Patricia Travers v. Cellco Partnership

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 8, 2014
• Docket: 13-6527
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0696n.06

No. 13-6527 FILED UNITED STATES COURT OF APPEALS Sep 08, 2014 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

PATRICIA A. TRAVERS, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE CELLCO PARTNERSHIP, d/b/a VERIZON ) WIRELESS, ) ) Defendant-Appellee. )

BEFORE: ROGERS and GRIFFIN, Circuit Judges; and VAN TATENHOVE, District Judge.*

ROGERS, Circuit Judge. Patricia Travers worked at Cellco Partnership, d/b/a Verizon

Wireless, for two years and was terminated after taking several weeks of FMLA-approved

medical leave, and also after receiving a series of disciplinary warnings for repeated violations of

Verizon’s code of business conduct. Travers sued Verizon for interference and retaliation under

the FMLA and discrimination under the ADA. The district court granted summary judgment in

favor of Verizon and dismissed Travers’s complaint, and Travers appealed that decision. No

genuine issue of material fact exists and summary judgment was therefore proper.

From May 2008 until June 2010, Patricia Travers worked as a senior representative in

customer service for Cellco, which does business as Verizon Wireless. R. 1, at 2, PageID # 2;

R. 20-1, at 13, 30, PageID # 162, 179. During the final year of her employment at Verizon,

* The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky, sitting by designation. No. 13-6527 Travers v. Cellco Partnership, d/b/a Verizon Wireless

Travers suffered from migraine headaches and a heart condition, and as a result she took several

weeks of Family and Medical Leave Act (FMLA) leave. Travers was first approved for FMLA

leave for migraine headaches in November 2009. R. 1, at 3, PageID # 3; R. 20-2, at 6, 12,

PageID # 259, 265; R. 20-2, at 21–22, PageID # 274–75; R. 29-5, at 46, PageID # 747. Travers’s

migraines were so severe that once, in July 2009, she left work in an ambulance and had a

physician excuse her from work the following day. R. 31, at 1, PageID # 891.

Next, in March 2010, Travers began receiving treatment for a heart condition and again

requested FMLA leave. R. 20-2, at 24, PageID # 277; R. 29-5, at 41, PageID # 742; R. 29-1, at

27–28, PageID # 579–80. That year, Travers took approved intermittent FMLA leave on

February 9 and 12, 2010, and from approximately April 14–May 26, 2010 and from June 2–18,

2010. R. 1, at 3–4, PageID # 3–4; R. 20-1, at 4–6, PageID # 153–55; R. 29-5, at 46, PageID #

747. On June 2, 2010, Travers experienced heart palpitations while driving to work and, shortly

thereafter, lost consciousness in her car in the parking lot of her office. R. 1, at 4, PageID # 4; R.

29-1, at 33–35, PageID # 585–87. Travers began wearing a heart monitor to work, and

eventually, in March 2011, a cardiac defibrillator was implanted in her body to stabilize her heart

condition.

While employed at Verizon, Travers was subject to disciplinary action for violating

Verizon’s code of business conduct and attendance policy.1 Travers first received a “verbal

1 Verizon has a progressive disciplinary policy which begins with a verbal warning (“counseling”), then escalates to a written warning, then a final written warning, and ultimately possible review for termination. R. 29-2, at 5–6, PageID # 621–22; R. 39, at 1–2, PageID # 1285–86. Disciplinary actions for attendance, performance, and code of conduct violations are handled separately, and warnings remain in effect for different periods of time. R. 20-3, at 3,

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warning” in June 2009 for violating the code of business conduct because she was observed

improperly handling her voice mail account. R. 20-2, at 47–50, PageID # 300–03. The

following month, in July 2009, Travers received verbal “coaching” after she was thrice observed

proactively offering to waive mail-in rebates without the customers’ having requested to match

the online price. R. 20-2, at 49–50, PageID # 302–03. Verizon’s code of conduct prohibited

representatives in Travers’s position from proactively waiving mail-in rebates, and under the

code waiving such a rebate required supervisor approval. R. 20-6, at 26, PageID # 450; R. 20-3,

at 29, PageID # 340; R. 29-10, at 19, PageID # 876. Travers was reminded not to match online

rebates unless the customer requested it, was instructed to seek supervisor approval before

matching any online prices, and was notified that these instructions could result in corrective

action, up to and including termination. R. 29-3, at 3, PageID # 647. In August 2009, Travers

again proactively offered to waive mail-in rebates on three different customer calls, and offered

“a free phone at no cost to you,” when the promotion actually required a rebate. R. 20-1, at 37–

38, PageID # 186–87; R. 20-2, at 49–50, PageID # 302–03; R. 29-5, at 29–31, 50, 54–55, PageID

PageID # 314; R. 29-2, at 6, PageID # 622. Code of conduct violations may not start at a verbal warning, depending on the severity of the infraction. R. 29-2, at 6, PageID # 622. Code of conduct violations committed within the time frame of a prior disciplinary action and for the same behavior as the prior violation result in an escalation of the warning. R. 29-2, at 6, PageID # 622. For code of conduct violations, a verbal warning lasts three months, a written warning lasts six months, and a final written warning lasts nine months. R. 29-2, at 6, PageID # 622. However, unlike disciplinary actions for attendance and performance, which reset after the expiration of each warning, disciplinary actions for code of conduct violations do not restart after the expiration of the time frame for any specific warning. R. 29-2, at 7, PageID # 623.

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# 730–32, 751, 755–56. As a result, Travers received a written warning in September 2009,

which remained in effect for six months.2 R. 29-1, at 41–44, 46, PageID # 593–96, 598.

Ultimately, Travers received a final written warning for code of conduct violations in

March 2010 because on one call she proactively waived a rebate and represented the order as an

online price match, and on another call she inappropriately offered a free month of service

promotion.3 R. 20-2, at 51–52, PageID # 304–05; R. 20-3, at 15–17, PageID # 326–28; R. 20-2,

at 51–52, PageID # 304–05; R. 29-5, at 43, 56–57, PageID # 744, 757–58; R. 29-10, at 10–11,

13, 20–21, PageID # 867–68, 870, 877–78. The following month, on April 21, 2010, Travers

waived a mail-in rebate without notifying the customer and submitted the order for approval as

an online price match request from the customer, which it was not. R. 20-3, at 24–26, 31,

PageID # 335–37, 42; R. 29-5, at 38, PageID # 739; R. 29-10, at 8–9, PageID # 865–66. A

supervisor discussed the call with Travers, who remembered the caller but did not remember the

order or the rebate. R. 53-2, at 1, PageID # 1349. Travers disputes that she offered a rebate on

the April 21, 2010, call. R. 20-1, at 43, PageID # 192.4

2 Travers signed the warning but later denied proactively offering a rebate, didn’t remember the call, and disagreed with the warning. Around the same time as the September 2009 written warning, Travers failed a number of call audits, often for using incorrect discount reason codes and improperly applying discounts. R. 29-3, at 3, PageID # 647; R. 29-5, at 17, 21–22, 26, 28, 32, PageID # 718, 722–23, 727, 729, 733. 3 Again, Travers signed the warning but later denied proactively offering a free month and now doesn’t remember the call. R. 29-1, at 44–45, PageID # 596–97. 4 Travers also was disciplined for several attendance policy violations. Travers was first placed on written warning in October 2008. R. 29-3, at 1, PageID # 645; R. 29-10, at 15, PageID # 872. On February 2, 2009, Travers received a final written warning for attendance violations, which indicated that she had exceeded the number of unscheduled absence hours allowed under the attendance policy. R. 29-2, at 15–16, 27 PageID # 631–32, 643. Travers missed six more hours on April 14 and 17, 2009, and subsequently received a final written warning (reiterated)

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Travers was finally terminated from her job on June 21, 2010, her first day at work after

taking FMLA leave. R. 1, at 4, PageID # 4. Verizon records listed “integrity” as the reason for

termination, detailed Travers’s chronology of corrective action, and stated that the triggering

event was the April 21, 2010, call during which Travers proactively waived a mail-in rebate.5 R.

29-3, at 2, PageID # 646, R. 29-10, at 16, PageID # 873. Minyarn Pratt, Travers’s performance

supervisor, and Kimberly Gibson-Harris, a manager, informed Travers of her termination. R. 23,

at 1, PageID # 500; R. 29-1, at 6–7, 46, PageID # 558–59, 598. Travers alleges that at the

termination meeting Gibson-Harris said, “you’ve missed a lot of work,” and “we need you here.”

R. 1, at 4, PageID # 4; R. 20-1, at 3, 42, PageID # 152, 191; R. 29-1, at 7, PageID # 559;

Appellant’s Br. at 33–34. Gibson-Harris was not Travers’s manager, did not make the

recommendation or decision to terminate Travers, and denied making the alleged comment in the

termination meeting. R. 23, at 1–2, PageID # 500–01.

for attendance violations on April 29, 2009. R. 29-2, at 27, PageID # 643; R. 29-3, at 1, PageID # 645. With those additional absences, Travers had 75 hours of unscheduled absences, which so exceeded the number of acceptable unscheduled absences that she surpassed the 75-hour threshold that qualified individuals for termination of employment; yet instead of termination, Verizon placed Travers on a final written warning. R. 29-2, at 16, 27, PageID # 632, 643. A January 2010 performance appraisal indicated that Travers needed “to focus on managing her time off in 2010,” and was under a final written warning with respect to attendance. R. 20-2, at 39, PageID # 292; R. 29-5, at 34, PageID # 735. 5 Minyarn Pratt, Travers’s performance supervisor, drafted the documentation for her termination, including Travers’s termination request form, but did not make the decision to terminate Travers. R. 29-2, at 21, 27 PageID # 637, 643. The termination request form documents the reasons for termination and is sent to human resources, then to the director of human resources, and goes through “many chains for review to determine whether or not an employee will be separated from the company.” R. 29-2, at 21–22, PageID # 637–38. Pratt had no access to what Travers’s qualifying serious illness was. R. 29-2, at 25–26, 28, PageID # 641– 42, 644.

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Denise Gowler, a Verizon manager, made the initial recommendation that Travers be

terminated. R. 29-9, at 3, PageID # 838. Verizon’s standard procedure requires approval of the

termination request from multiple individuals in the management hierarchy, including the human

resources manager. Because Travers’s human resources manager, LaJuana Miller, was out of the

office, a human resources consultant who assisted Miller, Schreba Haynes, sent to human

resources’ next level of authority, Nyla Wright, an email containing Travers’s termination

request form and a second, one-page document entitled, “South Area Termination Request

Form.” This request form, filled out by Haynes, contained the following statement: “The

decision to terminate Patricia’s employment is supported by local HR. Specifically, Patricia

violated the attendance policy.” R. 53-1, at 1, PageID # 1348; R. 56-1, at 1–2, PageID # 1361–

62. Haynes did not make and was not involved with the decision to terminate Travers, and

Haynes claims the indication that the reason for Travers’s termination was attendance, instead of

integrity, was a mistake. R. 56-1, at 1–2, PageID # 1361–62.

After her termination, Travers applied for and received unemployment benefits, and her

application for benefits (which she later denied filling out) stated: “I worked as a customer

service representative and was instructed along with my coworkers not to give instant rebates to

customers without approval by a manager. I was discharged for giving an instant rebate to a

customer without approval by my manager.” R. 29-1, at 47–48, PageID # 599–600. Travers

also filed an employment discrimination claim with the EEOC in September 2011, stating that

her cardiac condition was the basis of discrimination. R. 29-1, at 29, PageID # 601; R. 20-2, at

55–58, PageID # 308–11; R. 20-1, at 44, PageID # 193.

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Travers filed this action in July 2012, seeking damages and claiming that the reason

given for her firing was a pretext for FMLA discrimination and retaliation and disability

discrimination. R. 29-1, at 29, PageID # 601; R. 1, at 5–6, PageID # 5–6. After Verizon

objected to certain of Travers’s discovery requests and Travers moved to compel discovery with

respect to certain information, Verizon moved for summary judgment. R. 18-6, at 1–4, PageID

# 119–22; R. 18-8, at 1–15, PageID # 130–44; R. 18, at 1, PageID # 60; R. 20, at 1–3, PageID #

147–49. The district court granted Verizon’s motion for summary judgment and dismissed

Travers’s action. R. 60, at 1–10, PageID # 1380–89; R. 61, at 1, PageID # 1390. The district

court determined that Travers received all the FMLA leave to which she was entitled, and that,

although she may have created a factual issue to the extent that the June 3, 2010, document

appears to state that violation of the attendance policy was the reason for her termination,

Travers failed to show that Verizon’s reason was false and was really a pretext for retaliation. R.

60, at 8, PageID # 1387. The district court found no genuine issue of material fact countering

that Verizon based its decision on the particularized facts before it at the time, that decision

makers at the time honestly believed that Travers had continued to waive mail-in rebates after

being repeatedly disciplined for it, and that the author of the June 3, 2010, document was not a

decision maker. R. 60, at 3–4, 6–7, PageID # 1382–83, 1385–86. The district court also

dismissed Travers’s ADA claim, because Travers had not shown that Verizon regarded her as

disabled or that anything about an alleged disability led to her firing, and also Travers had not

shown that Verizon’s proffered reason for firing her was pretext for discrimination. R. 60, at 10,

PageID # 1389. Travers appeals.

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The district court properly granted summary judgment in favor of Verizon because

Verizon granted all the FMLA leave to which Travers was entitled, and because Travers failed to

show a genuine issue of material fact as to pretext. This court reviews the district court’s grant

of summary judgment de novo. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 281 (6th Cir.

2012).

Travers asserted both types of claims available under the FMLA: interference claims,

pursuant to 29 U.S.C. § 2615(a)(1), “in which employers burden or outright deny substantive

statutory rights to which their employees are entitled,” and retaliation claims, pursuant to 29

U.S.C. § 2615(a)(2), “in which employers initiate adverse employment actions against

employees for exercising their FMLA right to take leave.” Romans v. Mich. Dep’t of Human

Servs., 668 F.3d 826, 840 (6th Cir. 2012). Travers also asserted an ADA discrimination claim.

Summary judgment is proper where no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a

motion for summary judgment, this court construes all reasonable inferences in favor of the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

1. Travers’s FMLA Interference Claim

Summary judgment was appropriate on Travers’s FMLA interference claim because

Verizon granted all the FMLA leave to which Travers was entitled. “The FMLA entitles

employees to an annual total of twelve weeks of leave for a number of reasons including, inter

alia, because of a ‘serious health condition that makes the employee unable to perform the

functions of the position of such employee.’” Seeger, 681 F.3d at 281 (quoting Arban v. West

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Publ’g Corp., 345 F.3d 390, 400 (6th Cir.2003) (quoting 29 U.S.C. § 2612(a)(1)(D))). 29 U.S.C.

§ 2615 prohibits employers from interfering with, restraining, or denying the exercise of or the

attempt to exercise, any right provided under the subchapter outlining general requirements for

leave. 29 U.S.C. § 2615(a)(1). To recover in an interference claim, Travers must establish that

the employer denied the employee FMLA benefits to which she was entitled. Wysong v. Dow

Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007). However, Travers received all the FMLA leave

she requested. R. 20-7, at 3, PageID # 458; R. 20-1, at 54, PageID # 203. When an employee

receives all of the FMLA leave she requested, the employee has not been denied a benefit to

which she was entitled. See Seeger, 681 F.3d at 283 (citing Stallings v. Hussmann Corp.,

447 F.3d 1041, 1051 (8th Cir. 2006)); see also Culpepper v. BlueCross BlueShield of Tennessee,

Inc., 321 F. App’x 491, 496 (6th Cir. 2009).

Travers argues that Verizon interfered with her FMLA benefits or rights by failing to

provide her with a notification of her eligibility to take FMLA leave and failing to advise her of

her rights under the FMLA at the appropriate time. Appellant’s Br. at 38–40; see 29 C.F.R.

§ 825.300(b), (c). However, even if notice were considered a FMLA benefit the denial of which

would constitute interference, Travers has not demonstrated that she was indeed denied proper

notice. The record demonstrates that Travers received information on her FMLA eligibility,

rights, and responsibilities well in advance of her health conditions: Travers received training on

the FMLA during her new hire orientation, and she knew where to go (either a particular

supervisor or a website) if she needed additional information. R. 20-1, at 26–28, PageID # 175–

77; R. 20-2, at 4–5, PageID # 257–58; R. 20-4, at 5–8, PageID # 385–88. In addition, MetLife,

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the third-party administrator who handles Verizon’s FMLA requests, notified Travers of her

FMLA rights and the relevant procedures in a letter sent one day after she had requested FMLA

leave in November 2009, and soon after she requested additional FMLA leave in March 2010.

R. 20-2, at 6–8, PageID # 259–61; R. 20-2, at 12, PageID # 265; R. 20-2, at 24–25, PageID #

277–78. Travers could not remember specifically whom at Verizon she allegedly told and when

she told them about either her migraines or her heart condition, nor could she remember whether

she told anyone at Verizon about her migraines prior to requesting FMLA leave in November.

R. 20-1, at 4–11, 39, PageID # 153–60, 188; R. 29-1, at 7–11, PageID # 563.

Even if Travers had demonstrated a violation of § 2615, she would not be able to recover

in an interference claim. 29 U.S.C.A. § 2617, which provides a cause of action against

employers for § 2615 violations, “provides no relief unless the employee has been prejudiced by

the violation.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). Because

Travers received all the FMLA leave that she requested (and thus was not denied benefits as a

result of any alleged violation), Travers has not demonstrated prejudice. Accordingly, summary

judgment in favor of Verizon was proper on Travers’s interference claim.

2. Travers’s FMLA Retaliation Claim

Summary judgment was appropriate on Travers’s FMLA retaliation claim because she

has failed to raise a genuine issue of material fact as to the existence of pretext. Employers may

not “‘discriminat[e] against employees . . . who have used FMLA leave,’ nor can they ‘use the

taking of FMLA leave as a negative factor in employment actions.’” Arban, 345 F.3d at 403

(quoting 29 C.F.R. § 825.220(c)); 29 U.S.C.A. § 2615(a)(2). Even assuming Travers has

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presented enough evidence to show a genuine issue of material fact as to whether the prima facie

case has been established, an issue we do not reach, she has not met the subsequent burden with

respect to pretext, and must therefore lose.6

Verizon has rebutted Travers’s asserted prima facie case because it demonstrated a

legitimate, non-discriminatory reason for its decision to terminate Travers—her repeated

violations of the company’s code of conduct, including proactively waiving mail-in rebates. R.

20-6, at 29–30, PageID # 453–54. If an employee establishes a prima facie case of

discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory

reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). A

defendant satisfies this burden if it produces evidence of “a legitimate nondiscriminatory reason”

for its conduct. Id. Here, Verizon maintained meticulous records showing that Travers

repeatedly violated the code of conduct, was warned and disciplined for such conduct prior to her

FMLA leave, and continued to violate the code of conduct even after having received a final

written warning. The triggering event on April 21, 2010, was Travers’s fourth infraction

regarding waiving rebates incorrectly. Verizon considered this infraction an integrity code of

conduct violation, and Travers had already received both a written warning and a final warning

for prior integrity violations (for proactively waiving mail-in rebates and inappropriate use of a

Free Month promotional offer), with the final warning having been issued only the month before

the triggering event. R. 29-3, at 2–3, PageID # 646–47. This court has previously held that

evidence of a violation of work rules that would have supported dismissal provides a legitimate,

6 Travers has not argued that the McDonnell Douglas framework is inapplicable, in light of Hunter v. Valley View Local Sch., 579 F.3d 688, 692-93 (6th Cir. 2009) (applying Price Waterhouse scheme).

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non-discriminatory reason. Romans, 668 F.3d at 839; see also Allen v. Butler Cnty. Comm’rs,

331 F. App’x 389, 394 (6th Cir. 2009) (holding that “flex time” violations and failure to abide by

a paid sick-leave call-in requirement were legitimate, non-discriminatory reasons for dismissal).

Accordingly, Travers’s repeated violations of the code of conduct were a legitimate non-

discriminatory reason for her termination.

In response, Travers failed to show a genuine issue of material fact as to the existence of

pretext—that is, that Verizon’s reason was false and that the real reason for Travers’s

termination was FMLA retaliation. “At the pretext stage, we consider whether [the plaintiff] has

adduced evidence which would enable a factfinder to conclude that [the defendant’s] stated

reason for terminating her is not the true reason and is simply a pretext for unlawful retaliation.”

Bryson v. Regis Corp., 498 F.3d at 561, 572 (6th Cir. 2007). The plaintiff must always

“produc[e] sufficient evidence from which the jury could reasonably reject [the defendant’s]

explanation and infer that the defendant [ ] intentionally discriminated against him.” Seeger,

681 F.3d at 285 (internal citations omitted). Travers has not cleared this hurdle. Travers seeks to

show pretext with the following evidence: (1) the email attachment drafted by Haynes stating

that “The decision to terminate Patricia’s employment is supported by local HR. Specifically,

Patricia violated the attendance policy;” (2) Gibson-Harris’s comment to Travers at her

termination meeting that “you’ve missed a lot of work” and “we need you here;” (3) the

argument that Travers’s offering instant rebates did not cause Verizon to lose money or garner

additional benefit for Travers; and (4) the argument that Travers “adamantly denied” that she

proactively offered an instant rebate and submitted the order as an online price match on April 21

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and thus, she argues, the progressive discipline policy was not violated. Appellant’s Br. at 31–

34; R. 29-7, at 18, PageID # 812; R. 29-10, at 8, PageID # 865.

“A plaintiff can show that an employer’s purported reason for taking an adverse

employment action is pretextual if it (1) ‘had no basis in fact,’ (2) ‘did not actually motivate the

employer’s action,’ or (3) was ‘insufficient to motivate the employer’s action.’” E.E.O.C. v. Ford

Motor Co., 752 F.3d 634, 649 (6th Cir. 2014) (quoting Chen v. Dow Chem. Co., 580 F.3d 394,

400 (6th Cir.2009)); see also Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419,

431 (6th Cir. 2014); Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir. 2012); Seeger,

681 F.3d at 285. Travers does not specify under which method she seeks to demonstrate pretext,

but because she takes issue with the factual basis of Verizon’s reason and she suggests that

attendance, not integrity, motivated her termination, her arguments appear to fall within the first

and second theories of asserting pretext. However, Travers’s arguments fail under both theories.

With respect to the first method of showing pretext—no basis in fact—Travers

“adamantly denied she proactively offered an instant rebate [on the April 21, 2010 call] that gave

rise to her termination.” Appellant’s Br. at 32. When the factual basis of the employer’s

proffered reason is challenged, the “honest belief rule” applies, and “[i]n deciding whether an

employer reasonably relied on the particularized facts then before it . . . the key inquiry is

whether the employer made a reasonably informed and considered decision before taking an

adverse employment action.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998).

Verizon documented Travers’s recurring practice of waiving rebates and improperly denoting

them as price-match requests. Accordingly, the district court was correct in concluding that “the

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decision-makers honestly believed that [Travers] had continued to waive mail-in rebates after

being repeatedly disciplined for it.” R. 60, at 7, PageID # 1386. It follows that Travers has not

shown pretext based on a lack of factual basis.

Travers is also not able to establish pretext under the second method, which presumes the

factual basis of the purported reason is true and that such grounds could motivate dismissal. See

Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012) (quoting Manzer v.

Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). With these

presumptions in place, Travers must then “attack[] the employer’s explanation ‘by showing

circumstances which tend to prove an illegal motivation was more likely than that offered by the

defendant.’” Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000) (quoting Manzer,

29 F.3d at 1084). The detailed account of Travers’s repeated conduct violations that is outlined

in the termination request form compiled by Pratt, the performance supervisor for Travers’s

department, is strong evidence that the history of integrity violations was both the actual reason

and a sufficient reason for Travers’s termination. This account is corroborated by testimony

from Verizon supervisors as well as the paper trail documenting Travers’s disciplinary warnings

throughout her time at Verizon. This lengthy documentation overshadows the one line of text

contained in a standardized form and written by a human resources consultant, who was neither a

decision maker nor a supervisor at Verizon and who was not involved in the decision to

terminate Travers. Most importantly, the regional director of human resources approved the

decision to terminate Travers based solely on the termination request form drafted by Pratt. R.

56-2, at 1–2, PageID # 1363–64. Moreover, Haynes’s statement is not wholly inaccurate—

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Travers did violate the attendance policy; in this way, Travers’s record of absenteeism makes

Haynes’s claim that the note was a mistake even more plausible. In addition, when asked in her

deposition if she had evidence to support her claim that she was fired because she took leave,

Travers replied: “There were no recordings of it. I have no evidence.” R. 29-1, at 54, PageID #

606.

The paper trail of disciplinary action also is not really contradicted by the alleged

statement by Gibson-Harris. Even construing the record in the light most favorable to Travers, it

is unclear whether this comment pertained to Travers’s FMLA leave or her record of attendance

violations in 2008, 2009, and in to 2010. Although nowhere else are her attendance violations

mentioned as reasons for termination, the fact that this was another area in which she had been

disciplined minimizes the likelihood that such a statement would be in reference to FMLA leave.

Therefore, this evidence does not show that Verizon’s reason for termination was not the true

reason.

Lastly, whether or not Verizon suffered or Travers benefitted from her code of conduct

violation does not change whether or not such violations warranted termination. After twice

receiving a final written warning for code of conduct violations, it was a reasonable next step for

Verizon management to initiate termination review, as is customary under its progressive

disciplinary policy. On this record, no reasonable jury could find that it was more likely than not

that Travers’s code of conduct violations were a pretext for an illegal motive.

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3. Travers’s ADA Discrimination Claim

Travers’s ADA discrimination claim cannot survive summary judgment because, even if

she could establish a prima facie case of discrimination, Travers has failed to demonstrate pretext

for the same reasons as for the FMLA retaliation claim. “[B]ecause a grant of summary

judgment is reviewed de novo, [we] may affirm the judgment of the district court on any grounds

supported by the record, even if they are different from those relied upon by the district court.”

Kennedy v. Superior Printing Co., 215 F.3d 650, 655 (6th Cir. 2000). Therefore, we may affirm

the district court’s grant of summary judgment on the ground of failure to show pretext, even if

the district court may have erred with respect to Travers’s prima facie case.7

For the foregoing reasons, we AFFIRM the judgment of the district court.

7 The EEOC argues that the district court erred in granting summary judgment on Travers’s ADA discrimination claim because the court addressed whether Travers was disabled, even though Verizon mentioned in a footnote of its brief that it did not dispute Travers’s prima facie case for the purposes of summary judgment. Amicus Br. at 14–18. However, “even when the district court fails to provide adequate notice to the party against whom summary judgment is granted, its judgment will be upheld unless the losing party can demonstrate prejudice.” Smith v. Perkins Bd. of Educ., 708 F.3d 821, 829 (6th Cir. 2013). Here, even if notice was inadequate on that particular point of reasoning, Travers is unable to demonstrate prejudice from the district court’s decision on the issue of whether she was disabled becuase Travers’s ADA claim would still fail at the pretext step in the McDonnell-Douglas burden-shifting analysis.

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