Evan S. Hull v. Stoughton Trailers , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2205
E VAN S. H ULL ,
Plaintiff-Appellant,
v.
S TOUGHTON T RAILERS , LLC,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wiconsin.
No. 04-C-0721-S—John C. Shabaz, Judge.
____________
A RGUED J ANUARY 4, 2006—D ECIDED A PRIL 26, 2006
____________
Before P OSNER , E VANS , and W ILLIAMS, Circuit Judges.
W ILLIAMS , Circuit Judge. Stoughton Trailers
(“Stoughton”) fired Evan Hull (“Hull”) shortly after he
completed an approved one-week leave under the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.
(2000), and while he was requesting additional FMLA leave.
Despite Hull’s claims that Stoughton impermissibly fired
him because he requested FMLA leave, the district court
granted summary judgment in favor of Stoughton. We
affirm, not on the grounds relied on by the district court,
but rather because Hull failed to establish his prima facie
burden of showing that similarly situated employees who
did not take FMLA leave were treated more favorably.

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2 No. 05-2205
1 The parties disagree about the exact contours of this conver-
sation, but the differences do not affect the outcome here.
I. BACKGROUND
Hull worked as an assembly line supervisor at Stoughton,
a Wisconsin manufacturing facility that fabricates and
assembles trailers, containers, and chassis for use with
large trucks. In Fall of 2003, Hull had a flare-up of a lower
back condition and consulted his doctor, an orthopedic
specialist. On October 8, 2003, Hull’s doctor prescribed
diazepam (commonly known as Valium) and hydrocodone
(an opiate) for pain relief. Both of these medications have
side effects that include drowsiness and, at higher doses,
confusion and even delirium. Hull regularly took these
medications with his breakfast at approximately 4:30 a.m.
and would then travel to Stoughton’s Brodhead, Wisconsin
facility, where his shift routinely began at 6 a.m.
On November 3, 2003, Hull met with Barb Patterson
(“Patterson”), Stoughton’s Human Resource Administrator,
and reported that he had a ruptured disc in his back. Hull
requested that Patterson begin paperwork for a possible
FMLA leave. Hull also discussed his medication regimen
with Linda Lewis, Stoughton’s company nurse, who pur-
portedly told Hull that his plan of taking the medications at
approximately 4:30 a.m. was medically sound. 1
On the morning of November 10, 2003, one of Hull’s co-
workers noticed that he looked impaired: Hull’s speech was
slurred and he appeared confused and drowsy. Contrary to
standard company policy, Stoughton personnel did not
administer a drug test. Instead, Stoughton requested that
Hull leave work, which he promptly did. That same day,
Hull’s physician placed Hull on a one-week medical leave.
On November 12, 2003, Stoughton approved the one-week
leave, effective November 11, 2003.

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No. 05-2205 3
On November 17, Hull’s physician placed him on an
additional two-week leave. That same day (or the day
after—the parties, again, disagree), Hull notified
Stoughton’s Human Resources department that his
FMLA leave would need to be extended by two weeks.
Unbeknownst to Hull, around this same time, his im-
mediate supervisor, Robert Wahlin, and Stoughton’s
General Manager, Bradford Alfery (“Alfery”), were confer-
ring to discuss terminating Hull, purportedly for his
violation of the company’s drug policy and ongoing perfor-
mance problems. (Hull had received a new work assignment
in August 2003, following prior unfavorable reviews in
October 2002 and June 2003, but he completed a 45-day
initial review period in September 2003, with no indica-
tion of continuing performance issues.)
On November 20, 2003, Stoughton terminated Hull, with
a retroactive effective date of November 18, 2003. The
termination notice to Hull from Alfery, the company
decision-maker, stated, in pertinent part:
The Company has determined that you failed to
comply with [Stoughton’s Drug and Alcohol policy
and the Code of Ethics]. By itself, this event is
enough to terminate your employment and in light
of your previous poor performance, decision making,
and your failure to meet the performance improve-
ment expectations as mutually agreed, your imme-
diate termination of employment with the Company
is necessary.
Hull filed a lawsuit in Wisconsin state court, alleging that
Stoughton retaliated and discriminated against him for
taking FMLA leave. Stoughton removed the case to federal
court. After the parties conducted significant discovery,
Stoughton filed a motion for summary judgment. The
district court granted Stoughton’s motion for summary
judgment, holding that Hull could not establish that Alfery,

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4 No. 05-2205
the decision-maker, knew that Hull had taken FMLA leave
prior to the decision to terminate him. As a result, the
district court concluded that Hull could not establish a
“causal relationship” between the protected activity (taking
FMLA leave) and his firing. The district court further held
that even if Hull could establish a prima facie case, Hull
could not establish that Stoughton’s proferred reasons for
the termination were pretextual.
II. ANALYSIS
The district court’s principal reason for granting summary
judgment was that Hull could not establish that Alfery, the
decision-maker, was aware that Hull had requested FMLA
leave, and therefore Hull could not establish a “causal
relationship” between the protected activity and the adverse
action. This court, however, no longer requires the type of
causal link that the district court found to be lacking in this
case. See Stone v. City of Indianapolis Pub. Utils. Div., 281
F.3d 640, 643-44 (7th Cir. 2002). Instead, to establish an
FMLA retaliation or discrimination case under the indirect
method (which is the case that Hull brings here), Hull must
show that after taking FMLA leave (the protected activity)
he was treated less favorably than other similarly situated
employees who did not take FMLA leave, even though he
was performing his job in a satisfactory manner. See id.;
see also Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th
Cir. 2004).
On appeal, Stoughton does not dispute that the district
court’s basis for granting summary judgment was incorrect.
Instead, Stoughton argues that Hull cannot meet his prima
facie requirement of showing that similarly situated
employees who did not take FLMA leave were treated more
favorably than Hull. Because this court can affirm summary
judgment on any ground found in the record, we consider
this argument. See Box v. A & P Tea Co., 772 F.2d 1372,

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No. 05-2205 5
1376 (7th Cir. 1985). Hull’s evidence on the similarly
situated requirement is thin: it consists of a spreadsheet
showing that over the course of ten years, eighty-five of
Stoughton’s employees were disciplined for violating
Stoughton’s drug use policy, but only three non-probation-
ary employees (like Hull) were discharged for first-time
violations of the policy. Furthermore, there were additional
grounds (such as manipulating urine samples) that inde-
pendently justified discharging these three employees.
Although this evidence establishes that Hull was likely
punished with greater severity than virtually any other
first-time violator of Stoughton’s drug and alcohol policy, it
does not satisfy this court’s requirement for establishing a
similarly situated comparator group. Specifically, Hull fails
to show that at least one of these other Stoughton employ-
ees (the comparators) is directly comparable to him and did
not take FMLA leave.
“To determine whether two employees are directly
comparable, a court looks at all the relevant factors, which
most often include whether the employees (i) held the same
job description, (ii) were subject to the same standards, (iii)
were subordinate to the same supervisor, and (iv) had
comparable experience, education, and other qualifica-
tions—provided the employer considered these latter factors
in making the personnel decision.” Ajayi v. Aramark Bus.
Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003); see also
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-19 (7th
Cir. 2000); Buie, 366 F.3d at 508. Although the similarly
situated requirements should not be applied mechanically
or inflexibly, Hull here fails to present any evidence that
would allow a meaningful comparison between the circum-
stances of his discharge and those surrounding the disci-
pline meted out to his would-be comparators. For instance,
Hull’s evidence lacks any information pertaining to the job
duties of the comparators, the supervisor(s) involved in the
comparators’ discipline, and whether any of the compara-

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6 No. 05-2205
tors had job performance histories somewhat comparable to
Hull’s. On a more fundamental level, Hull fails to present
any evidence on the critical independent variable here:
FMLA leave (i.e., which comparators did (or did not) take
FMLA leave). And there was no indication from Hull’s
counsel at oral argument that this type of information was
not readily available through conventional discovery
methods. Hull’s failure to provide even rudimentary data on
comparators is glaring because Stoughton’s purported
treatment of first-time violators of its drug policy is the only
circumstantial evidence (aside from suspicious timing,
which almost never carries the day alone, see Stone, 281
F.3d at 644) that Hull provides to allow a jury to infer
discrimination. Thus, without meaningful comparison data,
there simply is not enough circumstantial evidence from
which a reasonable jury could conclude that Stoughton fired
Hull because he took FMLA leave, rather than because of a
myriad of other permissible (even if distasteful) reasons,
which run the gamut from personal animus to sheer
employer whim.
Hull argues that comparator data is unnecessary because,
in his view, under “Stoughton’s consistent and unvarying
enforcement of the Policy it doesn’t matter who your super-
visor is; it doesn’t matter what position you hold; it doesn’t
matter what your job qualifications are; it doesn’t matter
whether your prior job performance has been good or bad.”
(App. Br. at 2) (emphasis in original). Instead, all that
matters is that Hull’s alleged drug violation was of compa-
rable seriousness to other employee offenders.
This argument runs squarely against well-established
case law in this circuit. See, e.g., Stone, 281 F.3d at 643-44.
Hull’s sole authority for his novel position is this court’s
decision in Cherry v. AT&T Co., 47 F.3d 225 (7th Cir. 1995).
But Cherry certainly does not stand for the broad proposi-
tion that an employer’s invocation of a policy as justification
for an adverse employment action voids the typical require-

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No. 05-2205 7
ment of a plaintiff showing similarly situated comparators.
Cherry merely noted that in certain limited circumstances
this court may look to an underlying discriminatory policy
that targets only protected class members as a method to
expand the range of comparison employees. Id. at 229,
citing McNabola v. Chicago Transit Authority, 10 F.3d 501
(7th Cir. 1993). For instance, the Cherry court cited the
McNabola decision, where the class of similarly situated
employees was expanded to include per diem attorneys
because the plaintiff there was the only per diem medical
officer hired by the defendant, and, as the McNabola court
noted, “a defendant should not be insulated from liability
under the equal protection clause merely because it utilizes
only a limited number of per diem medical examiners.”
McNabola, 10 F.3d at 514. In contrast, Hull does not
contend that there was anything unique about his job duties
or that data on comparator employees was some-
how unavailable. He also does not suggest that there
was a company-wide discriminatory policy that targeted
only members of a protected class (nor could Hull make
such an argument, in light of the fact that he did not
determine which of the past violators of Stoughton’s drug
policy had requested or taken FMLA leave).
Hull’s argument is contradictory because his only poten-
tial winning argument cannot depend on Stoughton’s
“consistent and invarying enforcement of the Policy.” It
depends on precisely the opposite. That is, Hull must
show that Stoughton does not apply its drug and alcohol
policy in a consistent or invariable fashion, blind to
FMLA status, but rather, at least with respect to him,
Stoughton selectively enforces its policy in accordance
with its alleged disdain for workers who request or take
FMLA leave. That, once again, leads back to the necessity
of providing additional descriptive data about respective
FMLA leaves, supervisors, job duties, performance histo-
ries, and so forth—none of which Hull presented to the
district court.

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8 No. 05-2205
As a final note, we observe that Hull’s complaint contains
a bare allegation that “[i]n terminating Hull, Stoughton
unlawfully interfered with Hull’s attempt to exercise rights
protected by the Act.” These words might provide a claim of
improper interference with FMLA rights, which is a claim
that is not only more squarely in-line with the facts of this
case, but would also evade the evidentiary hurdles that
doomed Hull’s discrimination/ retaliation claim. See
Kauffman v. Federal Express Corp., 426 F.3d 880, 884-85
(7th Cir. 2005) (distinguishing the requirements between
FMLA discrimination and interference claims). Hull’s
counsel, however, assured us at oral argument that he did
not pursue an interference claim in this litigation, and, as
plaintiffs are, of course, free to pursue whichever avenues
of recovery they choose, we do not delve further into this
potential claim.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the district court’s
grant of summary judgment in favor of defendant.

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No. 05-2205 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-06

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