TIMOTHY J. CORRIGAN, District Judge.
This Employment Retirement Income Security Act ("ERISA") and Family and Medical Leave Act ("FMLA") retaliation case is before the Court on Defendants Baker County Medical Services, Inc. ("BCMS") and Dennis Markos's Dispositive Motion for Summary Judgment. (Doc. 33). Plaintiff Kim Marx filed a response.
BCMS is a twenty-five bed, not-for-profit hospital in Baker County, Florida, where Markos served as chief executive officer between 1994 and January 3, 2017. (Doc. 33 at 3; Doc. 33-10, Markos Dep. 6:20-7:18, 10:6-10, 40:24-41:3).
According to BCMS's Human Resources Director, Stacey Conner, BCMS has a progressive discipline policy, whereby discipline may be verbal or written, or result in suspension or termination. (Doc. 34-10, Conner Dep. 8:24-9:2, 46:5-48:16). Based on the severity of an employee's infraction, the hospital would reserve the right to skip steps of progressive discipline and go directly to termination. (Conner Dep. 48:13-16). For instance, an action that resulted in patient injury, or had a detrimental effect on the organization or its employees, could be considered serious enough to discharge an employee—even for a first offense. (Markos Dep. 94:2-4, 139:1-9; Doc. 33-11, V. Markos Dep. 89:22-90:19). During his tenure with BCMS, Marx received positive performance reviews and had no formal written disciplinary action or other adverse actions taken against him prior to his termination. (Markos Dep. 108:12-15; Marx Dep. 92:8-95:5).
BCMS provides health benefits to its employees under the Employee Health Benefits Plan (the "Plan"), which is partially self-funded from a monthly premium paid by employees. (Markos Dep. 21:4-22:15). In addition, BCMS purchases stop-gap insurance to protect against extraordinary expenses. Under this insurance, BCMS pays the first $60,000 of a claim, after which the insurance is responsible. (Markos Dep. 14:14-15:11). During the time period at issue, a third party administrator ("TPA"), Preferred Benefit Administrators, Inc. managed the daily activities of the Plan and submitted a weekly funding request based on its claims administration for the week. (Markos Dep. 23:1-4, 34:4-9). The hospital's controller and chief financial officer reviewed and approved the weekly funding request, without input from Markos. (Markos Dep. 32:8-16; Doc. 33-12, Martin Dep. 31:20-32:17).
Both Marx and his wife, Debora Marx, were covered participants under the Plan while Marx worked at BCMS. (Marx Dep. 52:19-53:1). During his employment, Marx underwent numerous medical procedures covered by the Plan, including a microwave transurethral resection in 2008 (Marx Dep. 129:11-20), arthroscopic knee operations in 2010 (Marx Dep. 88:11-22), ACDF neck cervical surgery in 2011 (Marx Dep. 89:18-24), and a cardiac catheterization procedure in 2012 (Marx Dep. 119:1-14), among others (see Doc. 33 at 6). Ms. Marx, too, had several procedures covered by the Plan, including a laminectomy in 2011 (Marx. Dep. 90:6-12; Doc. 33-13, D. Marx Dep. 28:14-21), hand surgery resulting from a slip and fall in 2011 (Marx Dep. 90:24-91:4; D. Marx Dep. 28:25-29:4), and a gallbladder removal in 2012 (D. Marx Dep. 26:7-11), among other procedures like endoscopies and colonoscopies (D. Marx Dep. 26:12-13, 28:9-11). Ms. Marx testified that, other than some issues related to her slip and fall, discussed below, there were never any problems concerning payment of these expenses. (D. Marx Dep. 38:7-21). And, even after some controversy, the bill related to her slip and fall was also paid in full. (D. Marx Dep. 38:22-39:4). During Marx's time at BCMS, the TPA never submitted a bill to BCMS where someone determined that it should not be paid, (Markos Dep. 34:10-14, 59:20-24; Marx Dep. 249:3-250:4), and Markos approved every leave request in his thirty-eight years of administration (Markos Dep. 88:1-2). Further, Markos was aware of the Marxes' surgeries over the years. (Markos Dep. 67:21-68:6). Markos also knew Marx had knee ailments which would eventually require surgery. (Markos Dep. 68:7-69:22, 82:13-85:20).
In 2011, on the same day as Marx's neck surgery, Ms. Marx slipped and fell in the parking garage at St. Vincent's Hospital. (D. Marx Dep. 31:4-6). She injured herself, requiring hand surgery. (D. Marx Dep. 31:7-16). Marx was concerned that Ms. Marx's accident was at least partly St. Vincent's responsibility, so he spoke to Derek Merrill, the risk manager for St. Vincent's. (Marx. Dep. 69:7-15). Marx thought St. Vincent's liability should be determined before BCMS paid Ms. Marx's bill, so Marx also relayed his concern to Markos and Tricia Martin, BCMS's controller from June 2008 to January 2017 and later its chief financial officer until October 2017. (Marx Dep. 74:9-16, 77:13-19; Markos Dep. 74:1-4; Martin Dep. 7:10-19, 40:9-25). After hearing about Marx's concerns, Markos directed Martin to tell the TPA not to pay the claims regarding Ms. Marx's bill, which Martin stated was the only time Markos instructed her not to pay a claim.
In 2012, BCMS undertook a conversion of its electronic health records to a new system and selected the vendor Meditech to implement the project. (Markos Dep. 97:5-98:2). BCMS's information technology director, Earnest Waller, was in charge of the transition. (Markos Dep. 131:12-13). The project was to be implemented "very fast" and in two phases, with the goal of meeting critical government deadlines so that BCMS could obtain Centers for Medicare and Medicaid Services' meaningful use reimbursement. (V. Markos Dep. 13:19-25, 15:4-23; Marx Dep. 162:4-11). The reimbursement was worth approximately $1.25 million. (Doc. 33-6, CMMS Status Information Regarding EHR Reimbursement; Markos Dep. 112:7-19). The go-live deadline for Phase I was April 1, 2013. (Doc. 33-16, Waller Dep. 197:16-20, 228:20-22). Each department head at BCMS was told of the time-sensitive nature of the project and was responsible for the Meditech module in his department, including building directories and dictionaries, and ensuring compatibility with the other systems at the hospital.
Marx was in charge of the respiratory department and chose Diane Sweat, a sleep lab employee with clerical skills but no experience with the Meditech software, to assist him with the conversion process. (Marx Dep. 177:16-180:10). Marx attended Meditech training sessions in Boston at least four times. (Marx Dep. 199:7-8). Although Meditech recommended Imaging and Therapeutic Services ("ITS") software for the respiratory department, Marx disagreed with the recommendation because he thought it was not appropriate for his department's needs. Instead, he told Waller he believed the OM and PCS modules would work better, and Waller accepted Marx's judgment because, as its leader, Marx was most knowledgeable about the respiratory department. (Waller Dep. 279:2-281:2). In addition to Sweat, Ms. Markos and the nursing staff assisted Marx in building the directories in OM. (Marx Dep. 197:25-198:6; V. Markos Dep. 88:2-9).
Markos testified that he received reports that Marx had a negative attitude about the Meditech project from the beginning. (Markos Dep. 109:24-110:24, 112:1-6; V. Markos Dep 83:13-19). Marx had an admittedly difficult time, stating that he did not have the resources, talent, knowledge, or support to properly implement the conversion in his department. (Marx Dep. 177:7-15; V. Markos Dep. 86:25-88:9, 97:12-24). Ms. Markos characterized Marx's attitude at Meditech's ITS training as "negative" and "unwilling to continue the training and learn what was necessary and ask the proper questions for his department." (V. Markos Dep. 83:7-19). In addition, Sweat and respiratory employees Dell Lee and Nikki Harvey notified Waller that they did not feel prepared for the go-live deadline. (Lee Dec., Doc. 33-8 ¶ 3; Waller Dep. 362:13-364:22, 373:1-7, 383:14-23). Sweat, Harvey, Elizabeth Gray, and Lee also complained to Marx about the conversion. (Marx Dep. 203:13-204:9, 213:1-12).
Although at various core team meetings Marx stated that things were "great" in the respiratory department, (Martin Dep. 92:3-94:11), Marx belatedly realized that OM and PCS were not suited for the respiratory department's needs because those systems could not automatically advise staff that an order for respiratory work had been placed, (Marx Dep. 173:22-175:5). Thus, he met with Waller and Ms. Markos in March 2013 to address this issue, resulting in a decision to use the ITS module originally recommended by Meditech. (Marx. Dep. 175:5). On March 30-31, 2013, Marx wrote the ITS dictionaries in anticipation of the April 1, 2013 go-live date for Phase I. (Marx Dep. 176:8-177:2).
Long before and during the Meditech conversion, Marx had discussed his knee ailments with Markos many times, including several times in the year prior to his termination. (Doc. 34-2, Marx Aff. ¶ 12; Markos Dep. 68:7-69:22, 80:25-81:23). Approximately two weeks prior to his termination and after the Phase I deadline, Marx met with Markos and told him that he required knee surgery and asked for leave to obtain treatment.
Despite Marx's efforts at the end of March 2013 to build the ITS system, there were equipment and software issues remaining in the respiratory department before the Phase I deadline, such as problems with a blood gas technological interface, and charges not dropping into the billing system. (Waller Dep. 229:10-17). Thus, according to Waller, the respiratory department was not ready on the go-live date. (Waller Dep. 240:1-246:25; V. Markos Dep. 65:12-15, 66:18-67:24).
Waller viewed Marx as the reason the system was not working properly "in that [Marx] did not meet the deadlines on certain things and [made] decisions right at the last minute." (Waller Dep. 281:11-17). He spoke with Markos about Marx's progress on the Meditech project periodically, at least half a dozen times. (Markos Dep. 139:10-19, 147:13-148:16). On April 10, 2013, Waller spoke to Markos about his dissatisfaction with Marx's performance on the project after the April 1, 2013 Phase I go-live date. (Waller Dep. 282:16-284:6, 372:9-17). After their meeting that day, Waller memorialized his concerns in a memorandum to Markos. (Waller Memo., Doc. 33-7 at 4-5). Waller opined that Marx should not stay in charge of the Phase II implementation, as it would lead to the "same result" and "the final depletion of any morale left within his staff." (Doc. 33-7 at 5, Waller Memo.). In addition, Markos asked other BCMS employees for their input on the issues that led to Marx's discharge, and after receiving it, asked them to memorialize their statements in writing. (Markos Dep. 125:7-18, 127:10-16; Doc. 33-7, Markos Dec. at 12-15).
On April 12, 2013, Marx was called to Markos's office, where he met with Markos and Conner. (Marx. Dep. 214:8-215:5). At that meeting, Markos terminated Marx. (Markos Dep. 12:23-13:1, 124:2-17, 152:1-25). Markos testified that he terminated Marx for his failure to timely implement the Meditech software in the respiratory department and his "obstructionistic, negative" approach to the "mission critical" project. (Markos Dep. 114:1-115:3, 125:4-126:9, 155:13-19, 161:10-25). Specifically, Markos noted the "severe" complaints against Marx being unwilling to do his job and get the respiratory department's conversion completed, that the Meditech project was approaching the meaningful use deadline, and that Marx was going to cost the hospital approximately $1 million if the timeline was not met. (Markos Dep. 111:19-112:19). Marx's failure to complete an assignment which would cost BCMS $1 million fell within the personnel policy of "detrimental to the organization," allowing Markos to terminate him for a first time offense. (Markos Dep. 133:10-17, 139:4-9). Marx testified that at the termination meeting, Markos stated that there "were problems in [the respiratory] department and we have had problems with your [Marx's] computer; you need to leave now," (Marx Dep. 253:1-7), though Marx states that he did not know what Markos was talking about, as they did not have a discussion about his termination, (Marx Dep. 233:7-14, 253:8-16). Markos testified that at the termination meeting, he indicated that Marx was not performing up to his expected level and made a remark about the computer system. (Markos Dep. 152: 11-19). Markos permitted Marx to fill a prescription at the BCMS pharmacy before leaving the premises. (Markos Dep. 152:22-25).
On December 13, 2013, Marx sent Markos an email entitled "Best wishes for the new year":
(Doc. 33-7 at 16).
On April 18, 2016, Marx filed a two-count complaint alleging a violation of Section 510 of ERISA (Count I) and unlawful retaliation and violation of the FMLA, 29 U.S.C. § 2601 et seq. (Count II) (Doc. 1).
Summary judgment is proper where "there is no genuine issue as to any material fact" and "the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The burden of demonstrating the satisfaction of this standard lies with the movant, who must present pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that establish the absence of any genuine material, factual dispute."
In determining whether summary judgment is appropriate, a court must draw inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor.
Section 510 of ERISA provides:
29 U.S.C. § 1140. A plaintiff bringing an action under § 510 must show that the employer had the "specific intent to interfere with the employee's right to benefits."
Thus, "in the context of a § 510 claim alleging unlawful discharge, [Marx] may establish a prima facie case of discrimination by showing (1) that he is entitled to ERISA's protection, (2) was qualified for the position, and (3) was discharged under circumstances that give rise to an inference of discrimination."
If the plaintiff successfully establishes the prima facie case, a presumption is created "that the employer unlawfully discriminated against the employee."
The FMLA grants eligible employees the right to "12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee," 29 U.S.C. § 2612(a)(1), and the right following leave "to be restored by the employer to the position of employment held by the employee when the leave commenced" or to an equivalent position, 29 U.S.C. § 2614(a)(1).
Here, Marx has brought only a retaliation claim against Defendants. Thus, to succeed on this claim, Marx must demonstrate that Defendants intentionally discriminated against him in the form of an adverse employment action for having exercised an FMLA right.
Absent direct evidence of the defendant's intent, courts evaluate FMLA retaliation claims under the burden-shifting framework set forth in
"To establish a prima facie case of FMLA retaliation, the plaintiff must show that (1) he engaged in statutorily protected conduct, (2) he suffered a materially adverse action, and (3) the adverse action was causally related to the protected conduct."
If Marx is able to present a prima facie case, the burden shifts to Defendants to articulate a legitimate, non-discriminatory reason for the adverse action.
Even if a plaintiff's case fails under the
Defendants do not dispute that Marx has established the first two prongs of his prima facie case under the ERISA and FMLA standards. However, Defendants contend that Marx has failed to establish the third elements: termination under circumstances giving rise to an inference of discrimination under ERISA, and a causal connection between the protected activity and the adverse action under the FMLA.
It is undisputed that Markos was aware of the protected conduct (requesting knee surgery) at the time of the adverse action (terminating Marx).
While "mere temporal proximity," without more, "must be very close,"
Defendants have met their burden to produce legitimate, non-retaliatory reasons for Marx's termination.
Marx argues that Defendants' proffered reason for terminating him is pretextual, and that he was terminated in retaliation for exercising his ERISA and FMLA rights. To show pretext, Marx must "come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision."
In the absence of direct evidence of retaliation, Marx's response essentially blends the
The undisputed evidence shows that on April 10, 2013, after Marx requested surgery and two days before his termination, Waller met with Markos and voiced his disapproval regarding Marx's performance on the project. (Waller Dep. 282:16-284:6, 372:9-17). The same day, Waller submitted to Markos a memorandum entitled "Overall Evaluation of the Respiratory Preparation and Execution of Phase I: Respiratory Directors [sic] Performance," which noted that Marx was "disruptive and negative" at Meditech training; declined ITS onsite training; was talking and not listening according to other users in the training classes; stated that he had not been trained, despite receiving more help than any other department; had not taken a leadership role in getting his equipment interfaced with Meditech; and had to back pedal and do the respiratory department's charges in ITS, which should have been done much earlier. (Doc. 33-7 at 4-5, Waller Memo.). In addition, Marx's staff approached Waller and expressed their confusion about the Meditech conversion, stating that they had "no idea what to do." (
After conferring with Waller and reading his memo, Markos sought other BCMS employees' feedback about Marx's work on the Meditech project "to see if [he] had grounds to terminate, to justifiably terminate [Marx]." (Markos Dep. 125:7-22). The respiratory department was "the one that was behind. . . . All the other departments were up to snuff." (Markos Dep. 125:25-126:3). Markos also obtained post-termination memoranda describing Marx's performance which memorialized the pre-termination discussions between Markos and the other BCMS employees. (Doc. 33-7 at 12-15; Markos Dep. 125:7-12).
For example, Ms. Markos observed that over the course of the Meditech project, "there have been several issues with Kim Marx and his not understanding or willing to be instructed on the actual steps necessary to make his department work." (Doc. 33-7 at 12). She noted that although Marx received ample assistance on the project from the nursing staff, he repeatedly stated that he did not know how to perform certain tasks and "nobody ever showed him what to do." In addition, Ms. Markos recalled that "after [the Meditech system] went live, . . . none of his staff had been trained on how to use the system to place charges and complete orders."
Clarice Nazworth, a member of the core team on the Meditech project and a chart auditor, also provided Markos with a memorandum on Marx's performance on the Meditech conversion. (Doc. 33-7 at 13-14).
In addition to Ms. Markos and Nazworth's memoranda, Jeremy Sands, a registered nurse, also wrote a memorandum on April 15, 2013, which noted that he personally offered, assisted, and worked with the respiratory department multiple times to help it achieve the Meditech project's goals. (Doc. 33-7 at 15).
On April 12, 2013, after obtaining input from BCMS employees, Markos terminated Marx for his failure to timely implement the Meditech software in the respiratory department and his "obstructionistic, negative" approach to the project. (Markos Dep. 114:1-115:3, 124:22-126:9, 155:13-19, 161:10-25). While Markos may not have been crystal clear in offering reasons for termination at the time he fired Marx, he mentioned that it related to Marx's computer and problems in the respiratory department.
Other than the temporal proximity between their meeting in which he requested leave and his termination—insufficient on its own to show pretext— Marx has simply not presented a genuine issue of material fact that Markos fired him for any reason other than Marx's subpar performance in attempting to lead the respiratory department through the Meditech conversion. In the Eleventh Circuit, the court does not "sit as a `super-personnel department,' and it is not [the court's] role to second-guess the wisdom of an employer's business decisions—indeed the wisdom of them is irrelevant—as long as those decisions were not made with a discriminatory motive."
Marx also argues that Markos's "hostility" toward employees' health claims is evidence of pretext. Marx identifies various statements which he argues "reflect [Markos's] belief that the premiums paid by employees into self-insured [sic] health insurance plan at BCMS, is [sic] his money." (Doc. 34 at 4) (citing Marx Dep. 61:3-16, 66-67, 93-96, 100-104; Marx Aff. ¶ 26). In addition, Marx asserts that Markos's ability to monitor insurance claims and prescriptions, access to BCMS's medical records, and authority to direct the TPA to not pay a health claim constitute evidence that he was terminated in retaliation for exercising his statutory rights. (Doc. 34 at 4). However, Marx fails to cite any evidence that Markos was actually monitoring the claims he and his wife made under the Plan, that Markos exhibited resentment regarding their claims,
Similarly, Marx argues that Markos demonstrated "specific hostility towards Mr. Marx regarding his wife's prior claims." (Doc. 34 at 19). While the evidence reflects that Markos was involved in the delay in paying Ms. Marx's claim for her hand surgery, he only became involved following Marx's unsolicited suggestion that Markos postpone paying the bill because St. Vincent's might be liable in tort. Further, even after the delay, while Marx determined whether to sue St. Vincent's and conferred with Markos and BCMS's attorney, Ms. Marx's bill was eventually paid in full. Although Marx believes that the controversy surrounding payment of the bill affected his relationship with Markos, Marx presents no evidence that Markos harbored a grudge against him following the incident. To the contrary, Marx underwent additional medical procedures, such as two cardiac catheterizations and a stent procedure, following the slip and fall which were covered by the Plan, with no interference from Markos regarding payment or otherwise.
Moreover, the events surrounding the slip and fall occurred in 2011, approximately eighteen months prior to Marx's termination in April 2013. As such, in addition to the foregoing reasons, these events are too remote to constitute evidence of pretext.
Marx also raises several issues with the implementation and mismanagement of the Meditech project, from its timing to a lack of direction from Waller to a lack of professional talent on site. (Doc. 34 at 12-16; Doc. 39 at 2-5). Regardless of whether Marx felt the Meditech project could have been handled in a more professional or efficient way, he fails to meet Defendants' reason for terminating him "head on and rebut it."
Although Marx contends he has presented a convincing mosaic of evidence such that his case should survive summary judgment, he has failed to meet this burden.
Accordingly, it is hereby
1. Defendants' Dispositive Motion for Summary Judgment (Doc. 33) is
2. The Clerk shall enter judgment in favor of Defendant Baker County Medical Services, Inc., d/b/a Ed Fraser Memorial Hospital and Defendant Dennis Markos and against Plaintiff Kim Marx.
3. Once judgment has been entered, the Clerk shall terminate all deadlines and pending motions, and close the file.
Martin, too, testified that Marx came to her and said he thought St. Vincent's might be responsible for the bill. However, she testified that Markos told her not to pay the bill, which is slightly different than Markos's account, but the overall gist of their testimony is the same.