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Brody v. Starbucks Coffee Company: US District Court : EMPLOYMENT | PRACTICE - summary judgment dismissing FMLA claim; same position after leave; citation signals must be express & with citation

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Daniel Brody,
Plaintiff,
v. Civil No. 07-4208 (JNE/JJG)
ORDER
Starbucks Coffee Company,
Defendant.
Ruth Y. Ostrom, Esq., appeared for Plaintiff Daniel Brody.
Joseph G. Schmitt, Esq., and Mark J. Girouard, Esq., Halleland Lewis Nilan & Johnson, P.A.,
appeared for Defendant Starbucks Coffee Company.
Daniel Brody claims that his former employer, Starbucks Coffee Company,1 violated the
Family and Medical Leave Act (FMLA) by failing to provide him with notice of his rights under
the Act; disciplining him and placing him on a performance improvement plan after he returned
from FMLA leave; failing to restore him to the same position he held before his FMLA leave or
its equivalent; and terminating his employment. See 29 U.S.C. 2614(a), 2615, 2619 (2006).
The case is before the Court on Starbucks Coffees Motion for Summary Judgment. For the
reasons set forth below, the Court grants the motion.
I. BACKGROUND
Starbucks Coffee hired Brody in June 2005 as a store manager and assigned him to its
store in Brooklyn Center, Minnesota. As a store manager, he reported to a district manager.
From January 2006 to April 2007, Katrina Binns was the district manager to whom Brody
1 During this litigation, the parties referred to the defendant as either Starbucks Coffee
Company or Starbucks Corporation, d/b/a Starbucks Coffee Company. The Court refers to
the defendant as Starbucks Coffee Company, the name that appears in the Amended Complaint.
2
reported. Pursuant to Starbucks Coffees general practice of reviewing employees near the
midpoint of fiscal year, Binns reviewed Brody in April 2006. In that review, which did not
require Binns to give numerical ratings, Binns praised certain aspects of Brodys performance
and criticized others. Near the end of Starbucks Coffees fiscal year, Binns gave another
performance review to Brody in September 2006. That review required Binns to numerically
rate Brody in several categories on a three-point scale. The ratings indicated that Brody met
Starbucks Coffees expectations in each of four key responsibilities, consistently exceeded its
expectations in three of five core competencies, met its expectations in one of the five core
competencies, and needed improvement in the remaining core competency. Overall, Binns
indicated that Brody was meeting Starbucks Coffees expectations. Like the April 2006 review,
the September 2006 review included a mix of positive and negative comments about Brodys
performance.
A few months later, in January 2007, Binns had a coaching conversation with Brody.
In her documentation of the conversation, Binns described deficiencies in Brodys performance:2
This document constitutes a coaching conversation for a performance
issue. Over the past several weeks/months, [Brody] has demonstrated poor
decision making and failure to meet expectations previously agreed upon related
to both his partners and his business . . . . These decisions, as well as the impact
on his store, business, and personal development, have been discussed with
[Brody] by his [district manager] prior to this documentation. Coaching has been
provided to aid [Brody] in his development and to help change behavior, although
[he] has yet to consistently incorporate this coaching/feedback. This
documentation is to ensure that [Brody] understands the communication that was
provided to him and understands where his opportunities lie. [His] performance
will continue to be monitored and improved performance will be
recognized/reinforced. Similarly, further demonstration of poor decision making
or failure to meet agreed upon expectations will result in corrective action.
Binns continued by listing examples of Brodys deficiencies and issuing an action plan to
improve his performance over the next thirty to sixty days.
2 Starbucks Coffee refers to its employees as partners.
3
In March 2007, Binns again reviewed Brodys performance. She did not numerically rate
his performance; her comments identified several concerns. With regard to Leadership, one of
the four key responsibilities, Binns noted that Brody had displayed a customer comes first
attitude by role modeling his expectations in the areas of customer care for his partners and
setting expectations for them surrounding customer care and legendary customer service.
Nevertheless, Brody was challenged over the last 6 months to consistently hold his partners
accountable for the expectations he set for them in this area, resulting in an inconsistent customer
experience and inconsistent snapshot results. Although Brody consistently placed importance
on customer focus, he also occasionally engaged in us-vs-them mentality discussions with his
partners. He delegated tasks appropriate to each partners role, but his delegation often
resulted in partners failing to successfully complete the task, either as a result of unclear
direction, little follow-up or no end accountability. Brody continued to communicate with
store partners and peers in a way that supported and promoted the Starbucks culture, values and
mission statement, effectively recruiting external talent into the company and developing interest
in career advancement with his store partners. He occasionally struggled to understand and/or
support changes in direction from the company . . . and occasionally expressed these concerns in
an inappropriate manner or setting.
With regard to planning and execution, another key responsibility, Binns wrote, Over
the past six months, [Brody] continued to work on developing and sustaining a store system for
posting weekly and monthly communications in clear view for all partners in order to help
ensure partner awareness. However, Brody was challenged to provide the follow-up necessary
to ensure that information was reaching all store partners in a timely and effective manner,
which prevented him from holding his shift team accountable for the agreed upon responsibility
4
of cascading information to the team, resulting in a system that lacked sustainability and longterm
effectiveness.
As to business requirements, the third key responsibility, Binns noted that Brody
regularly utilized [management] information tools and reports to identify store trends and issues
and to help provide direction for his store team. However, Brody did not consistently address
store trends and issues in a timely manner . . . which resulted in a negative impact on his [profit
and loss] and affected overall store profitability. Binns also stated that Brody had not
demonstrated a consistency in utilizing external resources or support services to help him
effectively manage and drive the business.
Of Brody and the fourth key responsibility, partner development and team building,
Binns stated that Brodys efforts did not consistently pay off in direct or measurable ways
within the store. Delay and hesitancy by Brody in documenting his conversations resulted in
partners not taking him seriously or working to implement the feedback he provided them, which
in turn led to an environment where underperforming partners remained in the store significantly
longer than desired. Brody need[ed] to find a way to integrate his leadership style with the
tools and resources that he is expected to utilize as a store manager in managing partner
performance and providing clear, specific and timely feedback and coaching to partners. He did
use existing tools to provide timely, clear and concise feedback to his partners, both to coach
them on their opportunities and to celebrate their successes in a way that is meaningful and
actionable for them.
As to developing for the future, one of the five core competencies, Binns stated that
Brody had worked to continuously foster a learning environment in the store where partner
development is a priority. He understood the need to constantly recruit and develop legendary
5
partners and worked to maintain this focus despite competing priorities. Reiterating concerns
expressed in connection with partner development and team building, Binns wrote that Brodys
ongoing opportunity in this area is challenging himself to have timely, candid coaching
conversations with his partners and demonstrating an understanding and willingness to document
his conversations with them in order to effectively address performance issues and further help
them develop.
Turning to achieving measurable results, another core competency, Binns wrote that
[t]his continues to be one of [Brodys] key areas of opportunity. Over the past 6 months,
[Brody] has struggled to effectively prioritize and handle his competing priorities in a way that
has enabled him to drive consistent measurable results in the store in the key areas of focus. He
struggled . . . to achieve district action plan goals and to complete goals that he and Binns had
set.
With regard to personal learning, the third core competency, Binns stated, While
[Brody] continued to pioneer his own development and work on developing himself on personal
time through reading and a mentorship program, he continued to struggle in accepting and
implementing feedback about his performance. As to planning and organizing, the fourth core
competency, Binns encouraged Brody to focus on developing a system that will enable him to
meet his deadlines and responsibilities, as well as providing him a way of tracking and ensuring
complete and timely communication at all levels. Finally, of Brody and the fifth core
competency, leadership courage, Binns wrote that Brody had consistently demonstrated his
ability and desire to think outside the box, taking numerous calculated risks to drive his business
forward, and demonstrated a willingness to appropriately challenge the status quo and be a
champion for an idea that was new or different. In addition, for a period of time [Brody]
6
appropriately challenged his peers and district manager, but when faced with resistance from
his district manager and given feedback based on prior conversations, [he] chose at times to
outwardly agree with his district manager rather than voicing differing opinions. Binns
concluded that Brody needed to recognize that voicing a differing opinion will not hinder his
development, yet at the same time understand[] that after complete discussion and review of the
information, he may be asked to be aligned with a direction he would not personally choose and
may not agree with.
In the spring of 2007, Brody told Binns that he intended to take a leave to have back
surgery. Brody had previously told Binns and his regional manager, Eric Wyatt, that he had
back problems. On April 16, 2007, Brody contacted Starbucks Coffees Benefits Center and
inquired about FMLA leave. In a talent assessment dated April 17, 2007, Binns gave Brody a
risk assessment of yellow. Later that month, Binns moved, and Guy Booth became Brodys
district manager. In May 2007, Brody informed Booth of his need for a three-month medical
leave for back surgery. According to Brody, Booth responded that the amount of time requested
was too long and unfair to other employees at the Brooklyn Center store. Starbucks Coffee
nevertheless approved Brodys request for medical leave from June 2007 to August 2007, and it
approved his request to extend his leave to September 2007. While Brody was on leave,
Samantha Gillen replaced Booth as district manager.
One week before Brody began his leave, Starbucks Coffee promoted Francina Janssen,
who had been an assistant manager at a different location, to store manager, assigned her to the
Brooklyn Center store, and directed her to work with Brody to familiarize herself with the
Brooklyn Center store. During that week and after Brody took leave, Janssen had concerns
about Brodys management. She reported her concerns to Wyatt, and Starbucks Coffee
7
investigated Brodys management of the Brooklyn Center store. According to the investigation,
Brody improperly worked from home, occasionally arrived late, scheduled himself for too much
non-coverage time,3 improperly prepared schedules, shared codes to a scheduling system with
personnel who were not authorized to have the codes, and hired an individual in violation of
Starbucks Coffees policy regarding employment of relatives of current employees. In a talent
assessment for July to September 2007, Gillen gave Brody a higher risk assessment of red.
On September 15, 2007, Brody returned from leave and met with Wyatt. At that
meeting, Brody first learned of Starbucks Coffees investigation of him. Brody denied some of
the allegations made against him, such as sharing codes to the scheduling system with
unauthorized personnel, and explained that he had hired a relative of a current employee with his
district managers consent. Wyatt closed the meeting by stating that he would talk to Brody on
the following Monday.
On September 17, 2007, Wyatt and Gregory Sende, the district manager of a district that
included a Starbucks Coffee store in Maple Grove, Minnesota, met with Brody. Wyatt gave
Brody a final corrective action that stated in part:
[Brody] had received a previous written corrective action and a 60 day
Action Plan in Q2 regarding his performance in Communications, Decision
Making and Standard Operating Procedures from . . . Binns. [Brody] has been
inconsistent in his overall performance as a store manager regarding several
derailing behaviors including but not limited to ineffective & inconsistent
communications, inappropriate decisions and Starbucks Coffee Operating
procedures. This will serve as a final written corrective action for [Brody].
Failure to successfully meet his Action Plan or any further violations of company
policy will result in [Brodys] separation from the organization.
The documented coaching conversation and action plan given to Brody by Binns in January 2007
are the previous written corrective action and action plan to which Wyatt referred. Wyatt
3 Coverage time refers to time spent on the sales floor of a store; non-coverage time is time
spent off the sales floor.
8
assigned Brody as a store manager to the Starbucks Coffee store in Maple Grove, whose
management staff included a store manager, Scott Walsh, and an assistant store manager.
One week later, Sende delivered a ninety-day performance improvement plan to Brody
effective as of September 17. The plan called for written documentation of Brodys progress at
the end of thirty and sixty days and an overall review at the plans expiration. The plan stated
that failure to satisfy its expectations would result in Brodys termination. Less than three weeks
after Sende issued the performance improvement plan, Brody brought this action.
On November 5, 2007, Sende gave Brody the first progress report. Sendes report
indicated that Brody had not met many of the expectations set forth in the plan. On November
27, 2007, Sende gave Brody the second progress report. Sendes report indicated that Brody had
met some of the expectations; several were not met. On January 2, 2008, the date of the overall
review, Sende indicated that Brody had not met the expectations of the performance
improvement plan. Starbucks Coffee terminated Brodys employment that day.
II. DISCUSSION
Summary judgment is proper if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the
initial responsibility of informing the district court of the basis for its motion, and must identify
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its
burden, the party opposing the motion must respond by submitting evidentiary materials that set
out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); see Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether
9
summary judgment is appropriate, a court must look at the record and any inferences to be drawn
from it in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
There are two types of claims under the FMLA: (1) interference or (a)(1) claims in
which the employee alleges that an employer denied or interfered with his substantive rights
under the FMLA and (2) retaliation or (a)(2) claims in which the employee alleges that the
employer discriminated against him for exercising his FMLA rights. Stallings v. Hussmann
Corp., 447 F.3d 1041, 1050 (8th Cir. 2006) (citing 29 U.S.C. 2615(a)(1)-(2)); see Bacon v.
Hennepin County Med. Ctr., 550 F.3d 711, 714 n.3 (8th Cir. 2008). Here, Brody raises both
interference and retaliation claims.
A. Interference
In an interference claim, an employee need only show that he was entitled to the benefit
denied. Stallings, 447 F.3d at 1050. An employee can prevail under an interference theory if
he was denied substantive rights under the FMLA for a reason connected with his FMLA leave.
Id. However, an employer is not strictly liable for interfering with an employees FMLA rights.
Id. at 1050-51; Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 977-80 (8th Cir.
2005).4 As long as an employer can show a lawful reason, i.e., a reason unrelated to an
employees exercise of FMLA rights, for not restoring an employee on FMLA leave to her
4 In his memorandum in opposition to Starbucks Coffees motion, Brody incorrectly
asserts that employers are strictly liable for interfering with an employees FMLA rights.
Before Brody brought this action, the Eighth Circuit had rejected this very proposition in
Stallings and Throneberry. Citing Throneberry, this Court has stated that the FMLA does not
make employers strictly liable for interfering with employees FMLA rights. Bacon v.
Hennepin County Med. Ctr., Civ. No. 06-2359, 2007 WL 4373104, at *11 (D. Minn. Dec. 11,
2007), affd, 550 F.3d 711 (8th Cir. 2008). Brodys counsel represented the plaintiff in Bacon.
10
position, the employer will be justified to interfere with an employees FMLA leave rights.
Throneberry, 403 F.3d at 979.
Upon return from FMLA leave, an employee is entitled to be restored to the same
position held prior to the beginning of the leave, or its equivalent, in terms of benefits, pay and
other terms and conditions. Bloom v. Metro Heart Group of St. Louis, Inc., 440 F.3d 1025,
1029 (8th Cir. 2006) (citing 29 U.S.C. 2614(a)(1)); see Woods v. DaimlerChrysler Corp., 409
F.3d 984, 991 (8th Cir. 2005) (Employees who show they qualify for FMLA leave are entitled
to be restored to their positions or the equivalent upon returning to work.); 29 C.F.R. 825.214
(2008) (stating that an employee is entitled to be returned to the same position the employee
held when leave commenced, or to an equivalent position with equivalent benefits, pay, and
other terms and conditions of employment and that employee is entitled to this reinstatement
even if the employee has been replaced or his or her position has been restructured to
accommodate the employees absence). An equivalent position is one that is virtually identical
to the employees former position in terms of pay, benefits and working conditions, including
privileges, perquisites and status. It must involve the same or substantially similar duties and
responsibilities, which must entail substantially equivalent skill, effort, responsibility, and
authority. 29 C.F.R. 825.215(a) (2008); see also id. 825.215(e) (An equivalent position
must have substantially similar duties, conditions, responsibilities, privileges and status as the
employees original position.).
Brody claims that Starbucks Coffee interfered with his FMLA rights by failing to restore
him to the same position he held before his FMLA leave or its equivalent. Instead of returning
him to its store in Brooklyn Center, Starbucks Coffee allegedly demoted Brody by assigning him
to its store in Maple Grove.
11
Location
To the extent Brodys interference claim rests on the location of the store where
Starbucks Coffee placed him upon his return from FMLA leave, the claim has no merit. The
employee must be reinstated to the same or a geographically proximate worksite (i.e., one that
does not involve a significant increase in commuting time or distance) from where the employee
had previously been employed. Id. 825.215(e)(1). It is undisputed that Brodys assignment to
the Maple Grove store reduced the time and distance of his commute. In his memorandum in
opposition to Starbucks Coffees motion, Brody does not address his shorter commute. Instead,
he asserts that there was no reason that [his] replacement . . . could not [have] been assigned to
the Brooklyn Center store on a temporary basis. Brodys argument ignores that the FMLA does
not require an employer to reinstate an employee upon return from leave to the same location
where the employee worked before the leave, see id., and that [f]ederal courts do not sit as a
super-personnel department that reexamines an entitys business decisions, e.g., Johnson v.
Ready Mixed Concrete Co., 424 F.3d 806, 812 (8th Cir. 2005) (quoting Harvey v. Anheuser-
Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994)). Starbucks Coffee did not interfere with Brodys
FMLA rights by assigning him to its store in Maple Grove when he returned from leave.
Position
Brody claims that Starbucks Coffee interfered with his FMLA rights by failing to restore
him to the same position that he held before his leave or its equivalent. It is undisputed that
Brody retained the same title, pay, and eligibility for bonuses upon his return from leave.
Nevertheless, restoration of salary, title, and benefits is not necessarily restoration to the same
position or its equivalent; the duties and functions of the job must be considered. Cooper v. Olin
Corp., 246 F.3d 1083, 1091 (8th Cir. 2001).
12
In this case, the record reveals that deficiencies in Brodys performance led Starbucks
Coffee to issue him a final corrective action and place him on a ninety-day performance
improvement plan upon his return from leave. Notwithstanding his performance issues,
Starbucks Coffee assigned Brody as a store manager to its Maple Grove store, whose revenue
was more than twice that of the Brooklyn Center and whose staff was larger than that of the
Brooklyn Center store. A few days after Brody returned from leave, Sende, Walsh, and Brody
met to decide on which responsibilities of managing the Maple Grove store Walsh and Brody
would focus. Walshs focus included labor management, RPO Orders, training, and
reviews. Brodys focus included deployment, food operations, duty roster book, and
QASA. As part of his focus on deployment, Brody was responsible for observing employees
performance, assessing their efficiency, and communicating effective deployment practices to
them. He was responsible for all food operations at the Maple Grove store. QASA refers to
Quality Assurance Store Assessment, which tracks a stores cleanliness. He was responsible for
completing monthly QASA assessments, communicating the results to employees, and
formulating plans to redress any deficiencies. Brodys performance improvement plan required
him to communicate daily, weekly, monthly, and quarterly goals to employees. He was
specifically assigned several employees with whom he was required to have bi-weekly meetings
to discuss whether the employees were meeting expectations. During Brodys tenure at the
Maple Grove store, the store received an award. Although the store received the award based on
its performance before Brody worked there, a ceremony and plaque credited both Brody and
Walsh as the store managers of the Maple Grove store.
Brody contends that Starbucks essentially demoted him by assigning him to its Maple
Grove store, which already had a store manager. Citing his deposition testimony and his
13
declaration, he asserts that he had less responsibility and authority at the Maple Grove store
because he did not have the authority to coach/discipline employees or give performance
reviews. With regard to performance reviews, Brody does not dispute that he, Walsh, and
Sende agreed that Walsh would focus on employee reviews. Cf. 29 C.F.R. 825.215(e)(4)
(FMLA does not prohibit an employer from accommodating an employees request to be
restored to a different shift, schedule, or position which better suits the employees personal
needs on return from leave, or to offer a promotion to a better position.). Moreover, their
decision appears to reflect the schedule of reviews at Starbucks Coffee. Starbucks Coffee
usually conducted reviews in April or May, near the midpoint of its fiscal year, and in September
or October, near the end of its fiscal year. Having returned from leave in mid-September 2007,
Brody would have had to conduct performance reviews of employees at a store where he had not
previously worked upon or shortly after his return from leave. Having worked at the Maple
Grove store, Walsh was familiar with the employees there. With regard to disciplining
employees, Brodys conclusory, self-serving assertion does not raise a genuine issue of material
fact in light of his acknowledgement at his deposition that he could, in fact, talk to employees
who were doing something wrong; his recognition at the Maple Grove store as a store manager;
the communication with employees required of him by his responsibilities at the Maple Grove
store; and repeated admonishments during the performance improvement plan to communicate
with his employees regarding expectations and their performance. See Smith v. Intl Paper Co.,
523 F.3d 845, 848 (8th Cir. 2008) (stating that plaintiff may not raise genuine issue of material
fact by merely pointing to unsupported self-serving allegations).
Brody also contends that he had no involvement in management decisions at the Maple
Grove store. In support, he cites his declaration where he states that Sende never included
14
[Brody] in . . . the monthly MBDD (Manager Business Development Day) meetings [Sende]
held with . . . Walsh at the Maple Grove store. Brody describes the meetings as occasions for a
store manager and district manager to discuss all store operations and to make decisions
regarding staffing, sales goals, and food orders. Starbucks Coffee notes that Brody did not
mention at his deposition his alleged exclusion from MBDDs by Sende and that Brody thought
that MBDDs occurred quarterly.5 Moreover, Brody had substantial involvement in the
management decisions at the Maple Grove store. For instance, Brody was responsible for all
food operations. On this record, Brodys conclusory, self-serving assertion that he was excluded
from the management decisions at the Maple Grove store does not raise a genuine issue of
material fact. See id.
The Court turns to the remaining points raised by Brody to support his contention that he
was not reinstated to the same or equivalent position. First, he claims that he did not receive his
own code to the Maple Grove stores alarm; he used someone elses alarm code. The alleged
failure to give Brody his own code does not raise a genuine issue of material fact as to whether
Starbucks Coffee failed to properly reinstate Brody. See 29 C.F.R. 825.215(f) (The
requirement that an employee be restored to the same or equivalent job with the same or
equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis,
intangible, or unmeasurable aspects of the job.).
Next, Brody claims that he was not able to set his own schedule or the schedules of the
Maple Grove stores employees. Brody does not claim that Starbucks Coffee failed to return him
to an equivalent work schedule, see id. 825.215(e)(2) (The employee is ordinarily entitled to
return to the same shift or the same or an equivalent work schedule.), and he fails to
5 The Court notes but draws no conclusion from the fact, not mentioned by either party,
that MBDD appears in Brodys daily planner on October 2, 2007.
15
acknowledge the presence of another store manager at the Maple Grove store with whom Brody
had to coordinate schedules and whose focus included, pursuant to an agreement with Brody,
labor management. Thus, he has not raised a genuine issue of material fact as to whether his
position at the Maple Grove store was equivalent.
Third, Brody claims that his assignment to the Maple Grove store interrupted his ability
to go forward and develop, a/k/a be promoted. Brody has not offered any evidence to support
his belief that his assignment to the Maple Grove store adversely affected his development at
Starbucks Coffee. Brodys unsupported, conclusory assertion that his assignment to the Maple
Grove store interfered with his promotion prospects does not raise a genuine issue of material
fact as to whether Starbucks Coffee properly reinstated him.
Finally, Brody maintains that Starbucks Coffee reinstated Brody knowing that he would
not be employed after the expiration of his performance improvement plan.6 According to
Brody, Wyatt stated the day before Brody started to work at the Maple Grove store that Brody
would work there through the holidays, a time that coincides with the expiration of his
performance improvement plan. An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been continuously employed
during the FMLA leave period. Id. 825.216(a). In the months before Brodys leave,
Starbucks Coffee had concerns about Brodys performance. During his leave, Starbucks Coffee
discovered additional cause for concern about Brodys performance and placed him on the
6 In support of this argument, Brody cites the dissent of an unpublished decision issued by
a circuit other than the Eighth Circuit, but his memorandum does not disclose that he cites the
dissent. At the motion hearing, Brodys counsel admitted that she was very aware that the
memorandum had cited the dissent. That the memorandum cited the dissent was clearly
disclosed, she claimed, because Brodys motion papers included a copy of the case. The Court
expressly disapproves of this practice. An appropriate parenthetical must appear whenever a
case is cited for a proposition other than the holding of a majority of the court. Cf. Bacon, 2007
WL 4373104, at *13 n.17; Minn. R. Prof. Cond. 3.3.
16
performance improvement plan after he returned from leave. There is no evidence that
Starbucks Coffee presumed Brodys failure to successfully complete the performance
improvement plan. Wyatts alleged statement reveals that Starbucks Coffee would make a
decision about Brodys future at Starbucks Coffee upon the expiration of the performance
improvement plan. Brodys speculation to the contrary does not raise a genuine issue of material
fact.
In short, the record, viewed in the light most favorable to Brody, reveals that Starbucks
Coffee did not interfere with Brodys FMLA rights by assigning him to the Maple Grove store as
a store manager. The Court grants Starbucks Coffees motion insofar as it relates to Brodys
interference claim based on the position he held after his return from leave.
Notice
Brody claims that Starbucks Coffee interfered with his FMLA rights by failing to give
him notice of those rights. Citing evidence demonstrating that Starbucks Coffee gave Brody
notice of his FMLA rights, Starbucks Coffee moves for summary judgment on this claim. In a
one-sentence footnote in his memorandum in opposition to Starbucks Coffees motion, Brody
states that he voluntarily dismisses this claim. The Court understands Brodys response to
concede that summary judgment on this claim in favor of Starbucks Coffee is appropriate.7 The
Court grants Starbucks Coffees motion accordingly.
7 Brody did not cite Rule 41(a)(2) of the Federal Rules of Civil Procedure, and he did not
address the factors that govern voluntary dismissals. See Cahalan v. Rohan, 423 F.3d 815, 818
(8th Cir. 2005); Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998).
17
B. Retaliation
Final corrective action, performance improvement plan, and termination
Brody claims that Starbucks Coffee retaliated against him for exercising his FMLA rights
by issuing him a final corrective action and placing him on a performance improvement plan
upon his return from leave and terminating his employment. The parties agree that Brodys
retaliation claims should be addressed under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Phillips v. Mathews, 547 F.3d 905, 912 (8th
Cir. 2008). Brody must first establish a prima facie case of retaliation. See id. To establish a
prima facie case of retaliation, Brody must demonstrate that he exercised rights afforded by the
FMLA, that he experienced an adverse employment action, and that there is a causal connection
between the exercise of his FMLA rights and the adverse employment action. See id. If Brody
establishes a prima facie case, then Starbucks Coffee must come forward with evidence of a
legitimate, nondiscriminatory reason for the adverse action. See id. If Starbucks Coffee does
so, then Brody must come forward with evidence that Starbucks Coffees proffered reason is
pretext for retaliation. See Smith v. Allen Health Sys., 302 F.3d 827, 833 (8th Cir. 2002).
Starbucks Coffee contends that Brody cannot demonstrate a causal connection between
his exercise of FMLA rights and the alleged adverse actions. Brody responds that Starbucks
Coffee issued a final corrective action and placed him on a performance improvement plan
immediately after his return from leave. Due to the close temporal proximity, Brody contends
that he established a prima facie case. For present purposes, the Court assumes that Brody
established a prima facie case. Cf. Phillips, 547 F.3d at 912 n.4.
Starbucks Coffee explains that it issued the final corrective action and placed Brody on
the performance improvement plan because Starbucks Coffee had concerns about his
18
performance before his leave, had placed him on an action plan in January 2007, and discovered
further cause for concern about his performance during his leave. Brody attempts to demonstrate
that the goals and tasks in the performance improvement plan were not reasonable because he
did not have sufficient time to complete them. According to Brody, Sende testified that the goals
and tasks required eight to ten hours per week of non-coverage time, and Brodys schedule at the
Maple Grove store never included that amount of non-coverage time. Notwithstanding Brodys
assertions, Sende testified that the goals and tasks required eight to ten hours per week. Sende
did not testify that all of that time had to be non-coverage. In addition, Brodys daily planner for
October 2007 reveals that he had 14.25 hours of non-coverage time the week of October 1; 8.5
hours the week of October 8; 5.5 hours the week of October 15; and 8.5 hours the week of
October 22. With regard to Brodys attempt to demonstrate that Starbucks Coffees proffered
reasons are pretext for retaliation because the goals and tasks of the performance improvement
plan were not reasonable, the record does not support his assertions.
Brody next argues that Starbucks Coffees proffered reasons are pretext for retaliation
because Starbucks disregarded its progressive disciplinary policy. According to Brody, Binnss
documented coaching conversation was the first step in Starbucks Coffees policy. Corrective
action should have followed it, followed by final corrective action. Because Starbucks Coffee
issued a final corrective action upon his return from leave, Brody argues, Starbucks Coffee
skipped a step in its progressive disciplinary policy.
Starbucks Coffee responds that its disciplinary policy does not mandate progressive
discipline:
Corrective action may take the form of a verbal warning, a written
warning, demotion, suspension or termination from employment. The form of
corrective action taken will depend on the seriousness of the situation and the
surrounding circumstances. . . . There is no guarantee that a partner will receive
19
a minimum number of warnings prior to termination of employment or that
corrective action will occur in any set manner or order.
(Emphasis added.) Thus, Starbucks Coffees disciplinary policy does not support Brodys
contention that Starbucks Coffee deviated from it. Moreover, even if Starbucks Coffee deviated
from a progressive disciplinary policy, Brody has not offered any evidence that Starbucks Coffee
departed from the policy because of his exercise of FMLA rights. Brody therefore has not raised
a genuine issue of material fact as to whether Starbucks Coffees proffered reasons for issuing
the final corrective action and placing him on a performance improvement plan were pretext for
retaliation. See Richey v. City of Independence, 540 F.3d 779, 786 (8th Cir. 2008) (stating that
employer may disregard its personnel policies as long as it does not unlawfully discriminate in
doing so; disregard of personnel policies, standing alone, is not evidence of discrimination);
Carraher v. Target Corp., 503 F.3d 714, 719 (8th Cir. 2007) (Because there is no evidence that
Target did not follow its policy because of Carrahers age, its alleged failure to follow policy
does not give rise to an inference of age discrimination.); Haas v. Kelly Servs., Inc., 409 F.3d
1030, 1036 (8th Cir. 2005) (stating that employer can choose how to run its business, including
not to follow its own policies, as long as it does not unlawfully discriminate in doing so); Allen
Health Sys., 302 F.3d at 835 ([S]ince Smith has pointed to no other employees who were treated
differently under the progressive discipline policy, Allens failure to give written warning does
not tend to prove that the reason given for her firing was pretextual.); cf. Bell v. Conopco, Inc.,
186 F.3d 1099, 1102 (8th Cir. 1999) (holding genuine issue of material fact existed on each
element of racial discrimination and retaliation claims based, in part, on evidence from which
factfinder could infer plaintiffs supervisor had discriminatory motive for discharging and failed
to comply with progressive disciplinary policy). The Court therefore grants Starbucks Coffees
20
motion with respect to Brodys claim that Starbucks Coffee retaliated against him by issuing a
final corrective action and placing him on a performance improvement plan.
With regard to Brodys termination, Starbucks Coffee asserts that it terminated him
because he failed to successfully complete his performance improvement plan. Brody repeats his
assertion, addressed above, that he did not have enough time to complete the goals and tasks in
the performance improvement plan. For the reasons set forth above, Brody failed to raise a
genuine issue of material fact as to whether Starbucks Coffees proffered reason for his
termination is pretext for retaliation. Accordingly, the Court grants Starbucks Coffees motion
with respect to Brodys claim that Starbucks Coffee retaliated against him by terminating his
employment.
Maple Grove
As an alternative to his interference claim, Brody claims that Starbucks Coffee retaliated
against him by placing him in the Maple Grove store. His claim regarding his placement upon
his return from leave is properly analyzed as an interference claim. Cf. Stallings, 447 F.3d at
1051 (Confusion often arises as to whether an employees FMLA claim is really about
interference with his substantive rights, not discrimination or retaliation. (quoting Kauffman v.
Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005))). Even if the claim is appropriately
addressed as a retaliation claim, it fails because Brodys placement in the Maple Grove store was
not an adverse employment action.
21
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Starbucks Coffees Motion for Summary Judgment [Docket No. 17] is
GRANTED.
2. This case is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 26, 2009
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
 

 
 
 

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