Wal-Mart Employee Fired After FMLA Leave Lacks Retaliation, Bias Claims, Court Affirms

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By Kevin McGowan  

Aug. 4 — A Wal-Mart Stores Inc. employee in Wisconsin fired for alleged poor performance about five months after returning from medical leave lacks a Family and Medical Leave Act retaliation claim because she wasn't meeting the employer's legitimate job expectations when terminated, the U.S. Court of Appeals for the Seventh Circuit ruled Aug. 4.

Affirming summary judgment for Wal-Mart, the court found that Erika M. Langenbach's failure to present evidence that she was meeting the retailer's legitimate expectations for an assistant store manager precludes her from raising a triable FMLA retaliation case regarding her March 2011 termination.

Langenbach alleged Wal-Mart also violated Title VII of the 1964 Civil Rights Act by delaying her promotion and paying her less than male assistant managers.

But the court affirmed dismissal of Langenbach's sex bias claims because two proposed male comparators weren't “similarly situated” as they had prior management experience or superior educational credentials that differentiated them from Langenbach.

Wal-Mart hired Langenbach in 1998, and she subsequently was promoted in 2001 to jewelry department manager in Saukville, Wis. Langenbach began seeking promotion to assistant store manager in 2006, but Wal-Mart denied her application several times before Langenbach in 2008 became an assistant manager in West Bend, Wis.

After she was fired in 2011 for alleged failure to satisfy a performance improvement plan, Langenbach sued under Title VII and the FMLA. A federal district court in Wisconsin granted summary judgment to Wal-Mart on both counts (2013 BL 354078 (E.D. Wis. 2013)).

Fails to Make Prima Facie Cases

Langenbach contended Wal-Mart retaliated for her six-week FMLA leave for fibroid removal surgery in mid-2010 by giving her a negative performance review, assigning her to the night shift, placing her on a PIP and ultimately firing her.

Only her termination was a “materially adverse action” for FMLA retaliation purposes, and Langenbach didn't present evidence she was meeting Wal-Mart's legitimate expectations when fired, Judge Michael S. Kanne wrote.

Langenbach had received poor performance reviews as an assistant manager and previously been placed on a PIP in 2009, before she took FMLA leave, the court said.

“Langenbach cannot lead us to conclude that she was fired for retaliatory reasons without the aid of unbridled speculation,” the court said.

“Langenbach cannot lead us to conclude that she was fired for retaliatory reasons without the aid of unbridled speculation,” the court said.

Langenbach also can't establish a Title VII prima facie case of sex discrimination based either on Wal-Mart's delay in promoting her or its alleged sex discrimination in pay, the court said.

Although a “significant delay in promotion” can be an adverse action, the court said two male employees promoted more rapidly than Langenbach weren't “similarly situated” to her.

One had a “special skill” as a butcher and three years supermarket management experience when Wal-Mart made him an assistant manager heading its meat department, and the other had completed two years of college, in contrast to Langenbach's high-school education, the court said.

“We do not think, given these significant differences, that a reasonable fact-finder would find [either male employee] an adequate comparator for Langenbach,” the court said.

Langenbach's pay discrimination argument is “inextricably intertwined” with her sex bias claim regarding the delay in promotions, the court said. Since Langenbach can't show Wal-Mart delayed her promotion because of sex bias, the court said, it must likewise reject her pay discrimination claim.

Judges William J. Bauer and Diane S. Sykes joined in the decision.

James H. Kaster in Minneapolis represented Langenbach. Whyte Hirschboeck Dudek S.C. represented Wal-Mart.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/ERIKA_M_LANGENBACH_PlaintiffAppellant_v_WALMART_STORES_INC_Defend.