Opinion
Civil Action No: 03-3483 Section: "R" (5).
May 16, 2005
ORDER AND REASONS
The defendant, Stolthaven New Olreans, L.L.C., moves the Court for summary judgment. The plaintiff, Shelly Alfonso Ferro, has not responded to the motion. For the following reasons, the Court GRANTS the motion.
The Court relies on the Stolthaven's presentation of the facts, except where the record reveals otherwise, because Ferro has not responded to the motion. See R.L. Carpenter v. Gulf States Mfrs., Inc., 764 F. Supp. 427, 429 (N.D. Miss. 1991).
On February 28, 2001, Shelly Alfonso Ferro began to work for Stolthaven as a temporary office assistant. (Def.'s Ex. C., Dep. of Meyers at 43; Def.'s Ex. B, Dep. of Ferro at 32-33.) On July 23, 2001, Stolthaven hired Ferro as a permanent administrative assistant. (Def.'s Ex. C, Dep. of Meyers at 49, 51.) Although Ferro worked for several managers, the vice-president and general manager of Stolthaven directly supervised her. (Def.'s Ex. B, Dep of Ferro at 42-47.) On June 9, 2003, Ferro took leave from Stolthaven for health problems that stemmed from complications associated with a miscarriage. ( Id. at 53-61.) Although Ferro was eligible for leave under the Family and Medical Leave Act, Stolthaven placed Ferro on short-term disability leave on June 18, 2003. (Def.'s Ex. A. Aff. of Meyers at ¶ 7.) Ferro received her full salary and benefits while she was on short-term disability. ( Id.) Ferro did not return to work before Stolthaven terminated her on July 18, 2003.
Shortly after Ferro went on leave, Stolthaven discovered that Ferro made several unauthorized charges to Stolthaven accounts when invoices arrived in the mail. ( Id. at ¶ 9.) These invoices were forwarded to Gretchen Meyers, human resources administrator, for approval. The invoices showed that in February of 2003, Ferro purchased one dozen carnations on Stolthaven's account without authorization. ( Id. at ¶ 10.) In May of 2003, Ferro purchased a tire and charged it to Stolthaven's account without authorization. ( Id. at ¶ 11.) Finally, Ferro purchased a shirt on Stolthaven's account. (Def. Ex. C, Dep. of Meyers at 189-90.) Again, she did not receive authorization for the purchase. ( Id. at 190-91.)
In addition to the unauthorized purchases, Ferro requested and received reimbursement for a company luncheon at a sandwich shop. ( Id. at ¶ 12.) The sandwich shop later informed Stolthaven that its balance from that luncheon was as yet unpaid. ( Id.) Meyers concluded that Ferro never paid the bill and pocketed the money instead. ( Id.) On July 7, 2003, Meyers sent a letter to Ferro demanding repayment for the luncheon and for the unauthorized purchases. ( Id. at ¶ 13.) In response, Deborah Hernandez, Ferro's mother, repaid Stolthaven. ( Id. at Ex. 8.)
In the fall of 2002, Ferro agreed to become a notary for Stolthaven. (Def.'s Ex. A, Aff. of Meyers at ¶ 16.) Meyers later discovered that Ferro failed to attend the notary exam preparation course, for which Stolthaven had paid the tuition ( Id. at ¶ 16; see also id. at Ex. 10 (confirmation from Nunez Community College Evening Program Administrator that Ferro did not attend the course)) and that Ferro failed to obtain her notarial commission ( id. at ¶ 17-18; id. at Ex. 13 (letter from the office of the Secretary of State confirming Meyers that Ferro never received her notarial commission). Meyers also discovered that Ferro requested and received reimbursement for expenses she never incurred that related to receiving her notarial commission. Specifically, Ferro requested reimbursement for $235.00 in checks from her mother's Hibernia Bank checking account purportedly for expenses incurred in connection with obtaining the commission. ( Id. at ¶ 17; id. at Ex. 12.) Hibernia Bank confirmed that the checks Ferro presented as evidence of her expenses were never negotiated. (Def.'s Supp. Mem. at Ex. 2.) Ferro never returned the $235.00. (Def.'s Ex. A, Aff. of Meyers at ¶ 17.) Meyers determined that Ferro's failure to attend the notary course coupled with her failure to return the reimbursement for costs she never incurred constituted misappropriation of Stolthaven funds. ( Id. at ¶ 19.) Under Stolthaven policy, misappropriation of funds is punishable by immediate dismissal. ( Id.; id. at Ex. 14 (Stolthaven Discipline Policy).)
Meyers also reviewed Ferro's overall work performance. (¶ 14.) She discovered that Ferro had several work-related problems, including getting to work late, leaving work early and difficulty completing tasks in a timely manner. ( Id. at ¶ 14.) On July 18, 2003, Meyers decided that Ferro's misappropriation of funds combined with her unauthorized purchases and poor work performance warranted Ferro's termination. ( Id. at ¶ 19.)
On December 12, 2003, Ferro sued Stolthaven. Ferro alleges that Stolthaven was aware that she intended to take leave under the Family and Medical Leave Act and that Stolthaven fired her in retaliation for taking leave and/or to prevent her from exercising her rights under FMLA. Ferro also alleges that Stolthaven fired her in an effort to interfere with her ability to exercise her rights under Stolthaven's long-term disability benefits plan.
II. DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party. Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. FMLA Retaliation Claim
The FMLA makes it unlawful for an employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise" any right provided under the FMLA. 29 U.S.C. § 2615(a) (1). The McDonnel-Douglas burden shifting framework applies to retaliation claims under the FMLA. Hunt v. Rapides Healthcare Sys., L.L.C., 277 F.3d 757, 768 (5th Cir. 2002). To prevail on a claim of discrimination under FMLA, Ferro must first make a prima facie case of discrimination. To do this, Ferro must show that (1) she was protected under the FMLA; (2) she suffered an adverse employment action; and (3) that Stolthaven discriminated against her. Id. To meet her burden under the third prong, Ferro must demonstrate either that Stolthaven treated her less favorably than an employee who did not request FMLA leave, or that Stolthaven fired her because she took FMLA leave. Id. If Ferro makes a prima facie case, the burden shifts to Stolthaven to articulate a legitimate, nondiscriminatory or nonretaliatory reason for firing Ferro. Id. Once Stolthaven has done so, Ferro must show by a preponderance of the evidence that Stolthaven's explanation is a pretext for retaliation. Id.
The Court finds that Ferro fails to point to a genuine issue of fact that the reasons for her firing were a pretext for discrimination under the FMLA. Instead, the undisputed evidence shows that Stolthaven fired Ferro because she misappropriated Stolthaven funds, she made several unauthorized charges on Stolthaven accounts, and she had a record of poor work performance. Furthermore, the Court notes that although Ferro was fired while she was on leave from work, temporal proximity alone is insufficient to raise an issue of fact in light of the overwhelming and uncontradicted evidence that Stolthaven fired Ferro for her various disciplinary issues. Jarjoura v. Ericsson, Inc., 266 F.Supp.2d 519, 531 (N.D. Tex. 2003) (finding that simply because the employer fired the employee while he was on leave did not, by itself, raise an inference of discrimination). Accordingly, the Court finds that Stolthaven is entitled to summary judgment on Ferro's FMLA claim.
C. ERISA Claim
Ferro also alleges that Stolthaven fired her in an effort to interfere with her ability to exercise her rights under Stolthaven's long-term disability policy. See 29 U.S.C. 1140 (providing that it is unlawful for an employer to discriminate against an employee for exercising her rights under ERISA). In order to establish a prima facie case of discrimination under ERISA, Ferro must show that Stolthaven fired her to retaliate against her for exercising her rights under ERISA or to prevent her from attaining benefits to which she would have become entitled under ERISA. Holtzclaw v. DSC Comm. Corp., 255 F.3d 254, 260 (5th Cir. 2001). There is no evidence before the Court to indicate that Stolthaven fired Ferro to retaliate against her for exercising her rights under ERISA or to prevent her from attaining benefits to which she would have become entitled under ERISA. Instead, the undisputed evidence shows that Soltlhaven fired Ferro because of her multiple disciplinary problems and poor work performance. Accordingly, the Court finds that Stolthaven is entitled to summary judgment on Ferro's ERISA claim.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Stolthaven's motion for summary judgment.