D.C. No. 2:13-CV-02053-JTM, D. Kan.
Before KELLY, HOLMES, and McHUGH, Circuit Judges.
ORDER AND JUDGMENT [*]
PAUL J. KELLY, JR. CIRCUIT JUDGE.
Plaintiff-Appellant Sa'Quena Llamas appeals from the district court's grant of summary judgment in favor of her former employer Defendant-Appellee QC Financial Services, Inc. (QC). Llamas v. QC Fin. Servs., Inc., No. 13–2053–JTM, 2014 WL 707231 (D. Kan. Feb. 24, 2014). On appeal, Ms. Llamas contends she was wrongfully discharged in retaliation for opposing pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and the Pregnancy Discrimination Act (PDA). Aplt. Br. 2. She advances a "cat's paw" or "subordinate bias" theory of liability, alleging the regional manager who terminated her employment improperly relied on a biased report from a subordinate manager. Id. at 23. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
On May 26, 2009, Ms. Llamas was hired by Deanna Robinson, an Area Manager for QC, to serve as a Customer Service Representative. Ms. Robinson oversees the daily operations of four stores and reports to a Regional Manager, William Banker. QC provided Ms. Llamas with an Employee Manual setting forth QC's policies, procedures, and expectations for employees. It contains a policy against discrimination and harassment, stating that "[e]mployees who believe they have been subjected to or witnessed any unlawful discrimination or harassment should immediately report the matter to their Area Manager, Regional Manager, or the Company's Human Resources Department." Aplt. App. 155–56. The manual also sets forth disciplinary procedures and a sample list of conduct that may result in termination, including "[i]nsubordination to a supervisor, " "[l]ack of respect for and cooperation with co-workers, including the use of profane or abusive language, " and "[a]ny other activity that the Company reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business." Id. at 153.
The record shows Ms. Llamas received several promotions and pay raises during her time at QC. Ms. Robinson first promoted Ms. Llamas to the position of Assistant Branch Manager on August 26, 2009. With her promotion, her salary increased from $9.00 to $10.25 per hour. A few weeks later, on October 7, 2009, Ms. Llamas informed Ms. Robinson that she was pregnant. The following day, Ms. Robinson promoted Ms. Llamas to the position of Branch Manager. Mr. Banker approved Ms. Llamas' promotion, which increased her salary to $12.00 per hour.
As Branch Manager, Ms. Llamas was the "face of the store" and the highest-ranking official at the store. Id. at 56. Her duties included managing employees, opening the store on time, counting the money in the safe, and maintaining general responsibility for the store. When Ms. Llamas' pregnancy ended in miscarriage in 2009, she missed work due to complications. She was never demoted, and she did not lose any salary or benefits.
In April 2010, Ms. Robinson gave Ms. Llamas another raise to $12.50 per hour, based on a March 2010 performance appraisal. Mr. Banker approved her raise. The March 2010 performance appraisal reflected an overall rating of "[m]eets and sometimes exceeds relevant performance standards." Id. at 130. In the category of "[a]rrives at work each scheduled day, on time, and ready to work at scheduled start time, " Ms. Llamas received a rating of "[c]onsistently exceeds relevant performance standards." Id. at 128–29. Her "[a]reas of strong performance" included "knowledgable [sic] of job duties, displays good customer service, and maintains a team focused work environment, " while her "[a]reas of performance needing improvement" included "work on your leadership skills." Id. at 130.
Despite her positive evaluation for the preceding year, Ms. Llamas was tardy on several occasions between March 2010 and December 2010. The parties dispute whether Ms. Robinson formally counseled or took disciplinary action against Ms. Llamas, but they agree that Ms. Robinson spoke with her about her performance issues. Supp. App. 17. Ms. Robinson stated she spoke with Ms. Llamas about these concerns on an almost weekly basis between March and December 2010. Id. at 87. Their regular conversations began before Ms. Llamas was pregnant with the child she delivered on March 1, 2011 and continued during her pregnancy. Ms. Llamas asserts she did not perceive the discussions to be disciplinary in nature, and it was her "understanding that [she] was supposed to work closely with Ms. Robinson to resolve issues." Aplt. App. 213.
According to Ms. Robinson and Mr. Banker, on January 4, 2011, they formally counseled Ms. Llamas about her job performance issues. Supp. App. 45–46, 61–62. Specifically, they discussed her tardiness, lack of professionalism, and habit of bringing personal issues into the workplace. Mr. Banker participated by phone and reiterated to Ms. Llamas that the problems they were addressing had been discussed previously, and she needed to improve her behavior. This meeting was disciplinary in nature, and Ms. Llamas was given an opportunity to make the necessary corrections to her job performance.
In her declaration, Ms. Llamas characterizes the events of January 4 differently. She asserts she had an argument with Ms. Robinson about writing off a customer's debt, and Ms. Robinson told her she was "acting rude." Aplt. App. 213–14. Ms. Llamas then called Mr. Banker, who said he had spoken with Ms. Robinson about her behavior. He instructed her to "work with [Ms. Robinson] to resolve [their] differences." Id. at 214. Ms. Llamas contends neither Ms. Robinson nor Mr. Banker commented on her tardiness or habit of discussing personal issues at work, and they did not indicate that their conversations were disciplinary. Id. The record shows that, later the same day, Ms. Llamas sent Ms. Robinson a message on Facebook saying she was "really excited to get off to a great new start!" Ms. Robinson responded by saying "Me too! We're going to have [a] great year!" Supp. App. 92.
For the next month, Ms. Robinson testified Ms. Llamas continued to have performance issues, including tardiness and lack of professionalism. Ms. Robinson stated that, on one occasion, Ms. Llamas did not come to work; after texting to say she would be staying home, she did not respond to Ms. Robinson's questions. Id. at 48.
On February 8, 2011, Ms. Llamas notified QC of her need to take medical leave for the birth of her child, beginning March 1, 2011. Ms. Robinson assisted Ms. Llamas in securing FMLA leave. Ms. Llamas returned ...