                            NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 15a0795n.06

                                            Nos. 14-3892/3933                                     FILED
                                                                                           Dec 07, 2015
                                                                                       DEBORAH S. HUNT, Clerk
                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

CARLA THEISS                                                    )
                                                                )
        Plaintiff-Appellant/Cross-Appellee,                     )
                                                                )
                                                                         ON APPEAL FROM THE
v.                                                              )
                                                                         UNITED STATES DISTRICT
                                                                )
                                                                         COURT     FOR     THE
WALGREEN COMPANY,                                               )
                                                                         NORTHERN DISTRICT OF
                                                                )
                                                                         OHIO
        Defendant-Appellee/Cross-Appellant.                     )
                                                                )
                                                                )



        BEFORE: BOGGS and BATCHELDER, Circuit Judges; HUCK, District Judge.

        ALICE M. BATCHELDER, Circuit Judge. Carla Theiss filed suit against her employer,

Walgreen Company, claiming interference under the Family and Medical Leave Act (“FMLA”),

retaliation under the FMLA, and sexual harassment, hostile work environment, sexual

discrimination, and retaliation under state law. The district court granted summary judgment to

Walgreen Company (“Walgreens”) on both FMLA claims and, declining to exercise

supplemental jurisdiction over the accompanying state-law claims, dismissed them. We agree

with the district court that there was no interference or retaliation under the FMLA in this case.

We disagree with the district court’s characterization of its jurisdiction over the accompanying

state-law claims.      Therefore, we AFFIRM in part, REVERSE in part, and REMAND for

proceedings consistent with this opinion.

        
           The Honorable Paul C. Huck, Senior United States District Judge for the Southern District of Florida,
sitting by designation.
Nos. 14-3892/3933, Theiss v. Walgreen Company


                                                I.

        Carla Theiss (“Theiss”) worked in the shipping department at a Walgreens distribution

center. The facts underlying Theiss’s interference claim date back to November 4, 2010, when

she filed a request for intermittent FMLA leave. Her self-professed reason for the request was

“anxiety from co-workers and [management].” On November 18, 2010, Walgreens informed

Theiss that she did not qualify for the requested leave since she had not yet met the work-hour

requirements of the FMLA. On November 22, 2010, Walgreens gave further notice to Theiss

that her request had not been processed, and provided her with instructions regarding whom to

contact in order to pursue her claim. On December 20, 2010, Walgreens again contacted Theiss

to inform her that she needed to “have [her] physician provide clarification” on the request.

Walgreens explained that it needed this clarification by January 10, 2011, or else it would close

Theiss’s claim. Theiss never obtained this clarification from her physician. On March 4, 2011,

Walgreens contacted Theiss yet again and outlined several specific inadequacies in her FMLA

request that needed to be remedied before the claim could move forward. The letter even

included a HIPAA authorization form to make it more convenient for Theiss to supply the

needed information.

        During this process, Theiss’s managers at the distribution center filed two corrective

actions against Theiss because of her absences from work. But each of the filings indicated that

the actions were provisional pending the processing of her FMLA request. Aside from these

provisional filings, Walgreens took no further action against Theiss for her repeated absences

during this period. This was the state of Theiss’s request for FMLA leave when she was

terminated on March 15, 2011.




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Nos. 14-3892/3933, Theiss v. Walgreen Company


        Theiss’s retaliation claim arises out of the circumstances under which she was terminated

on March 15, 2011. From the time that Theiss began working in the distribution center in 2007,

she was in conflict with her fellow workers and with her supervisors. She asserts that she was

held to more rigorous standards, treated with unnecessary harshness, subjected to sexual

harassment by her coworkers, and forced to work in a hostile environment. On March 3, 2011,

Theiss accused Aaron Todd (“Todd”), a coworker, of physically assaulting her by bumping or

striking her as she walked through his work area. Theiss immediately reported Todd to their

managers. Theiss also reported the incident to the police and sought to press charges against

Todd. After investigating, the police determined not to take any action against Todd. To the

contrary, the investigating officer reported that he believed Todd had been assaulted by Theiss

and was willing to accept a complaint from Todd.

        When Walgreens received Theiss’s report, it launched an investigation of its own.

Various managers interviewed eyewitnesses to the event and also reviewed video footage from

surveillance cameras in the warehouse. After gathering the pertinent data, Walgreens concluded

that Todd was not at fault in the incident, that Theiss had fabricated the claim, that she had

actually been the one to initiate contact with Todd, and that she lied in her report. Walgreens’s

official policy states that “[t]here are some behaviors for which there is zero tolerance and which

will lead to immediate termination of employment at Walgreens.” Among these behaviors are

“gross misconduct, negligence, harassment or horseplay” and “falsifying personnel or other

company documents.” In accordance with this stated policy, and in light of Theiss’s encounter

with Todd and her subsequent misrepresentation of that event, Walgreens terminated Theiss’s

employment.




                                                -3-
Nos. 14-3892/3933, Theiss v. Walgreen Company


        Theiss filed suit against Walgreens on August 14, 2012, in state court in Wood County,

Ohio. On September 11, 2012, Walgreens removed the case to federal court, asserting that the

court had federal-question jurisdiction over the FMLA claims under 28 U.S.C. § 1331 and

diversity jurisdiction over the accompanying state-law claims under 28 U.S.C. § 1332. The

district court granted Walgreens’s motion for summary judgment on the FMLA claims, but it

dismissed the accompanying state-law claims, declining to exercise supplemental jurisdiction.

Theiss v. Walgreen Co., No. 3:12CV2294, 2014 WL 3908118 (N.D. Ohio Aug. 12, 2014).

                                                II.

        On an appeal of a grant of summary judgment, we review the district court’s decision de

novo. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 243 (6th Cir. 2004). We regard a district

court’s grant of summary judgment to be proper “where there exists no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law.” Edgar v. JAC Prods., Inc.,

443 F.3d 501, 506 (6th Cir. 2006); see Fed. R. Civ. P. 56(a).

                                                A.

        Turning first to Theiss’s interference claim, we note that the FMLA does not provide a

remedy “unless the employee has been prejudiced by the violation . . . . The remedy is tailored to

the harm suffered.”      Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).

The FMLA provides that an employee whose rights are interfered with is entitled to

        damages equal to the amount of any wages, salary, employment benefits, or other
        compensation denied or lost to such employee by reason of the violation; or in a
        case in which wages, salary, employment benefits, or other compensation have
        not been denied or lost to the employee, any actual monetary losses sustained by
        the employee as a direct result of the violation.

29 U.S.C. § 2617(a)(1)(A)(i). If an employee does not suffer any damages, then the FMLA does

not provide a remedy.



                                                -4-
Nos. 14-3892/3933, Theiss v. Walgreen Company


        Here, Theiss simply cannot show that she suffered any harm, prejudice, or denial of her

rights. Prior to her FMLA request on November 4, 2010, Theiss had made other requests for

leave that were granted. And even while she was waiting for Walgreens to process her latest

request, she was allowed numerous absences. Of course, she complains that those absences

brought corrective actions and that she would have taken more absences if she had not been

afraid of having her FMLA request denied.         But these corrective actions were provisional

pending the processing of her request. She suffered no actual damages as a result of her filing

for leave or taking numerous absences during the processing period. Moreover, Theiss’s claim

that she would have taken more absences if her request had been granted in no way proves that

Walgreens interfered with her request in any way. Thus, Theiss has failed to demonstrate any

damages cognizable under the FMLA in 29 U.S.C. § 2617(a)(1)(A)(i). Where there are no

damages, the statute provides no remedy. Ragsdale, 535 U.S. at 89.

                                                B.

        In order to establish a prima facie case of retaliation under the FMLA, an employee must

demonstrate four things:

        (1) she was engaged in an activity protected by the FMLA; (2) the employer knew
        that she was exercising her rights under the FMLA; (3) after learning of the
        employee’s exercise of FMLA rights, the employer took an employment action
        adverse to her; and (4) there was a causal connection between the protected
        FMLA activity and the adverse employment action.

Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012) (quoting Killian v. Yorozu Auto. Tenn.,

Inc., 454 F.3d 549, 556 (6th Cir. 2006)). We will assume, without deciding, that the district

court was correct in finding that Theiss provided sufficient evidence to establish a prima facie

case of retaliation. See Theiss, 2014 WL 3908118 at *4. After an employee has established a

prima facie case, the burden “then must shift to the employer to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green,
                                                -5-
Nos. 14-3892/3933, Theiss v. Walgreen Company


411 U.S. 792, 802 (1973). Thus, the central question before us is “whether the employer took

the adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason.”

Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 282 (6th Cir. 2012) (internal quotation marks

omitted).

        The record clearly demonstrates that when Walgreens was apprised of the incident

between Theiss and Todd, it immediately launched an investigation.              Various personnel

managers and directors interviewed witnesses, examined diagrams, reviewed written statements,

and analyzed video footage. At the conclusion of the process, Walgreens agreed with the police

analysis that Theiss was not telling the truth, that Todd was not at fault, and that any scuffle was

attributable to Theiss instead. It was only after this investigation that Walgreens made the

decision to terminate Theiss’s employment.

        We have previously held that “[i]n deciding whether an employer reasonably relied on

the particularized facts then before it, we do not require that the decisional process used by the

employer be optimal or that it left no stone unturned.” Smith v. Chrysler Corp., 155 F.3d 799,

807 (6th Cir. 1998). In reviewing Walgreens’s decision to fire Theiss, we are looking for “error

on the part of the employer that is too obvious to be unintentional.” Seeger, 681 F.3d at 286

(internal quotation marks omitted). In light of this standard, we find nothing in the record

showing any gross deficiency or oversight in Walgreens’s investigation. There is no evidence

showing that Walgreens’s reasons for firing Theiss were dishonest, pretextual, not sincerely held,

or discriminatory. On the contrary, Walgreens had a specific policy that provided for immediate

termination in cases of “harassment or horseplay” and “falsifying . . . documents.”           Since

Walgreens determined—after due investigation—that this is precisely what Theiss had done, her




                                                -6-
Nos. 14-3892/3933, Theiss v. Walgreen Company


termination was directly in line with a clearly established company policy. There is nothing that

indicates that Walgreens intended to retaliate against Theiss.

                                                C.

        With reference to the district court’s decision not to exercise jurisdiction over Theiss’s

state-law claims, if the question is one of supplemental jurisdiction, we review for abuse of

discretion. Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010). But if this is a

question of diversity jurisdiction, we review the district court’s judgment de novo. Charvat v.

NMP, LLC, 656 F.3d 440, 446 (6th Cir. 2011) (citing Lewis v. Whirlpool Corp., 630 F.3d 484,

487 (6th Cir. 2011)). Since the motion for removal claimed diversity jurisdiction as the grounds

upon which the state-law claims were being removed, we consider this to be a question of

diversity jurisdiction and accordingly review de novo.

        In its motion for removal, Walgreens asserted that Theiss’s state-law claims could be

heard by the district court because the requirements of diversity jurisdiction were satisfied. But

the district court interpreted these claims as if they had been brought under supplemental

jurisdiction and “thus dismiss[ed] Theiss’s state law claims without prejudice.”           Theiss,

2014 WL 3908118 at *1. Because these state-law claims were in fact removed to federal court

under a claim of diversity jurisdiction, we remand these claims to the district court to determine

whether they meet the criteria of 28 U.S.C. § 1332.

                                                III.

        In conclusion, we AFFIRM the judgment of the district court with respect to the

dismissal of Theiss’s claims of interference and retaliation under the FMLA. We REMAND the

question of the district court’s jurisdiction over the attendant state claims for proceedings

consistent with this opinion.



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