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On May 13, 2014, Litigation Principal <a href="https://www.goldbergkohn.com/people/david-morrison/">David Morrison</a> won a summary judgment for Abbott Laboratories before the U.S. District Court of Kansas on claims of sex and religious discrimination, retaliation and FMLA interference and retaliation.

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In <a href="https://admin.goldbergkohn.com/wp-content/uploads/2023/10/DISCRIMINATION.pdf">Didier v Abbott Laboratories</a> the Court ruled that a Catholic woman with children, who alleged that her Mormon boss expressed concern over her being "stretched too thin" and asked her if her husband had a good job and whether they “would be okay” if she were terminated, may not proceed with her claims under Title VII and the FMLA, based on her termination over expense report violations, which occurred during a period of intermittent FMLA leave.

The Court found that the comments were “stray remarks,” that male employees were not similarly situated, and that her termination was actually recommended by a female manager in employee relations.

Ten years into her employment, the sales rep (who by then was promoted to district manager), was fired for expense report violations, including falsifying a form and submitting improper expenses reports for meals for her family. She was reported directly to the Regional Manager, a Mormon man, who had promoted her to the district manager position.

She alleged that during her interview for that promotion, he asked if she was being “stretched too thin” because both she and her spouse worked full-time and had four young children.

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In November 2011, the employee requested intermittent FMLA leave to care for her two young sons, which was encouraged by the Regional Manager and granted by the employer. In December, however, she submitted an expense request that was flagged by an automated system, causing the corporate disbursement department to monitor whether it was approved.

Following the Regional Manager’s denial of approval, a disbursement analyst conducted a review of the employee’s expense reports and initiated a two-year audit after finding requests for a number of meals disproportionate to the number of overnight stays she had. A report was submitted to the corporate office of ethics and compliance for further investigation. There was no evidence that the Regional Manager or his immediate supervisor was aware of this review.

In the meantime, the Regional Manager had his own questions about an expense report the employee submitted because she wrote his name on the signature line and noted his signature was “on file.” She explained that she kept getting kicked out of the computer system, knew he would see that she had written his name, and had done so to expedite the approval process for him. He also expressed concern about a dinner reimbursement request where she wrote “family” in the comment section and that had occurred on a company holiday. She told him that he had been approving family dinner expenses for years and that her prior supervisors had also done so. She told him that she understood such approval to be consistent with policy and that she was surprised that he understood the policy differently. She told him the reason the expense occurred on a non-work day was because she was traveling early the next morning.

After meeting with him, she called the corporate disbursement call center and confirmed her understanding of the policy with a representative, which she then outlined in an email to the Regional Manager. However, the representative denied confirming her understanding when the Regional Manager asked.

The Regional Manager then reached out to the company’s HR department and an employee relations manager was assigned to address his concerns. After learning that an audit had been initiated separately on the employee’s expenses, the manager also submitted a new case report to the office of ethics and compliance.

After receiving the results of an investigation conducted by a global security investigator, which included an interview of the employee and which had found that she violated the code of business conduct and had not followed appropriate procedures, the employee relations manager recommended termination. The Regional Manager and his supervisor concurred and the employee was fired.

At the outset, the Court rejected the employee’s assertion that she presented direct evidence of sex discrimination. She pointed to the “stretched too thin” comment and the Regional Manager’s comments prior to her termination asking about her husband’s job. She also presented evidence from two other female employees — her replacement, who testified that she resigned because of the Regional Manager’s attitude toward working mothers, and another who reported that the Regional Manager had expressed his belief that women with young children should stay home.

However, the Court found this evidence did not reflect a policy and did not reflect statements made by the Regional Manager during the decision-making process. Instead, the comments required the trier of fact to draw an inference. Moreover, the only comment that was contemporaneous with the decision “could just as plausibly be interpreted as benign rather than discriminatory.”

The employee fared no better under the McDonnell Douglas framework. Although she made out a prima facie case, she failed to show pretext. The four male comparators upon which she relied were not, in fact, similarly situated. The closest was a male sales rep who underestimated personal mileage and owed the employer restitution. Although his termination had also been recommended, he was not fired because HR determined that he had been following accepted practice and had not been properly trained. The Regional Manager supported the decision to terminate him (as he had with the employee) but the Regional Manager’s supervisor had pushed back and the male employee was retained. Moreover, a male district manager the plaintiff offered as a comparator had also been forwarded for investigation by the Regional Manager.

As for the Regional Manager’s comments to the other female subordinates, the Court found they were nothing more than “stray remarks.” It also rejected, for purposes of pretext, a comment the Regional Manager made to a male district manager that “one way to get rid of an employee is to turn them in for expense reporting violations.” With regard to the “stretched too thin” comment, the Court noted that it was in the context of him promoting the employee and that there was no evidence that he had expressed that concern again. Additionally, the employee had not explained how advice by the Regional Manager that she should “focus on her family and her faith” and his question whether her husband had a good job evidenced “a bias against women in the workplace.”

Finally, the Court explained that the termination was recommended by a female employee who had reviewed an “undisputedly independent and thorough investigation” conducted by a female investigator, and that the employee had not alleged any improper motive on their part. It pointed out that this was not a situation where they “rubber stamped” the Regional Manager’s concerns.

And while the Court recognized the employee’s contention that the Regional Manager could have pushed back, it explained that the “key” was that he was following the “uncontrovertibly unbiased recommendation of” the employee relations manager and not the other way around. While the decision did “seem unfair and maybe even unwarranted,” such unfairness did not establish pretext as no doubt had been cast on the employer’s reasons for terminating the employee. The Court therefore granted the employer’s motion on the sex discrimination claim.

The Court also granted the employer’s motion for summary judgment on the employee’s religious discrimination claim, which the Court characterized as a “reverse discrimination” claim (because non-Mormons constituted a majority of society). The Court noted that her claim did not reach the bar for such a claim that had been set by the Tenth Circuit in DeFreitas v Horizon Inv Management Corp and that the employee had presented “no evidence suggesting any religious animosity” by the Regional Manager towards the district manager “or that her discharge was based in any way on the fact that she [was] not Mormon.”

At the time she was terminated, the employee had been taking intermittent FMLA leave. However, her claims for retaliation and interference failed because (1) she was terminated four months after she requested the leave, which the Court held was insufficient to establish a causal relationship, and (2) because the investigator and employee relations manager had no knowledge that she had requested or was taking intermittent leave.

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