                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                      August 26, 2016

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

KRIS OLSON,

      Plaintiff - Appellant,

v.                                                         No. 15-1380

PENSKE LOGISTICS, LLC,

      Defendant - Appellee.
                       _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:14-CV-03098-MEH)
                       _________________________________

Scot C. Kreider (Sara A. Green with him on the briefs), of Bachus & Schanker, Denver,
Colorado, for Plaintiff–Appellant.

Cynthia K. Springer of Faegre Baker Daniels, Indianapolis, Indiana (Thomas W. Carroll
of Faegre Baker Daniels, Denver, Colorado, with her on the briefs), for Defendant–
Appellee.
                        _________________________________

Before BRISCOE, McKAY, and BALDOCK, Circuit Judges.
                  _________________________________

McKAY, Circuit Judge.
                         _________________________________

      Kris Olson managed a warehouse for Penske Logistics, but Penske fired him

while he was on medical leave. He filed suit under the Family and Medical Leave

Act (FMLA), alleging Penske had unlawfully interfered with his FMLA rights.
      Penske moved for summary judgment. It argued that Mr. Olson could not

satisfy the third element of an FMLA interference claim: he could not show that his

termination was “related to the exercise . . . of [his] FMLA rights,” Dalpiaz v. Carbon

Cty., 760 F.3d 1126, 1132 (10th Cir. 2014). Because of his poor job performance,

Penske argued, Mr. Olson would have been fired even if he had not taken leave.

Penske’s motion was granted, and Mr. Olson now appeals.

      Mr. Olson contends summary judgment was inappropriate because there is

enough evidence for a jury to believe his termination was related to his leave. For

this argument to succeed, Mr. Olson must identify some “causal connection” between

his leave and Penske’s decision to fire him. Campbell v. Gambro Healthcare, Inc.,

478 F.3d 1282, 1289 (10th Cir. 2007). Mr. Olson identifies two. A reasonable jury

could find, he argues, that if he had not taken leave, he would have been able to

defend his job performance and persuade Penske not to terminate him. And, he

argues further, a reasonable jury could find he was really fired for taking leave when

he was urgently needed at work.

      We reject both of these arguments. While they might initially seem plausible,

neither of them survives close contact with the facts.

                                      BACKGROUND

      Penske hired Mr. Olson in 2002. He started out as a dispatcher, with no

subordinates, but over the next ten years he was promoted three times. By 2013 he

was the Operations Manager of Penske’s Denver warehouse and responsible for

everything that went on there: hiring, financial records, moving and tracking

                                         –2–
inventory, regular inventory audits, and so on. He supervised “approximately 30 or

34” Penske employees. (Appellant’s App. at 115.)

      Initially, his performance seemed adequate. His 2013 performance review

gave him mostly “3” grades on a 5-point scale, indicating “Successful Performance”

but not “Highly Successful Performance” or “Exceptional Performance.” (Id. at 85–

92.) He received “2” grades—meaning “Inconsistent Performance”—in four

categories: communication, team building, efficiency, and achieving results. (Id. at

86–88.) Mr. Olson’s supervisor, Rick Elliott, gave the following recommendation

about Mr. Olson’s future with Penske: “Kris needs to continue working as an

Operations Manager or something similar for [2014]. He has performed well [in

2013], but needs to continue his training in his present position.” (Id. at 92.)

      2014 did not go as planned. In January, Mr. Olson received his first formal

discipline from Penske, a written warning reprimanding him for not firing a worker

who had violated safety rules. The warning advised Mr. Olson, “In the future your

failure to properly follow procedures will result in more severe disciplinary action up

to and including discharge.” (Id. at 198.)

      “More severe disciplinary action” happened in June. It was prompted by an

email from Mr. Olson to Mr. Elliott: “We are in need of lift operator support. . . . Is

there anyone in the region that could help us out with 3–4 operators?” (Id. at 55–56.)

      Mr. Elliot responded incredulously: “Kris I am shocked to receive this email

and you telling me you need 3 to 4 people from other regions. I have been pushing

you hard for the past 6 months to get people hired . . . .” (Id. at 54.) He encouraged

                                          –3–
Mr. Olson to be creative and cut corners if necessary in order to get the warehouse

caught up: “Maybe you skip cycle counts [i.e., inventory audits], or reduce them.

Start thinking through this.” (Id.) He later met with Mr. Olson and put him on a 60-

day “action plan,” which instructed Mr. Olson to hire more workers, process

inventory more quickly, and respond promptly to phone calls and email. (Id. at 57.)

The action plan concluded with the following warning: “Failure to meet and

maintain all requirements will result in your immediate termination of employment.”

(Id.)

        Mr. Olson did as instructed, and Mr. Elliott soon emailed him some

encouragement: “At this time you have been meeting all the requirements of your

action plan. Please continue that kind of performance and you will be successful.”

(Id. at 58.) So far as we know, this was the last performance review Mr. Olson

received before he requested FMLA leave on July 9. His leave was eventually

approved, and his last day at the warehouse was Friday, July 18.

        July 18 was also the first day of the inventory crisis that cost him his job.

        Inventory control was one of Mr. Olson’s responsibilities—he was expected to

keep accurate inventory records and prevent inventory losses. Every week he

presented an inventory report to Whirlpool, Penske’s customer for whom he did

nearly all of his work. Every month Whirlpool graded the warehouse on a scale from

A to F, depending on how much of Whirlpool’s inventory had been lost. And from

January through May of 2014, Whirlpool gave the warehouse an A.



                                           –4–
      But on July 18, Mr. Elliott received the warehouse’s grade for June: a D. He

asked Nicki Brurs, a supervisor at another warehouse, to travel to Denver to

investigate. When Ms. Brurs arrived the following week, she discovered a situation

that even Mr. Olson now refers to as a “crisis.” (Reply Br. at 20.) The warehouse’s

inventory reconciliation report—a list of known discrepancies between the

warehouse’s records and its actual inventory—was 152 lines long, with some

discrepancies dating all the way back to June.1 The warehouse had done only 37

random audits “over the last months,” and when Ms. Brurs arrived the warehouse was

567 audits behind schedule. (Appellant’s App. at 209.)

      “We will have an inventory loss here,” Ms. Brurs emailed Mr. Elliott, “but I

honestly cannot say or even lean to [sic] how much I think it will be. There are too

many holes in the inventory.” (Id. at 210.) As to the reason for the crisis, Ms. Brurs

was more confident. “There looks to be a lack of processes and training. Everyone

relied on [Mr. Olson] for everything.” (Id.)

      Soon Mr. Elliott became aware of a further problem with Mr. Olson’s

performance: dishonesty. In his last months on the job, Mr. Olson had not billed

Whirlpool for extra work—“reworks”—performed by the warehouse. (Id. at 193.)

Worried that Penske would not collect money it was owed, Mr. Elliott had asked Mr.

Olson why he had not billed Whirlpool for reworks. Mr. Olson answered that there

      1
        Mr. Olson’s counsel asked Mr. Elliott about this report, “Did [any
discrepancy in the report] jump out at you that it was really old?” (Appellant’s App.
at 443.) Mr. Elliott’s colorful response: “Jiminy Christmas. I—I’m just thinking the
enormity of it. The—it was over a hundred model . . . a hundred model numbers in
variance. So that’s what would have jumped out at me.” (Id. at 443–44.)
                                         –5–
had been no reworks to bill for. But on July 28, Mr. Elliott discovered there had been

several reworks, and he concluded that Mr. Olson had lied to him.

      By August 1, a week after receiving Ms. Brurs’ email, Mr. Elliott had made up

his mind. He sent a human resources representative, Vanessa Perry, a report

summarizing the problems he had discovered, including more dishonesty. (Id. at

204.) According to Mr. Elliott, Mr. Olson had hidden inventory losses in a “ghost

stow.” (Id. at 441.) That is, Mr. Olson had created records for an imaginary storage

location, and when he could not find inventory, he would assign it to the imaginary

location so that Whirlpool would think it was still in the warehouse. The ghost stow

had received its first “deliveries” in July of 2010; Mr. Olson had apparently been

using it to hide losses for four years. (Id. at 204.) Finally, Mr. Olson had directed his

staff not to tell Whirlpool when inventory was missing; instead he told them to report

the missing units as damaged.

      Mr. Elliott’s recommendation was straightforward: “I understand that I cannot

replace Kris while he is out on medical leave. What I want to do is bring in an

[Operations Manager] as a temporary replacement, terminate Kris his 1st day back,

‘if ever’, from medical leave and then make the temporary [Operations Manager]

permanent.”2 (Id. at 202.) Ms. Perry discussed this recommendation with Bruce

Gruebner—the human resources official responsible for approving all terminations at

Penske—and Mr. Gruebner agreed that Mr. Olson should be fired. According to Mr.

      2
        When asked about the words “if ever” in his email, Mr. Elliott testified he
had been told by Denver warehouse employees that Mr. Olson did not plan to return
to work after his leave.
                                          –6–
Gruebner’s affidavit, Mr. Olson’s “numerous and substantial instances of poor

performance were unacceptable and warranted termination.” (Id. at 176.)

      But Penske’s investigation continued, and Mr. Olson was not fired for nearly

two more weeks. First, Mr. Gruebner asked Ms. Perry to find out whether Mr. Olson

was on approved FMLA leave. Ms. Perry asked another human resources employee

about it, but for reasons not apparent from the record, she received the wrong answer.

She was told Mr. Olson’s leave had not been approved, and she forwarded that false

information to Mr. Gruebner.

      Second, Penske sent a “Loss Prevention team” to audit the warehouse more

thoroughly. (Id. at 184.) After a week at the warehouse, the loss prevention team

submitted a report describing still further problems with Mr. Olson’s job

performance. To begin with, it discovered that Mr. Olson had hidden losses in not

just one ghost stow, but “roughly 26” ghost stows. (Id.) When his employees

performed inventory audits, Mr. Olson told them to “back out” whenever they found

an error—that is, instead of reporting the error directly to Whirlpool as policy

required, they were supposed to interrupt their audit and tell Mr. Olson about the

problem. (Id.) He would then correct the inventory error before the auditors

finished, giving Whirlpool the false impression that there had been no errors to begin

with. According to the loss prevention team, “This [was] an unacceptable practice of

inventory and [Mr. Olson] was well aware of that.” (Id.)

      According to the loss prevention team’s interviews with warehouse staff, Mr.

Olson had not taught his employees basic inventory procedures. When they brought

                                         –7–
inventory problems to his attention, he told them “not to worry about it, he would

handle it,” and then did nothing to help them deal with the situation. (Id. at 184–85.)

The problems added up, and when the loss prevention team arrived, “the inventory

[had] been out of order for at least a year.” (Id. at 185.) Auditing only the

warehouse’s major appliances, the loss prevention team found more than $120,000 of

errors in the warehouse’s records and wrote off more than $41,000 of inventory

losses.3

       Finally, in addition to the inventory problems and dishonesty, Penske’s

investigation found numerous lesser failures in Mr. Olson’s performance: failure to

train his employees, failure to enforce attendance policies, failure to return damaged

items to Whirlpool, and so on. On top of it all, all the investigators (incorrectly)

believed that Mr. Olson had taken leave without approval. The loss prevention report

concluded, “Kris has checked out of this facility and our recommendation would be

immediate termination.” (Id. at 186.)

       The next business day, August 18, Penske sent Mr. Olson a letter informing

him he had been fired. It reads in relevant part as follows:

       You currently are out of work on an unapproved leave of absence . . . .
       Additionally, in the weeks you have been out, an investigation has revealed
       several deficiencies and policy violations that clearly evidence
       unsatisfactory work performance on your part, all of which have apparently
       been going on for some time now.

       3
        According to Mr. Elliott, the $41,000 loss “was almost completely
eliminated” when Penske later audited the warehouse’s minor appliances.
(Appellant’s App. at 529.) The minor-appliance records were nearly as wrong as the
major-appliance records, but in the opposite direction—understating the warehouse’s
inventory, rather than overstating it.
                                          –8–
       Due to the unapproved status of your leave of absence, coupled with a level
       of unsatisfactory job performance that cannot be tolerated, your
       employment with Penske is being terminated effective immediately.
(Id. at 188.)

       On August 19, Mr. Olson called to tell Penske his leave of absence had in fact

been approved. On August 20, Penske sent him a final letter:

       Since sending our prior correspondence . . . , it has come to our attention
       that you applied and have been approved for a continuous leave of absence
       under the Family and Medical Leave Act (“FMLA”) . . . .
       Because the severity of your performance issues and policy violations was
       not discovered until after you went out on leave of absence, in a spirit of
       fairness, if you so desire, we will rescind your termination and continue
       your employment as being on unpaid leave through October 19, 2014. . . .
       Once you have exhausted your FMLA entitlement on October 19, 2014,
       your employment would then be terminated.
(Id. at 190.) Mr. Olson did not accept Penske’s offer, and his termination remained in

effect. He was never told about the warehouse’s inventory problems or given a chance to

defend himself.

                                          ANALYSIS



       Mr. Olson contends summary judgment was inappropriate because a jury could

find his termination to be related to his leave. In order for this argument to prevail,

Mr. Olson must do more than list inferences that the district court should arguably

have drawn in his favor. He must identify facts that “establish a causal connection




                                          –9–
between [his] termination and [his] FMLA leave.”4 Campbell v. Gambro Healthcare,

Inc., 458 F.3d 1282, 1289 (10th Cir. 2007). Mr. Olson seeks to establish two such

connections.

      First, Mr. Olson argues that if he had not taken leave, he would have been at

work and able to defend his job performance. He could perhaps have argued that

some of the problems were actually the fault of his inventory clerk, who left work

suddenly a few days before he did. He could perhaps have blamed some of his

inventory problems on Mr. Elliott’s instruction to “skip” or “reduce” inventory audits

while he was understaffed. Had he not been on leave, he claims, he might have been

able to make arguments like these and save his job.

      Second, quoting one of our cases, Mr. Olson argues that he was actually fired

because he was “missing too much work” while on leave. DeFreitas v. Horizon Inv.

Mgmt. Corp., 577 F.3d 1151, 1161 (10th Cir. 2009). His absence (he says) came at a

terrible time for his employer. He left the Denver warehouse in the middle of an

inventory crisis, and consequently Ms. Brurs and Mr. Elliott were forced to travel to

Denver to do his work. Mr. Elliott spent over a month there, flying out for “a couple

of weeks” at a time and returning home only for occasional weekends. (Appellant’s

App. at 482.) Mr. Elliott may have resented the extra travel, feeling that Mr. Olson

had “abandon[ed] the foxhole” when his help was badly needed. (Reply Br. at 25.)




      4
         We therefore reject Mr. Olson’s numerous arguments that allege errors in the
district court’s reasoning but do not explain how those errors relate to causation.
                                        – 10 –
      Because he resented Mr. Olson’s absence—Mr. Olson argues—Mr. Elliott tried

from the beginning to get Mr. Olson fired and replaced. He started right away. When

he found out about the warehouse’s D grade, he did not discuss it with Mr. Olson,

even though Mr. Olson had not yet begun his leave.5 Then, within two weeks of Mr.

Olson’s departure, Mr. Elliott recommended his termination and asked to hire a

replacement immediately. Once Mr. Olson had been terminated, Mr. Elliott did in

fact hire a replacement and stopped traveling so much to Denver. The suspicious

timing of these developments, Mr. Olson argues, has “significant probative force,”

DeFreitas, 577 F.3d at 1160, especially since Mr. Olson’s performance problems

were not documented until after he requested leave.

      Each of these arguments seems plausible, but neither of them has enough

support in the record to create a genuine dispute of material fact.

      Mr. Olson argues that, but for his leave, he would have had a chance to defend

his conduct and save his job. But he cites no evidence that he would have been

allowed to defend himself, or that any defense could possibly have succeeded. By

our read, the record suggests the opposite: he would not have been allowed to defend

his conduct, and no defense could have succeeded. In particular, we note Mr. Elliott

and Mr. Gruebner’s unchallenged declarations that they are “not aware of any




      5
       Mr. Elliott testified that he did in fact discuss the D grade with Mr. Olson.
But Mr. Olson testified that he was not informed about any of the performance
problems that led to his termination. For present purposes, we resolve this dispute in
Mr. Olson’s favor.
                                         – 11 –
employee who has been found to have the same level of unsatisfactory performance

as Mr. Olson but who was not discharged.” (Id. at 179, 195.)

      Mr. Olson argues that Mr. Elliott and other Penske employees resented his

absence and wanted to fire and replace him simply because he was missing work.

But as to Mr. Elliott, there is no evidence that he considered himself inconvenienced:

travel was an ordinary part of his job. Even if he did feel inconvenienced, there is no

evidence that his inconvenience contributed to his recommendation: according to his

uncontroverted affidavit, his recommendation was “based on poor performance,

including the [inventory issues] and the reimbursement requests Mr. Olson lied to me

about.” (Id. at 194.) And even if Mr. Elliott’s inconvenience did contribute to his

own recommendation, there is no evidence that it contributed to the loss prevention

team’s recommendation or to Mr. Gruebner’s ultimate decision to fire Mr. Olson.

      As to the other Penske employees who supposedly resented Mr. Olson’s

absence and wanted him replaced, Mr. Olson does not even tell us who they are.

      In short, Mr. Elliott and Mr. Gruebner both affirm that Mr. Olson was not

terminated because of his leave, but rather because of “numerous and substantial

instances of unsatisfactory performance.” (Id. at 179, 195.) Nothing in the record

would allow a reasonable jury to doubt their word.

                                   CONCLUSION

      The record contains substantial, unchallenged evidence of Mr. Olson’s poor

job performance. Even Mr. Olson admits that Mr. Elliott “honestly believed” the

warehouse’s problems were Mr. Olson’s fault. (Reply Br. at 24.) Mr. Gruebner and

                                        – 12 –
Ms. Brurs have sworn they believed likewise, and Mr. Olson presents no evidence

that they did not.

       There is also substantial, unchallenged evidence that Mr. Olson’s poor

performance led to his termination. The record shows step by step how his

misconduct was discovered, how Penske’s employees reacted to it, and why they

ultimately decided to fire him. There are no holes, no conflicting statements, simply

nothing that indicates inaccuracies in Penske’s story. No evidence suggests that Mr.

Olson could possibly have kept his job once his misconduct was discovered, and two

affiants insisted the opposite is true—they are “not aware of any employee who has

been found to have the same level of unsatisfactory performance as Mr. Olson but

who was not discharged.” (Id. at 179, 195.)

       Mr. Olson’s arguments, even the strongest ones, simply ignore all of this.

Instead of confronting Penske’s facts, Mr. Olson speculates about facts not in

evidence. Instead of grounding his stories in the record, Mr. Olson insists we must

believe them simply because we are considering a summary judgment motion and he

is the non-moving party.

       The rules of summary judgment cannot be pushed so far. The district court’s

judgment is AFFIRMED.




                                        – 13 –
