facie case, the probative value of the proof that the

employer’s explanation is false, and any other evidence that supports the

employer’s case and that properly may be considered.” Id. at 148–49.

Our opinion in Swackhammer is instructive. Swackhammer, a female vice

president of Sprint, was terminated by the company’s senior vice president,

Castanon, after he received complaints that she had engaged in unethical

behavior. See 493 F.3d at 1163–65. But another vice president, Winters, a male

who was the subject of similar allegations, was not terminated. See id. at 1171.

Swackhammer claimed gender discrimination. Sprint contended that the reason

for the different treatment of Swackhammer and Winters was that her violations

were more severe. See id. We acknowledged that there was a genuine issue of

fact concerning the truth of this contention. But the only alternative explanation

supported by the record was that Castanon treated Winters more leniently because

the two were friends. See id. at 1172. Thus, either Swackhammer was treated

more harshly than Winters because her misdeeds were worse or because Castanon

favored a friend, which “while perhaps unfair, was similarly nondiscriminatory.”

Id. We therefore affirmed summary judgment in favor of the company.

Turning to this case, Ms. DeFreitas has argued that religious discrimination

is shown by the following: (1) other Catholic staffers were fired; (2) Marina

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Palmer, who was promoted to regional manager despite her reputation for

swearing at employees, was LDS; (3) religious discussion permeated the

workplace; and (4) Mr. Terry (a) provided her with religious literature, (b) joked

about converting her to the LDS Church, (c) commented that an employee was a

“good Mormon girl,” when noting that she, unlike Ms. DeFreitas, did not return to

the workplace after having a child, (d) often commented that former LDS

missionaries made good salespeople, and (e) referenced “Ecclesiastes 3” in her

termination email.

Although this evidence could suffice to demonstrate a prima facie case,

most of it is quite weak. Ms. DeFreitas, for example, provides no evidence of the

circumstances surrounding the firing of the other Catholic staffers. For all the

record shows, they could have been terminated for cause. Nor has she provided

any evidence to contradict Mr. Terry’s statement that he promoted Palmer only

after she stopped cursing. And she gives almost no specifics about religious

discussion in the workplace (other than her conversations with Mr. Terry).

The remaining evidence relates to Mr. Terry. Some is of questionable

relevance. Ecclesiastes is a holy book to Catholics as well as to the Church of

Jesus Christ of Latter-day Saints. And even if Mr. Terry frequently discussed his

religion with Ms. DeFreitas, she did not contradict his testimony that it was she

who initiated religious conversations. But regardless of whether Mr. Terry’s

remarks can be interpreted as displaying partiality to members of his faith, it

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would not be reasonable to draw an inference that he fired Ms. DeFreitas because

of her religion. The uncontradicted evidence is that her Catholicism was known

throughout her tenure with Horizon, yet Mr. Terry had treated her well. In some

21 months he had given her two raises—the second of which was more than a 1/3

increase in salary—and had given her praise as well as increasing responsibilities.

Ms. DeFreitas points to nothing with religious overtones that occurred during her

final months with Horizon that could account for any religious animosity by

Mr. Terry toward her. In light of this history, it simply beggars the imagination

to believe that she was fired on religious grounds. See Kadas v. MCI

Systemhouse Corp., 255 F.3d 359, 361–62 (7th Cir. 2001) (age-discrimination

claim rejected because “it is eminently reasonable to doubt that . . . 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. A company that didn’t want 54-year-olds on

its payroll would be unlikely to hire one rather than to hire one and promptly fire

him.” (citations omitted)). The only plausible grounds are the reasons proffered

by Defendants and her lengthy absence from work. Accordingly, her religious-

discrimination cannot go forward.

IV. CONCLUSION

We REVERSE the summary judgment in favor of Defendants on

Ms. DeFreitas’s FMLA interference claim and REMAND for further proceedings.

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We AFFIRM the district court’s grant of summary judgment with respect to her

religious-discrimination claim.

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