The opinion of the court was delivered by: Eduardo C. Robreno, J.
In this case, Leandra Allen ("Plaintiff") claims her former employer, Nutrisystem, Inc. ("Defendant"), retaliated against her in violation of 42 U.S.C. § 1981 and the Family and Medical Leave Act ("FMLA"). Defendant moved for summary judgment. For the reasons that follow, the Court will grant Defendant's motion and enter judgment in favor of Defendant on all counts.
Plaintiff worked for Defendant as a customer service representative from May 5, 2008, until her termination on September 2, 2010. Allen Dep. vol. I, 41:13-16, Feb. 8, 2012, ECF No. 16-15; Def.'s Mot. Summ. J. Ex. L, Hire Form, ECF No. 16-14. Plaintiff's responsibilities included assisting Defendant's customers with any questions they had about its products, handling billing issues, and dealing with outside vendors. Allen Dep. vol. I, 35:3-36:6. As part of the hiring process, Plaintiff signed various forms acknowledging receipt of Defendant's Employee Handbook, Call Center Code of Conduct, and job description. See Def.'s Mot. Summ. J. Exs. J-K, ECF Nos. 16-12 to -13. The Call Center Code of Conduct generally instructs employees to work hard to solve customer issues and to treat customers with respect. Def.'s Mot. Summ. J. Ex. J, at 3. The Nutrisystem Employee Handbook specifies that disciplinary action and discharge may be levied against employees who violate the Call Center Code of Conduct. Def.'s Mot. Summ. J. Ex. K, at 3. It is undisputed that rude treatment of customers subjects an employee to immediate termination. Id.
During Plaintiff's tenure at Nutrisystem, she had several different supervisors. Allen Dep. vol. I, 36:7-37:7. Their names and periods of supervision over Plaintiff are: (1) Linda Hartman, who supervised Plaintiff from Plaintiff's date of hire until February 16, 2009; (2) Maureen Shaeffer, who supervised Plaintiff from February 16, 2009 until July of 2010; and (3) Patricia Houser, who supervised Plaintiff thereafter until Plaintiff's termination on September 2, 2010. Id.
Supervisors Hartman and Schaeffer gave Plaintiff a performance examination in May 2009, almost one year after Plaintiff started at Nutrisystem. See Def.'s Mot. Summ J. Ex. O, Performance Appraisal 1, ECF No. 16-17. Plaintiff received a rating of "meets expectations." Id.*fn1
Plaintiff then started having issues with other Nutrisystem staff members. These complaints include the following. On January 4, 2010, Plaintiff sent an email to Shaeffer about "offenses" she wanted Shaeffer to investigate. See id. Ex. X, ECF No. 16-27. Specifically, Plaintiff complained about rude comments made by Matea Hartridge, an employee, and Mercedez Hobson, Plaintiff's Sunday supervisor, which Plaintiff believed were directed at her. See id. These comments included Hartridge saying "[Plaintiff] looks like shit every day" and "somebody is going crazy." Id. Plaintiff also alleges that Hobson said things like "there is something wrong with [Plaintiff]." Id. Shaeffer and Lynn Schmidt, another supervisor, spoke with Plaintiff for 40 minutes about her complaint. See id. Ex. Y. To resolve the matter, Shaeffer told Plaintiff's team, which included both Hartridge and Hobson, that "rude and harassing behaviors would not be tolerated." Id. Ex. AA; see also Carrington Dep. 25:7-11, Mar. 23, 2012, ECF No. 16-23.
On February 1, 2010, Plaintiff submitted a written complaint with Defendant's human resources department. Def.'s Mot. Summ. J. Ex. BB, ECF No. 16-30. The complaint, in general, included the same allegations against the parties above, but also included allegations that Jameece Nickerson, another employee, said rude things in her general direction. Id. at 2-3. Plaintiff also complained that Hartridge was "rude when spoken to" and had denied Plaintiff's requests for help. Id. at 2. Defendant investigated the complaint. Carrington Dep. 29:14-31:10. Defendant also allowed Plaintiff to move her seat. Def.'s Mot. Summ. J. Ex. CC, ECF No. 16-31. And Shaeffer and Lynnea Carrington, one of Defendant's human resources representatives, met with Hartridge and requested that she refrain from engaging in any offensive or inappropriate behavior. Id. Ex. DD, ECF No. 16-32; see also Carrington Dep. 37:14-38:6.
On June 1, 2010, Plaintiff submitted a written complaint about Shaeffer. Def.'s Mot. Summ J. Ex. FF, ECF No. 16-34. Therein, Plaintiff alleged that Shaeffer reprimanded her in front of other employees, falsely accused her of violating procedure, refused to let her read at her workstation, and isolated her from the team. Id. In a subsequent meeting with Ms. Carrington, Plaintiff accused Shaeffer of racism. Id. Ex. HH, ECF No. 16-36.*fn2
On July 6, 2010, Plaintiff submitted another written complaint about Nickerson. Id. Ex. QQ, ECF No. 16-47. Plaintiff alleged that Nickerson had jokingly accused her of having a mental disorder and had implied that said disorder was the true reason for her FMLA leave discussed below. Id. at 2-3.
In addition to Plaintiff's internal complaints, on June 25, 2010, Plaintiff filed a charge of racial discrimination against Defendant with the EEOC. Id. Ex. OO, EEOC Charge, ECF No. 16-45. The charge, stemming from the June 1, 2010, complaint, alleged that Shaeffer engaged in harassing and discriminating behavior towards Plaintiff on account of her race. Id. at 1-4. Tom Veitz, one of Defendant's human resources representatives and a decision-maker in Plaintiff's termination, testified to receipt of Plaintiff's EEOC charge "at the end of July." Veitz Dep. 32:19-21, Mar. 23, 2012, ECF No. 16-33.
Around the time of these complaints, Plaintiff started experiencing technical difficulties with her work phone. On June 8, 2010, Plaintiff complained in writing to Shaeffer that customers could not hear her over the phone. Allen Dep. vol. I, 245:14-20; Pl.'s Resp. Ex. O, ECF No. 20-14. She requested a new headset, because she had to strain her voice to talk. Pl.'s Resp. Ex. O. On July 19, 2010, Plaintiff complained again in writing to Houser that "[c]ustomers all day have been calling in and saying they cannot hear me." Id. Ex. P, ECF No. 20-15. She also complained "that there were calls that were cutting out," and she "couldn't hear the customer." Id. Ex. B, at 13, ECF No. 20-1. She stated that the problem had been going on for the past month. Id. Ex. P. In response to each complaint, Defendant assisted her in resolving the issue, first replacing the telephone headset and then the batteries, although not the phone itself. See Allen Dep. vol. I, 142:23-147:24.
Plaintiff also requested and took FMLA leave three times during her employment: (1) from December 14 to December 20, 2009, Plaintiff took a one week leave of absence to stay home with her son after the child's hernia surgery, see Def.'s Mot. Summ. J. Ex. P; see also Allen Dep. vol. I, 42:12-21, 58:14-17; (2) from March 1, 2010, to April 5, 2010, Plaintiff took time off after a car accident, which leave was extended until she returned on May 12, 2010, see Def.'s Mot. Summ. J. Exs. Q-T, ECF Nos. 16-19 to -22; see also Allen Dep. vol. I, 59:12-64:11; and (3) from June 20 to June 27, 2010, Plaintiff took time off for stress and anxiety, see Def.'s Mot. Summ J. Exs. V-W, ECF Nos. 16-24 to -25; see also Allen Dep. vol. I, 65:9-66:3.
After Plaintiff returned from her third leave of absence and began experiencing issues with her telephone, and after Defendant received her EEOC charge, she received three write-ups. These included the following: (1) on July 28, 2010, Houser issued a written warning to Plaintiff for a no call/no show, Def.'s Mem. Supp. Summ. J. Ex. SS, Employee Corrective Action Notice, July 28, 2010, ECF No. 16-49; (2) on August 18, 2010, Houser issued a "final written warning" to Plaintiff as a result of her violation of Defendant's call policies and her treatment of customers, Id. Ex. TT, Employee Corrective Action Notice, Aug. 18, 2010, ECF No. 16-50; and (3) on August 25, 2010, Plaintiff received a "coaching notice" regarding her hanging up on a customer who was belligerent-Plaintiff did not follow procedure and escalate the call to her supervisor. Id. Ex. DDD, Employee Corrective Action Notice, Aug. 25, 2010, ECF No. 16-60. Before she filed her charge, Plaintiff had never received any write-ups. Pl.'s Resp. 5, ECF No. 19.
On August 20, 2010, Plaintiff emailed Veitz in response to the final written warning, blaming mechanical issues with her phone for problems Defendant had attributed to her performance.
Id. at 38. She said that inbound callers could not hear her and that "the phone seemed to have some type of short in the line."
Id. Ex. BBB, ECF No. 16-58. She said that no technician had investigated until August 17, 2010. Id. She wanted the warning struck from her record. Id. However, Veitz investigated her complaint, discussing her telephone issues with the IT department, and determined that Plaintiff's conduct, and not Plaintiff's mechanical problems, was to blame. Veitz Dep. 29:22-31:4.
On September 2, 2010, Defendant terminated Plaintiff. Defendant told Plaintiff that it was firing her for poor performance. Allen Dep. vol. II, 48:1-2. This performance included "repeatedly hanging up on Nutrisystem customers" and "improperly handling calls" that had been forwarded to her. Pl.'s Resp. Ex. M, ECF No. 20-12. Specifically, Defendant presents that Plaintiff improperly disconnected 94 calls on August 30, 2010; 13 calls on August 31, 2010; and 46 calls on September 1, 2010.
Def.'s Mot. Summ J. Ex. EEE, ECF No. 16-61. Plaintiff would answer a customer's call and then say nothing else, leaving the customer ...