                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 29 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    HYLA VANMEVEREN,

                Plaintiff - Appellant,

    v.                                                    No. 02-5071
                                                    (D.C. No. 00-CV-744-K)
    WHIRLPOOL CORPORATION,                             (N.D. Oklahoma)
    a Delaware corporation,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Hyla VanMeveren appeals from the district court’s grant of

judgment as a matter of law under Fed. R. Civ. P. 50(b) in favor of her employer,

defendant Whirlpool Corporation, on her complaint that it terminated her in

retaliation for exercising her rights under the Family and Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601-2654. Following a jury verdict in plaintiff’s favor,

the district court granted Whirlpool’s Rule 50(b) motion, ruling that Whirlpool

presented undisputed evidence showing that it had a lawful justification for firing

plaintiff. We affirm.

      On February 9, 2000, plaintiff was absent from work all day pursuant to a

previously submitted leave request. On February 15, 2000, plaintiff was five

hours late to work. The next day, plaintiff contacted Whirlpool managers,

seeking to have her February 9th absence counted as FMLA leave and her

February 15th absence counted as a partial, rather than full-day, absence.

Whirlpool investigated plaintiff’s February 9th absence, and terminated her on the

basis that plaintiff had lied about the time of a doctor’s appointment on

February 9th in order to obtain unwarranted FMLA leave time for her absence

that day. Plaintiff then filed a complaint, alleging Whirlpool had terminated her

in retaliation for taking FMLA leave.

      To establish a prima facie case of FMLA retaliation, a plaintiff must show

she engaged in activity protected under FMLA, subsequent adverse action by the


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employer, and a causal connection between such activity and the employer’s

action. Richmond v. ONEOK, Inc. , 120 F.3d 205, 208-09 (10th Cir. 1997).

In analyzing FMLA retaliation claims, this court applies the traditional

burden-shifting framework set forth in      McDonnell Douglas Corp. v. Green        ,

411 U.S. 792, 802-03 (1973).       Richmond, 120 F.3d at 208. Under this framework,

the defendant has an opportunity to rebut a prima facie case of retaliation by

offering legitimate non-retaliatory reasons for the adverse action.     Id. Once

defendant offers such reasons, a plaintiff must present evidence that defendant’s

reasons are unworthy of belief in order to carry his or her ultimate burden of

establishing intentional retaliation.    See Gunnell v. Utah Valley State College       , 152

F.3d 1253, 1263 (10th Cir. 1998) (explaining that plaintiff asserting retaliation

claim has the ultimate burden to demonstrate that the challenged employment

decision was the result of intentional retaliation).

       Whirlpool articulated two legitimate, non-retaliatory reasons for its

termination decision: plaintiff lied with respect to the appointment time as to the

February 9th absence, and plaintiff incurred her seventh unexcused partial

absence on February 15th, for which she was subject to automatic termination.

Whirlpool permits its employees four unexcused tardy or early leave absences in a

rolling twelve-month period; each subsequent unexcused tardy or early leave

absence results in a corrective action; any employee who receives a third


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corrective action within the rolling twelve-month period is terminated. It is

undisputed that Whirlpool strictly and consistently enforces this policy.

      Plaintiff stipulated that she had been issued two corrective actions in the

twelve months prior to February 15th, that she was late to work on February 15th

and that, if her partial absence that day was not an excused absence, she had

incurred her seventh unexcused partial absence in a year. She further stipulated

that if her absence on the 15th was unexcused, she would have properly received

her third corrective action and would have been properly terminated by

Whirlpool.

      The jury returned a verdict in plaintiff’s favor, finding (on special jury

interrogatories) that plaintiff had established a prima facie case of FMLA

retaliation, that Whirlpool had not terminated plaintiff based on its honest belief

that she had falsified the time of the appointment, and that plaintiff’s partial

absence on February 15th was not an alternative legitimate basis for her

termination. On Whirlpool’s renewed Rule 50(b) motion, the district court

granted Whirlpool judgment as a matter of law. It found, and plaintiff does not

dispute, that plaintiff presented absolutely no evidence at trial that her late arrival




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on February 15th was excused.   1
                                    Thus, the district court ruled that, as a matter of

law, Whirlpool had an alternative legitimate basis for terminating plaintiff.

      This court reviews de novo the grant of a motion for judgment as a matter

of law under Rule 50(b).   Arndt v. Koby , 309 F.3d 1247, 1250 (10th Cir. 2002),

cert. denied , 71 U.S.L.W. 3589 (U.S. May 5, 2003) (No. 02-1313). A court

should grant a defendant judgment as a matter of law “if there is no legally

sufficient evidentiary basis with respect to [the plaintiff’s] claim . . . under the

controlling law.”   Id. (quotation omitted). Judgment as a matter of law under

Rule 50(b) “is warranted only if the evidence points but one way and is

susceptible to no reasonable inferences supporting the party opposing the

motion.” Id. (quotation omitted).

      Plaintiff contends the district court improperly reweighed the jury’s finding

that her seventh unexcused partial absence was not an alternative legitimate basis

for her termination. However, because of plaintiff’s pre-trial stipulations and

admissions at trial, the only issue before the jury was whether her absence on

February 15th was an excused absence. The record supports the district court’s

finding, and plaintiff does not otherwise now argue, that plaintiff failed to present




1
      Plaintiff testified during her pre-trial deposition that her absence on
February 15th had been an excused absence and the district court denied
Whirlpool’s motion for summary judgment on this basis.

                                           -5-
any evidence at trial that her absence was excused. Thus, the district court did

not improperly weigh the evidence.

       Plaintiff next asserts that her unexcused absence is not a legitimate basis

for terminating her because Whirlpool did not articulate this alternative basis until

after she filed her complaint, more than a year after her firing. Plaintiff provides

no authority for this proposition. Whirlpool presented undisputed testimony at

trial that it was aware of plaintiff’s seventh unexcused absence when it terminated

her and would have terminated her for that absence, regardless of the alleged

falsification, but chose instead to rely upon the claimed falsification because of

the importance of honesty in Whirlpool’s work and personnel operations. This

uncontested testimony is entirely consistent with plaintiff’s stipulation that she

was subject to automatic termination as of February 15th, when she incurred her

seventh unexcused absence. We agree with the district court that the fact that

Whirlpool did not specifically articulate the unexcused absence as an additional

basis for plaintiff’s termination at the time of discharge does not mean that it was

not a legitimate reason behind its termination decision.   See Grottkau v. Sky

Climber, Inc. , 79 F.3d 70, 73 (7th Cir. 1996).

       Plaintiff maintains that the seventh unexcused absence constitutes

after-acquired evidence under    McKennon v. Nashville Banner Publishing Co.     ,

513 U.S. 352, 362-63 (1995) (holding that after-acquired evidence of wrongdoing


                                            -6-
can serve only to limit remedy, not to preclude liability altogether). The district

court properly rejected this argument because Whirlpool is not relying on

after-acquired evidence of wrongdoing. Again, Whirlpool presented undisputed

testimony that it was aware of plaintiff’s seventh unexcused absence when it

terminated her.

      Plaintiff also relies upon   Smith v. Diffee Ford-Lincoln-Mercury, Inc.   ,

298 F.3d 955, 960 (10th Cir. 2002) for the proposition that, once the jury found

that she had established a prima facie case of FMLA retaliation, the intent of the

employer becomes immaterial. She misconstrues        Smith . Smith explains that

intent is immaterial in FMLA interference cases, where the employee claims the

employer interfered with FMLA leave to which he or she was entitled. Plaintiff

has neither asserted nor proved a FMLA interference claim; rather, she has

asserted a FMLA retaliation claim, for which the employer’s intent is relevant.

See King v. Preferred Technical Group     , 166 F.3d 887, 891 (7th Cir. 1999) (cited

with approval by Smith , explaining differences between FMLA interference and

FMLA retaliation claims). Moreover, as      Smith makes clear, even under FMLA

interference claims, “‘an employee who requests FMLA leave would have no

greater protection against his or her employment being terminated for reasons not

related to his or her FMLA request than he or she did before submitting the

request.’” 298 F.3d at 960 (quoting     Gunnell , 152 F.3d at 1262).


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      In summary, because plaintiff stipulated she was subject to automatic

termination if her seventh absence was unexcused and presented no evidence

at trial that this absence was excused, no reasonable jury could have found that

Whirlpool did not have a legitimate, non-retaliatory reason for terminating her.

Thus, the district court properly granted Whirlpool judgment as a matter of law.

The judgment of the United States District Court for the Northern District of

Oklahoma is AFFIRMED.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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