KEVIN H. SHARP, District Judge.
In this employment discrimination action, Plaintiff Flora Parkhurst sues her former employer, Defendant American Healthways Services, LLC, under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), the Americans with Disabilities Act of 1990, as amended by the Americans with Disabilities Act Amendments Act of 2008, 42 U.S.C. §§ 12101 et seq. ("ADA"), and the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq. ("FMLA"). Now before the Court is Defendant's Motion for Summary Judgment (Docket No. 26), to which Plaintiff has responded in opposition (Docket No. 38) and Defendant has replied (Docket No. 40). For the reasons that follow, Defendant's Motion will be granted.
In support of its Motion for Summary Judgment, Defendant submitted 69-paragraphs of facts, only 7 of which are disputed by Plaintiff in whole or in part. Those facts are as follows.
Defendant is a wellness company that contracts with employers and health insurers to provide wellness programs to their employees and insureds, respectively. The individuals enrolled in Defendant's wellness programs are referred to internally as "members."
On December 2, 2002, Defendant hired Plaintiff to work as a Telephonic Nurse in its Well-Being Improvement Center ("WBIC") in Franklin, Tennessee. The WBIC is one of Defendant's call centers from which telephonic Nurses provide clinical advice to members over the telephone, particularly those who suffer from chronic diseases like heart disease or diabetes. Because they provide clinical advice to members, Telephonic Nurses are required to hold and maintain a Registered Nurse license.
A Telephonic Nurses' productivity was evaluated by Defendant using a metrics-based system that considered: (1) call attempts per hour, (2) successful calls per hour, (3) call handle time, and (4) time on dialer. The first measured how many calls a Telephonic Nurse attempted to make to members every hour; the second measured how many calls a Telephonic Nurse successfully completed with members each hour
On January 28, 2013, Lori Koyuncu, a 47 year old female, became Plaintiff's first level supervisor. Ms. Koyuncu also supervised 16 other Telephonic Nurses who ranged in age from 39 to 74. Eleven were within 10 years of Plaintiff's age, which is 62.
On November 6, 2013, Ms. Koyuncu placed Plaintiff on a Written Performance Improvement Plan ("November Written PIP") because, during the prior month, Plaintiff made 3.17 call attempts per hour and 0.51 successful calls per hour. Both figures were below the required 5.55 call attempts per hour and 1.05 successful calls per hour. The November Written PIP outlined a productivity improvement plan whereby, over the course of four weeks, Plaintiff would reach the required number of call attempts and successful calls per hour. Following receipt of the PIP, Plaintiff's productivity improved somewhat, but she never reached the minimum requirements for call attempts and successful calls per hour:
(Docket No. 28 at 8).
On January 17, 2014. Koyuncu placed Plaintiff on another Written PIP ("January Written PIP"). Plaintiff concedes she was placed on this PIP but claims that "Defendant's computer system was often broken and/or would collect inaccurate data," and this "led to the delay/extension of Plaintiff's PIP period." (Docket No. 39 at 6). The January Written PIP outlined a productivity improvement plan whereby, over the course of six weeks, Plaintiff's call attempts would rise to 8.0 per hour and successful calls would rise to 1.5 per hour. Following receipt of the January Written PIP, Plaintiff's productivity, however, remained largely unchanged:
(Docket No. 28 at 9).
Allegedly due to her lackluster performance, Plaintiff was placed on a Final Written PIP on February 11, 2014. This PIP provided Plaintiff with a two-week period in which to achieve the required 8.0 call attempts per hour and 1.50 successful calls per hour.
Overall, from December 30, 2013 to February 22, 2014, Plaintiff averaged only 4.07 call attempts per hour and 0.87 successful calls per hour, well below the requirements. On February 25, 2014, Defendant terminated Plaintiff's employment purportedly for poor performance. After Plaintiff's termination, Defendant claims that her position was eliminated, her duties were absorbed by existing staff, and she was never replaced.
During the time that Plaintiff was under Ms. Koyuncu's supervision, Plaintiff suffered from an abnormal heart rhythm. In fact, in October 2013, she underwent a cardiac ablation to address the problem, which required an overnight hospital stay. Plaintiff provided Ms. Koyuncu with advanced notice of this procedure and her need to be absent from work. Plaintiff requested, and was granted, FMLA leave from October 11, 2013, until October 21, 2013
The administration of FMLA was outsourced by Defendant to Liberty Mutual, a third party. Defendant claims that whenever an employee needed to take FMLA leave, he or she was required to submit an application directly to Liberty Mutual. Liberty Mutual would then communicate directly with the employee and his or her physicians to gather necessary information and decide whether to approve or deny the request. Plaintiff disputes this, claiming that she was required to submit her FMLA applications directly to Ms. Koyuncu for her signature. She also claims that, on multiple occasions, Ms. Koyuncu did not return the paperwork, thereby precluding Plaintiff from submitting the paperwork to Liberty Mutual.
During her employment with Defendant, Plaintiff applied for FMLA leave on at least 10 occasions, four of which occurred while Ms. Koyuncu supervised her. Of those four, two were approved; once for intermittent leave, and the other for the regular FMLA for the heart procedure referenced previously. The other two were denied because Plaintiff did not submit the necessary documentation.
Mozelle Smith, a 53 year old co-worker, also took FMLA leave while supervised by Ms. Koyuncu. Ms. Smith was placed on a performance improvement plan at approximately the same time as Plaintiff, albeit for slightly different productivity concerns. After being put on a performance improvement plan, her productivity improved and she successfully completed the plan.
Plaintiff claims that sometime in or around November 2013, Ms. Koyuncu began making disparaging comments about Plaintiff's age, health, and use of FMLA leave. Such statements included:
(Docket No. 29-4, Plf. Depo. at 43, 125, 146 & 177).
The standards governing the review of motions for summary judgment are well-known. In fact, Plaintiff spends 2½ pages of her response brief setting forth those standards
Given the parties' understanding of the standards, it suffices to note that a party may obtain summary judgment if the evidence establishes there are no genuine issues of material fact for trial and the moving party is entitled to judgment as a matter of law.
All three claims brought by Plaintiff are subject to the same analytical framework. That is, she can attempt to prove her ADA, ADEA, and FMLA claims through either direct or circumstantial evidence, with the latter involving use of the
Plaintiff points to a number of statement Ms. Koyuncu allegedly made beginning shortly after Plaintiff was placed on her first performance improvement plan. None of those statements, if in fact uttered by Ms. Koyuncu, constitutes direct evidence.
In the Sixth Circuit,
Ms. Koyuncu is alleged to have made the remarks in the context of performance reviews. Indeed remarks like "the reason you're not meeting your metrics is probably because you're not feeling well," and, "at your age. . . it's hard to keep up," is more easily seen as an assuaging and explanatory reason for Plaintiff's performance than as a proxy to terminate her because of her age or health.
As noted, in the absence of direct evidence, a plaintiff may attempt to prove discrimination based upon the
The ADA provides that a covered employer "shall [not] discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To establish a prima facie case, "a plaintiff must show that `1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced.'"
For purposes of its summary judgment Motion, Defendant concedes that Plaintiff was disabled and it had reason to know of that disability, and that Plaintiff suffered an adverse employment action. It claims, however, that Plaintiff cannot show she was qualified for the position she held, or that she was replaced.
Turning to the qualified element, the Sixth Circuit in
317 F.3d at 575-76 (italics in original). From this prism, Plaintiff was qualified because she was a licensed Registered Nurse and had held the Telephonic Nurse position for many years. Additionally, according to her Affidavit, Plaintiff trained and mentored other employees, and was member of an elite call team. Plaintiff has shown she was qualified for purposes of her prima facie case.
In so ruling, the Court recognizes that some cases say that "[t]o establish this element, a plaintiff must show that her performance met her employer's legitimate expectations at the time of her discharge."
"[A] court may not consider the employer's alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case," because "[t]o do so would bypass the burden-shifting analysis and deprive the plaintiff of the opportunity to show that the nondiscriminatory reason was in actuality a pretext designed to mask discrimination."
As for the fifth element, "`[a] person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work.'"
Defendant claims Plaintiff was not replaced following termination. This proposition is supported solely by an Affidavit from Courtney Walters, one of its Senior Human Resources Managers, in which she simply states that after Plaintiff was fired, "her duties were absorbed by existing employees, her position was eliminated, and she was never replaced." (Docket 29-3, Walters Aff. ¶ 33). In response, Plaintiff has submitted her own Affidavit in which she claims that "Defendant changed and reorganized its teams very frequently" (Docket No. 38-1, Pf. Depo. ¶ 16), a point she also made in her deposition. Given the sparse evidentiary record, the Court is not in a position to determine as a matter of law and fact that Plaintiff was not replaced and there remains a genuine issue of fact on this issue.
While Plaintiff has met the "not onerous" standard of a prima facie case, her ADA claim fails because Defendant has proffered a legitimate non-discriminatory reason for its decision, which Plaintiff has not shown to be pretextual.
Defendant claims Plaintiff was terminated because she did not meet the metrics. Clearly, "[p]oor performance is a legitimate, nondiscriminatory reason for terminating a person's employment,"
"When an employer offers nondiscriminatory reasons for an adverse employment action, the burden shifts back to the employee to prove that the stated reason for her termination is pretextual."
Here, Plaintiff asserts that her poor performance did not actually motivate Defendant's termination decision. Rather, her termination was as a result of her disability because Ms. Koyuncu allegedly made repeated references about her health, which began shortly after her Cardiac Ablation procedure.
"For a `did not actually motivate' theory of pretext, `the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal[.]'"
Plaintiff's evidence does not establish a genuine issue of material fact on whether Defendant's stated reasons "did not actually motivate" its decision to terminate her employment. Leaving aside that none of the comments were about Plaintiff's alleged disability, the comments about her health were made in the context of performance discussions and were raised as possible explanations for Plaintiff's undisputed and documented performance deficiencies. True, the comments allegedly began within weeks of Plaintiff's overnight hospital stay when Plaintiff was placed on her first PIP, but "a negative performance evaluation does not constitute an adverse employment action, unless the evaluation has an adverse impact on an employee's wages or salary,"
Plaintiff suffered an adverse employment action when she was terminated some five months after she took FMLA leave. This is hardly a conclusive temporal link.
"Pretext is a commonsense inquiry: did the employer fire the employee for the stated reason or not?"
Much of the foregoing has equal applicability to Plaintiff's ADEA and FMLA claims, recognizing, of course that the elements of a prima facie case are different. In fact, the parties raise virtually the same argument in support of, and in response to, Defendants' Motion for Summary Judgment on these claims.
To establish a prima facie case of age discrimination, Plaintiff must show that she "(1) was a member of a protected class of persons (i.e., persons 40 years of age or over), (2) was discharged, (3) was qualified for the position held, and (4) was replaced by someone outside of the protected class."
As with the ADA claim, Defendant asserts that Plaintiff cannot show that she was qualified or that she was replaced. For the reasons already expressed, however, the Court finds those arguments unconvincing.
Whether Plaintiff has established a prima facie case of FMLA retaliation presents a closer question because she must establish a causal connection between her taking of FMLA leave and her termination. She attempts to do so by showing that she was fired approximately 5 months after she took FMLA leave, which, as already noted, is not particularly persuasive. Still, and as also noted, the burden of establishing a prima facie case is not onerous and there is more leeway in considering temporal proximity to show a causal connection than there is to establish pretext.
Accepting that Plaintiff has established a prima facie case of age discrimination and FMLA retaliation, those claims again fail at the second and third stages of the
Additionally, Plaintiff's suggestion that her employment was terminated because of age-based animus is under cut by the fact that ten of the sixteen other Telephonic Nurses under Ms. Koyuncu's supervision were aged 59 or over, three of whom still work for Defendant, and four of whom (including a 74 year old) were successful performers who voluntarily resigned. And her suggestion that she was terminated because she took FMLA leave is undercut by the fact that Ms. Smith (who Plaintiff identified as a comparator in her discovery responses) took FMLA leave, was placed on a PIP, and continued to be employed after she successfully completed the plan.
On the basis of the foregoing, the Court will enter an Order granting summary judgment on all of Plaintiff's claims.
This Court agrees because "evidence is evidence,"
