Pension & Benefits News Female operations supervisor unable to revive FMLA, gender discrimination claims
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Friday, October 9, 2020

Female operations supervisor unable to revive FMLA, gender discrimination claims

By Pension and Benefits Editorial Staff

A railroad operations supervisor who was terminated as part of reduction in force (RIF) could not revive her state-law gender discrimination or FMLA discrimination claims, ruled the Eighth Circuit U.S. Court of Appeals. The appeals court found that the district court correctly concluded that the employer implemented a legitimate RIF. The employer clearly had a plan to eliminate six of 16 positions and restructure its dispatch desks, and it applied objective criteria in determining that the employee was among the least qualified operations supervisors. As for her FMLA claim, the employer put forward a legitimate, nondiscriminatory reason for including her in the RIF.

Reduction in force. The employee began working as an operations supervisor at the Kansas City desk when the railroad was owned by another railroad company. After Canadian Pacific acquired that railroad in 2008, the employee continued to work at the Kansas City desk. She was the only female assigned to the Kansas City desk throughout her employment. In 2016, the employer implemented a RIF. It planned to eliminate its Missouri desk and redistribute the work to the Iowa and Kansas City desks. Under this plan, six of 16 operations supervisor positions would be eliminated.

Among the RIF criteria considered were performance management (PMP) ratings for the prior three years, efficiency test scores, two-year discipline records, 12-month attendance records, and current work status. The employee had received a 2015 PMP rating of 100. Every operations supervisor with a 2015 PMP rating of less than 100 was included in the RIF except for one. The employee also had the highest failure rate among operations supervisors on her efficiency tests. In addition, she was disciplined twice in the two-year period. The only operations supervisor with more disciplinary actions was also terminated. With regard to other criteria, such as independent worker and communication skills, the employee received a "partially achieves" rating. Every operations supervisor with this rating was terminated in the RIF.

On February 24, 2016, the employer’s RIF team met to discuss the operations supervisors’ experience and qualifications relative to territories that would be redistributed. Based on the various criteria and the employee’s lack of experience in the new territories and communications systems, she was regarded as not suitable for a larger territory. She was among six operations supervisors identified as least qualified and scheduled for termination under the RIF on April 1.

On February 5, 2016, the employee had requested time for a medical issue. Her leave request was granted and she returned to work on March 4. At the time of the RIF meeting, the employee was on FMLA leave. At least three other operations supervisors also took FMLA leave before the RIF meeting, but they were not terminated in the RIF. Before the RIF, two operations supervisors who were scheduled to be terminated in the RIF were discharged for unrelated reasons; another employee scheduled for termination resigned, and one operations supervisor who was not scheduled for termination resigned, so the employer only needed to eliminate two positions to reach its restructuring goal. The employee was terminated on March 31.

She filed suit alleging discrimination on the basis of gender and her use of FMLA leave. The district court found that she failed to show that gender was a contributing factor in her termination and also failed to establish an FMLA discrimination claim, and granted summary judgment to the employer. This appeal followed.

Sex discrimination. The employee alleged that the director of train dispatching directly discriminated against her by telling her that the Kansas City desk was no place for a woman. However, even if the statement showed discriminatory intent, it cannot be direct evidence of discrimination under the Missouri Human Rights Act (MHRA), the court pointed out, because the director was not a decisionmaker. In this case, it was undisputed that the director did not attend the RIF meeting or participate in any part of the decision regarding whom to terminate in the RIF. Because the director was not the employee’s supervisor and did not play a role in the RIF process, her statement was not direct evidence of discrimination. Moreover, the employee failed to create a genuine dispute of material fact that her gender was a contributing factor in her termination. The employer clearly had a plan to eliminate six of 16 positions and restructure its desks.

The court also rejected the employee’s contention that the process was too subjective to qualify as a legitimate RIF. The employer, in fact, considered several objective criteria. Accordingly, the appeals court held that the district court correctly concluded that the employer implemented a legitimate, nondiscriminatory RIF.

FMLA discrimination. The employee alleged that the employer discriminated against her because she used FMLA leave. In support of her claim, she relied on the employer’s decision to include her in the RIF while she was on FMLA leave. However, the appeals court first noted that the employee failed to offer any direct evidence that she was terminated in the RIF for exercising her FMLA rights. Accordingly, it analyzed her claim under the burden-shifting framework of McDonnell Douglas.

Assuming that she established a prima facie case, the appeals court agreed with the district court that, based on the record, the employer put forth a legitimate, nondiscriminatory reason for including the employee in the RIF: she was one of the least qualified operations supervisors. And the employee failed to present evidence to create a genuine dispute of fact that this stated reason was mere pretext for FMLA discrimination. Further, she failed to show that other employees had also suffered FMLA discrimination; it was undisputed that the employer retained three other operations supervisors who had also taken FMLA leave. Therefore, the district court properly granted summary judgment to the employer on her FMLA discrimination claim.

SOURCE: Button v. Dakota, Minnesota & Eastern Railroad Corp. dba Canadian Pacific Railway (CA-8), No. 19-1398, June 30, 2020.

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