United States District Court, D. New Hampshire
LANDYA McCAFFERTY, District Judge.
Jessica Fountain has sued her former employer, First Data Merchant Services ("First Data"), asserting a claim under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654. Before the court is First Data's motion for summary judgment. Fountain objects.
Standard of Review
A movant is entitled to summary judgment where he "shows that there is no genuine dispute as to any material fact and [that he] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In reviewing the record, the court construes all facts and reasonable inferences in the light most favorable to the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).
The facts are summarized from First Data's undisputed statement of material facts ("SMF") offered in support of its motion for summary judgment (doc. no. 31-1 at 2-9). These facts are not in dispute unless noted.
Fountain was hired by First Data's predecessor, EFS Card Services ("EFS"), in 1998 as an account executive. For each account executive, First Data issues an annual Regional Account Executive Sales Compensation Plan ("Compensation Plan"), which sets forth the terms of compensation and performance goals of the account executive. At all times relevant to this matter, Fountain worked remotely, with a company laptop and phone.
From at least 2004, when First Data acquired EFS, through 2011, Fountain was a "strong performer, and exceeded 100% of her Compensation Plan performance standards." SMF ¶ 7. In 2010, Fountain produced some of the strongest sales numbers in the company.
While she was a strong performer, First Data twice granted Fountain intermittent leave under the FMLA. Fountain first took FMLA leave in September 2009, when she experienced personal health issues, and she took her second FMLA leave in April 2011, to care for her son. Fountain's second leave ended in October 2011.
In late 2011, Regional Sales Director Jared Kirkpatrick became Fountain's direct supervisor. A few months later, in February 2012, First Data granted Fountain a third intermittent FMLA leave, again to care for her son. During her third FMLA leave, Fountain took time off in February, March, June, and July 2012. Fountain's third leave ended in August 2012.
Beginning in January 2012, Fountain's performance began to fall off. Fountain did not meet 80% of her revenue goal in January, and she continued to struggle generating revenue thereafter.
In May 2012, in an effort to assist Fountain in improving her revenue, Kirkpatrick proposed weekly one-on-one calls and visited Fountain. Throughout the middle of 2012, however, Fountain's revenue numbers continued to languish below 80% of her revenue goal. It appears, however, that Kirkpatrick had failed at this time to adjust Fountain's revenue goals to account for her FMLA leave.
On October 10, 2012, Kirkpatrick issued Fountain a 90-day Improvement Action Plan ("IAP"). An IAP is First Data's final disciplinary step before discharging an employee. It provides an action plan for the employee, including specific goals and expectations aimed at assisting improvement.
Fountain failed to comply with some of the expectations set forth in the IAP, and her sales numbers declined after receiving the IAP, falling below 50% of her revenue goal for October, November, and December. On January 9, 2013, the day before Fountain's 90-day IAP period was to conclude, Kirkpatrick sent an email to his supervisors and First Data's Human Resources Department regarding Fountain's performance. The email, ...