                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0796n.06

                                           No. 11-1743
                                                                                            FILED
                              UNITED STATES COURT OF APPEALS                           Jul 23, 2012
                                   FOR THE SIXTH CIRCUIT
                                                                                LEONARD GREEN, Clerk

ROBERT J. WINTERHALTER,                                  )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellant,                              )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
DYKHUIS FARMS, INC.,                                     )                            OPINION
                                                         )
       Defendant-Appellee.




BEFORE:        BOGGS and COLE, Circuit Judges; OLIVER, Chief District Judge.*

       COLE, Circuit Judge. Plaintiff-Appellant Robert J. Winterhalter sued Defendant-Appellee

Dykhuis Farms, Inc. for retaliation against, and interference with, Winterhalter’s exercise of rights

under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Dykhuis Farms

terminated Winterhalter’s employment on the day that Winterhalter was scheduled to return from

FMLA leave, allegedly due to economic hardship and Winterhalter’s status as the highest-paid and

lowest-performing of the workers in his unit. The district court granted summary judgment in favor

of Dykhuis Farms. For the reasons that follow, we AFFIRM.




       *
          The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 11-1743
Winterhalter v. Dykhuis Farms, Inc.

                                       I. BACKGROUND

       Dykhuis Farms is a family-owned pig farm with multiple facilities located throughout

Michigan and Indiana. Winterhalter began working there in February 2007 as manager of the

breeding herd, which entailed supervising sow-breeding operations at four different farms. He

reported to Erin Ehinger and was paid an annual salary of $55,000. In March 2009, Dykhuis Farms

converted its Shamrock Farm facility from raising male pigs for market to raising young female pigs

for breeding, and transferred Winterhalter to manage that herd only. Winterhalter’s salary remained

the same after the transfer. At Shamrock Farm, Winterhalter reported to Brandon Hill and

supervised two employees: Dan Dalman, the previous manager of Shamrock Farm who received an

annual salary of $45,000; and Tim Hocthanner, a farmhand who received an hourly wage that

amounted to less than $30,000 in earnings in 2009. In April 2009, Hill began documenting situations

in which he was dissatisfied with Winterhalter’s performance. On May 1, 2009, Winterhalter fell,

injuring his rotator cuff and hip, but continued to work throughout the summer and into the fall.

       During this time, Dykhuis Farms’s economic position became increasingly precarious. In

the summer of 2009, Dykhuis Farms’s bank informed Dykhuis Farms that it must take “immediate

and drastic measures to improve its financial performance, including immediately reducing the size

of its operations and overhead.” In response, Dykhuis Farms laid off thirteen full-time employees

over a seven-month period and reduced the sizes of its breeding herds. As part of this scheme, it

gradually reduced the size of the herd at Shamrock Farm by twenty-seven percent between late

September 2009 and early January 2010.



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Winterhalter v. Dykhuis Farms, Inc.

       As Winterhalter’s injury failed to improve over the summer, he decided to undergo surgery

to repair the damage to his rotator cuff. Winterhalter gave Dykhuis Farms notice and went on FMLA

leave beginning October 12, 2009, shortly after Dykhuis Farms had begun the process of reducing

the herd at Shamrock Farm. While Winterhalter was on leave, the management at Dykhuis Farms

began discussing “laying [Winterhalter] off due to lack of work at Shamrock and the rest of the

farm.” Upon determining that “Dan and Tim were doing great” in Winterhalter’s absence, Dykhuis

Farms decided to go through with the lay-off.

       On the day Winterhalter was scheduled to return from FMLA leave, he was asked to come

to the farm to retrieve a return-to-work authorization form. When Winterhalter arrived, he received

a termination letter informing him that Dykhuis Farms “has eliminated your position as Manager of

the Shamrock Unit.” The letter explained that “the primary reason for this job termination is for

financial reasons,” but also referenced his “job performance” and verbal warnings that he had

received “over the past two and a half years.” Two weeks after Dykhuis Farms terminated

Winterhalter, it posted internally for a position managing the raising of pigs for market, which paid

$12.00 per hour. It did not notify Winterhalter of this new position.

       Winterhalter filed a complaint in the United States District Court for the Western District of

Michigan on April 23, 2010, alleging that Dykhuis Farms terminated him because he took medical

leave, in violation of the FMLA’s retaliation and interference provisions. Dykhuis Farms responded

that it terminated Winterhalter for economic reasons and because he was the lowest-performing and

highest-paid of the employees in his unit. The district court granted Dykhuis Farms’s motion for

summary judgment on both the retaliation and the interference claims. This appeal followed.

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No. 11-1743
Winterhalter v. Dykhuis Farms, Inc.

                                         II. ANALYSIS

A. Standard of Review

        We review the district court’s grant of summary judgment de novo. Donald v. Sybra, Inc.,

667 F.3d 757, 760 (6th Cir. 2012). Summary judgment is proper when, based on the totality of the

record, “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court may not “weigh the

evidence or determine the truth of any matter in dispute,” but must “draw all inferences from the

record in the light most favorable to the nonmoving party.” Stratienko v. Cordis Corp., 429 F.3d

592, 597 (6th Cir. 2005). “[T]he court should give credence to the evidence favoring the nonmovant

as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at

least to the extent that that evidence comes from disinterested witnesses.’” Id. (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)) (alteration in original). Because

employer-defendants “will often be able to respond only through the testimony of their employees,”

courts may consider the uncontradicted affidavits or testimony of a defendant-employer’s employees.

Id. at 598.

B. FMLA Claims

        The FMLA provides two avenues to vindicate the rights of an employee who alleges that he

has been wrongfully terminated as a consequence of taking FMLA leave: the “entitlement” or

“interference” theory and the “retaliation” or “discrimination” theory. Arban v. West Publ’g Corp.,

345 F.3d 390, 400-01 (6th Cir. 2003). The “retaliation” or “discrimination” theory prohibits an

employer from “discharg[ing] or in any other manner discriminat[ing] against any individual for

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Winterhalter v. Dykhuis Farms, Inc.

opposing any practice made unlawful by this subchapter.”           29 U.S.C. § 2615(a)(2).      The

“entitlement” or “interference” theory derives from the FMLA’s creation of substantive rights. It

prohibits employers from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of” FMLA

rights, Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 87 (2002) (quoting 29 U.S.C.

§ 2615(a)(1)), and entitles any eligible employee who takes FMLA leave “to be restored by the

employer to the position of employment held by the employee when the leave commenced” or “to

be restored to an equivalent position with equivalent employment benefits, pay, and other terms and

conditions of employment,” 29 U.S.C. § 2614(a)(1).

       These provisions do not create a greater right to reinstatement or protection against

termination than the employee would receive if he had not taken FMLA leave. Arban, 345 F.3d at

401. Therefore, an employer may dismiss an employee who has taken FMLA leave, but only “if the

employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the

challenged conduct.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006).

       1. FMLA Retaliation/Discrimination

       Although Winterhalter alludes to a “mixed motives” theory of FMLA retaliation, he brings

his case under a theory of indirect discrimination, invoking “the tripartite burden-shifting

framework” announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Bryson v.

Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). Under this rubric, Winterhalter must present

sufficient evidence to establish his prima facie case, after which the burden shifts to Dykhuis Farms

to show a legitimate, non-discriminatory reason for terminating Winterhalter. Id. If Dykhuis Farms

is successful, the burden shifts back to Winterhalter to demonstrate that Dykhuis Farms’s stated

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No. 11-1743
Winterhalter v. Dykhuis Farms, Inc.

reason is pretextual. Id. The parties do not dispute that Winterhalter has satisfied the elements of

his prima facie case. Therefore, our inquiry will focus exclusively on whether a genuine dispute of

material fact exists regarding whether Dykhuis Farms and Winterhalter met their respective burdens

under the second and third McDonnell Douglas prongs.

               a. Dykhuis Farms’s Proffered Reasons for Terminating Winterhalter

       Dykhuis Farms advances two legitimate reasons unrelated to the exercise of FMLA rights

for terminating Winterhalter: first, that severe economic hardship forced it to eliminate numerous

positions throughout its organization, including one at Shamrock Farm; and second, that

Winterhalter was the highest-paid and lowest-performing worker at Shamrock Farm, prompting

Dykhuis Farms to select him for termination.

       Dykhuis Farms has produced sufficient evidence to support its assertions regarding economic

hardship. The November 2009 Employee Newsletter (“the Newsletter”) corroborates Dykhuis

Farms’s claim that it was taking “immediate and drastic measures to improve its financial

performance.” The Newsletter states that Dykhuis Farms is “starting [a] sow reduction plan as part

of a long range strategy” and ends with the ominous note: “We are not bankrupt. That is an ugly

rumor that needs to be stopped.”

       Dykhuis Farms has also produced sufficient evidence to support its assertions regarding

Winterhalter’s pay and performance. Dykhuis Farms showed Winterhalter’s poor performance

through the deposition testimony of both of his previous supervisors, notes that each supervisor took

documenting Winterhalter’s performance deficiencies, and a 2008 performance evaluation, which

described Winterhalter as performing below standards in three of the six areas reviewed.

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Winterhalter v. Dykhuis Farms, Inc.

Winterhalter does not dispute that he received a substantially higher salary than the other two

workers at Shamrock Farm.

               b. Winterhalter’s Showing of Pretext

       Winterhalter may establish pretext by showing “either (1) that the proffered reasons had no

basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they

were insufficient to motivate discharge.” Tisdale v. Fed. Express Corp., 415 F.3d 516, 529 (6th Cir.

2005). Winterhalter tries to show that Dykhuis Farms’s proffered reasons have no basis in fact by

challenging Dykhuis Farms’s assertion of economic hardship. Winterhalter challenges Dykhuis

Farms’s portrayal of its economic circumstances by focusing on a narrower time frame: Instead of

examining the seven-month period in which Dykhuis Farms claimed to undergo the restructuring that

caused it to lay off thirteen workers, Winterhalter focuses on the two months immediately preceding

and immediately following his termination. During that four-month period, Dykhuis Farms

terminated only four employees, including Winterhalter, but hired six. He urges the Court to infer

from the number of new hires during that four-month period that Dykhuis Farms made a similar

number of new hires throughout its purported workforce reduction. But Winterhalter makes no

showing of any additional hires by Dykhuis Farms during the remaining months in which Dykhuis

Farms terminated workers, and further, he must concede that five of the six newly hired employees

assumed only part-time or seasonal positions, while the thirteen terminated employees left full-time

positions.

       Beyond these hirings and firings, Winterhalter challenges the economic-hardship assertion

via the Newsletter’s moments of optimism—its celebration of “rising hog prices” and announcement

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No. 11-1743
Winterhalter v. Dykhuis Farms, Inc.

that “it looks like we will turn profitable early next year.” Taken as true, however, none of this

evidence creates a genuine dispute about the facts material to Dykhuis Farms’s assertion of economic

hardship: Winterhalter does not respond to the directive from the bank for Dykhuis Farms to take

“drastic measures to improve its financial performance,” nor does he put forth any financial

documents suggesting that Dykhuis Farms had turned profitable earlier than reported. Further, the

Newsletter’s moments of optimism stand in stark contrast to its general description of cost-cutting

measures. Thus, Winterhalter’s arguments do not create a genuine dispute as to whether Dykhuis

Farms’s assertion of economic hardship has a firm basis in fact.

       Nor can Winterhalter show that pay disparities and his poor performance did not actually

motivate his termination. He argues that emails among Dykhuis Farms’s management discussing

whether Winterhalter’s colleagues were “getting stuff done” without him create a genuine dispute

as to whether the management impermissibly considered Winterhalter’s leave when making their

termination decision. But merely taking Winterhalter’s leave as a factor in the termination decision

does not defeat summary judgment in an indirect-discrimination claim—Winterhalter would have

to have brought his claim under a mixed-motive theory to avail himself of this argument. Therefore,

the mere possibility that Winterhalter’s FMLA leave constituted a factor in Dykhuis Farms’s

decision to terminate him does not create a genuine dispute of material fact regarding whether his

high pay and poor performance actually motivated the termination.

       Finally, Winterhalter cannot show that pay disparities and performance deficiencies were

insufficient to motivate his termination. He attempts to persuade the court that, while his own

performance may have been lacking, his colleagues struggled even more. He supports this assertion

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No. 11-1743
Winterhalter v. Dykhuis Farms, Inc.

with his second-hand knowledge that Dalman had been demoted due to poor performance, and with

evidence that he had more experience with raising young female pigs than the other two workers at

Shamrock Farm.      Taken as true, this evidence does not raise a genuine dispute regarding

Winterhalter’s relative performance at the time he was fired. While Dalman’s performance may

have been poor in the past, Winterhalter puts forth no evidence that Dalman’s performance

deficiencies continued. Further, given Dykhuis Farms’s uncontested assertion that Hill took on

Winterhalter’s supervising responsibilities, Dalman’s and Hocthanner’s comparative levels of

experience did not make them ill-suited to the jobs that they held. Thus, Winterhalter does not put

forth affirmative evidence that he performed better than, or even as well as, his colleagues in the

positions that each held. Coupled with the extra expense of retaining Winterhalter as opposed to

either of the other two, we see no genuine dispute as to the sufficiency of these facts to support

Winterhalter’s discharge.

       2. FMLA Entitlement/Interference

       Winterhalter asserts that, by terminating him at the end of his FMLA leave, Dykhuis Farms

interfered with his FMLA entitlement “(A) to be restored by the employer to the position of

employment held by the employee when the leave commenced; or (B) to be restored to an equivalent

position with equivalent employment benefits, pay, and other terms and conditions of employment,”

29 U.S.C. § 2614(a)(1). As a threshold matter, Winterhalter bears the burden of establishing by a

preponderance of the evidence that he was entitled to restoration. See Arban, 345 F.3d at 401.

       Winterhalter has not created a genuine dispute of material fact as to whether he was entitled

to restoration. As explained above, we find no genuine dispute of fact regarding whether Dykhuis

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No. 11-1743
Winterhalter v. Dykhuis Farms, Inc.

Farms was going through a period of serious economic hardship at the time it terminated

Winterhalter. Nor do we find a genuine dispute regarding whether Winterhalter was the highest-paid

or the lowest-performing of the three workers at Shamrock Farm. The district court correctly ruled

that Winterhalter cannot show that he was entitled to restoration to his position or any similar one

and thus Dykhuis Farms is entitled to summary judgment on Winterhalter’s FMLA interference

claim.

                                       III. CONCLUSION

         For the reasons stated above, we AFFIRM.




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