Jeanne Wallner v. J.J.B. Hilliard, W.L. Lyons LL

590 F. App'x 546
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 31, 2014
Docket13-6548
StatusUnpublished
Cited by18 cases

This text of 590 F. App'x 546 (Jeanne Wallner v. J.J.B. Hilliard, W.L. Lyons LL) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jeanne Wallner v. J.J.B. Hilliard, W.L. Lyons LL, 590 F. App'x 546 (6th Cir. 2014).

Opinions

GRIFFIN, Circuit Judge.

Plaintiff- Jeanne Wallner, a twenty-seven-year employee who was fired by defendant Hilliard Lyons nine days after returning to work from taking leave under the Family and Medical Leave Act (“FMLA”), appeals the district court’s entry of summary judgment against her FMLA interference and retaliation claims. We affirm the entry of summary judgment in defendant’s favor on Wallner’s FMLA interference claim because she has neither alleged nor demonstrated that she was denied a statutory benefit to which she was entitled. But, because we conclude that a reasonable jury could find that Wallner’s exercise of her FMLA rights was a motivating factor for defendant’s decision to terminate her, we reverse the entry of judgment against her FMLA retaliation claim and remand for further proceedings.

I.

Wallner was hired by Hilliard Lyons, a financial brokerage firm, in 1982 and worked as an options trader in its three-person options department for twenty-seven years. In 2009, her supervisor was Denny Moorman, while Cassondra Dunning — a trader like Wallner — rounded out the department.

In January 2009, Wallner was preparing to leave for vacation but learned on the evening before her planned departure that her domestic flight had been rescheduled to leave the next day at 7:00 a.m. rather than at 7:00 p.m. Wallner called Moorman that evening to request the next day off of work due to the rescheduled flight, and he granted her request. When she returned from vacation, however, Moorman, who had earlier communicated to human resources his concerns that Wallner habitually arrived late to work, handed Wallner a written warning for “chronic tardiness and abuse of unscheduled absences.” The “unscheduled absence” to which the warning referred was the day that Moorman had given her permission to take off. According to Moorman, each workday ended at 5:00 p.m., meaning that her call in the evening was the “next day as far as I’m concerned, which would be [an unscheduled] same day [request for time off].” Despite the warning’s additional allegation of habitual tardiness, Moorman had never mentioned chronic tardiness as a deficien[548]*548cy in Wallner’s previous performance appraisals.

In June 2009, Wallner requested FMLA leave in order to have knee-replacement surgery. Her physician completed the pertinent paperwork, estimating that Wall-ner would be unable to work for two months: from August 11 until “approximately]” October 11, 2009. As Hilli-ard Lyons concedes, Wallner’s FMLA leave was approved through the end date noted by Wallner’s physician.

Wallner underwent her scheduled surgery and began taking FMLA leave while recuperating. Wallner’s short-term disability insurance carrier, however, had calculated Wallner’s return-to-work date as September 22, 2009. On September 14 and 15, Sharon Landgraf, a human resources manager at Hilliard Lyons, telephoned Wallner and informed her that she was expected to return to work on September 22. Wallner, who was still convalescing from surgery, tried to explain to Landgraf the difference between short-term disability and FMLA leave and that she could not return to work until her doctor cleared her to do so. Landgraf nevertheless insisted that Wallner needed to return on September 22. Courtesies degenerated, and Wallner’s husband, who had been listening to the exchange in the background, began shouting profanities that Landgraf could hear over the phone.

After conversing with Landgraf, Wallner contacted her short-term disability carrier and was able to extend her coverage through October 1. Upon receiving the update, Landgraf sent Wallner a letter that again erroneously conflated short-term disability leave with FMLA leave, informing Wallner that her FMLA leave had been extended through October 1, 2009, with a return-to-work date of October 2.

Because her FMLA leave was not coterminous with her short-term disability coverage, Wallner — who did not receive Land-graf s letter until after October 2 — was not required to return to work on the day that her disability coverage expired and did not do so. Her next physician’s appointment was on Monday, October 5, at which her doctor cleared her to return to work— almost a week earlier than he had initially estimated would be possible. Immediately upon receiving clearance from her doctor to return to work, Wallner contacted Hilli-ard Lyons with the news that she would be back at work the next day.

During Wallner’s absence on FMLA leave, Landgraf had twice informed Moor-man that Wallner would be returning to work when she actually would not — first on September 22, then on October 2. Landgraf does not recall ever informing Moorman that she was incorrect about Wallner’s return-to-work date, and Moor-man does not remember being told that Landgraf had been mistaken. In fact, Moorman had been “suspicious” that Wall-ner would not show up on September 22, and when she did not, he felt that his suspicions had been confirmed. “[T]he dates were changing,” and Moorman was simply going to “wait until she got back” before he “believed” that she would actually show up on any given date. In the meantime, running a three-person department with only two people was difficult for Moorman, who later indicated that the department was so busy that he could not leave it during Wallner’s FMLA absence to attend meetings in other locations or even, at times, to take lunch or bathroom breaks.

On October 6 — the day of Wallner’s return from FMLA leave-three things happened. First, she was reinstated to her options trader position. Second, she was issued a final written warning for her behavior during the September 15 phone call with Landgraf and for purportedly failing [549]*549to stay in contact with Hilliard Lyons af-terwards. The warning was styled a “final” written warning despite the fact that Wallner had not received any intermediate warning for her behavior, as was required by company policy. And third, Wallner’s colleague, Cassondra Dunning, began making informal records of when Wallner arrived for work each morning.

According to Dunning’s records — which she claims that she gave to Landgraf at some point but cannot recall whether it was before or after Wallner’s termination — Wallner arrived a few minutes after 8:00 a.m. on five days following her return to work: specifically, at 8:05, 8:02, 8:06, 8:09, and 8:05 a.m. Moorman himself did not keep any documentation of Wall-ner’s arrival times, despite the fact that Landgraf had instructed him to do so if her tardiness was a problem. When Wall-ner arrived at 8:05 a.m. on October 15 (video footage later established that she had actually arrived at 8:02:52), Moorman decided that she should be fired. Moor-man later testified that “to be five minutes late is not necessarily a swing factor,” but that “five to 15 minutes late consistently when it affects other employees is a major problem.”

Moorman and several human resources personnel, including Landgraf, terminated Wallner on the afternoon of October 15, nine days after she returned from FMLA leave. Moorman later compiled a “document of deficiencies” that he indicated “were basically the reasons” for Wallner’s termination. It read:

It was company policy to be at work at 8:00 AM. [Wallner] was persistently late (5-15 minutes) even in view of repeated warnings. This created a morale problem within the department.
She would occasionally call in the morning before work to inform us that she would be absent from work that day. Unscheduled absences were not permit[t]ed.

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Cite This Page — Counsel Stack

Bluebook (online)
590 F. App'x 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeanne-wallner-v-jjb-hilliard-wl-lyons-ll-ca6-2014.