BILLY T. GREEN v. CHRISTUS SPOHN HEALTH SYSTEM
CIVIL ACTION NO. 2:18-CV-64
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION
June 13, 2019
Jason B. Libby, United States Magistrate Judge
ENTERED June 13, 2019 David J. Bradley, Clerk
Plaintiff Billy Green brings this suit against his former employer, Defendant Christus Spohn Health System Corporation, alleging violations of the Family Medical Leave Act (“FMLA”). (D.E. 10). This action was referred to the undersigned United States Magistrate Judge for pretrial purposes in accordance with
I. BACKGROUND
Plaintiff was employed by Defendant as a Pharmacy Informaticist in the Health Informatics Department from June 2013 until his termination on December 16, 2016. (D.E. 41-1, Page 2). During this time, in May 2015, Erica Rangel Chapa, RN (“Chapa”)
On June 17, 2016, Leslie Stewart, System Director for Clinical Informatics and Chapa and Saucedo’s superior, forwarded to Chapa and Saucedo an email sent by Plaintiff to the Health Informatics Department, but not to Chapa or Saucedo, regarding system performance issues. (D.E. 41-1, Pages 10-12). When forwarding the email, Stewart asked both Saucedo and Chapa if they were aware of Plaintiff distributing the email, whether there was a response to the issues presented therein and whether Plaintiff’s issues were appropriately escalated. (D.E. 41-1, Page 11 and D.E. 41-2, Pages 24-25). Chapa responded to Stewart that Plaintiff’s concerns were being addressed and
On July 8, 2016, Plaintiff sent a message using LinkedIn to Dr. Luke Webster, Defendant’s Chief Medical Information Officer (CMIO), suggesting several operational changes regarding where to locate new medical clinics. (D.E. 41-2, Pages 25-26 and 67). Saucedo found Plaintiff’s LinkedIn message to be inappropriate because Plaintiff again bypassed the chain of command by failing to address the issue with his immediate supervisors and for giving unsolicited advice to the CMIO. (D.E. 41-2, Pages 25-26). Therefore, Saucedo requested Chapa address these issues with Plaintiff. (D.E. 41-1, Page 3 and D.E. 41-12, Page 26). On July 14, 2016, Chapa attempted to counsel Plaintiff but she asserts Plaintiff was working from home that day without her knowledge, in violation of Defendant’s time and attendance policy which allows working from home only with prior approval from a manager. (D.E. 41-1, Page 3; D.E. 41-2, Page 26; and D.E. 41-2, Pages 40-42). Plaintiff was aware of this policy but asserts this was an emergency situation because he had been contacted by a pharmacist about a patient safety issue. (D.E. 41-2, Pages 40-43). However, when asked by Chapa why he was working from home, he did not respond that it was an emergency situation. (D.E. 41-2, Page 43). The same day, Chapa unsuccessfully attempted to address with Plaintiff his working from home without permission via Skype and then on the telephone. (D.E. 41-1, Pages 3 and
Chapa then issued Plaintiff, pursuant to Defendant’s Progressive Discipline Policy, a documented verbal warning for his June 17, 2016 communication described above and a written warning for the July 14, 2016 unauthorized absence and for hanging up on her. (D.E. 41-1, Pages 3, 17-20 and 22-27).3 Both corrective actions were signed by Chapa, Saucedo and Plaintiff on July 18, 2016. (D.E. 41-1, Pages 23 and 27).
Plaintiff’s 16-year-old son was in a car accident on September 11, 2016 and shortly thereafter, his son began suffering from mood changes and manic episodes and he would physically harm himself. (D.E. 10, Pages 3-4 and D.E. 44-1, Pages 4-5).4 Plaintiff asserts his son was later diagnosed with bipolar depressive disorder. (D.E. 10, Pages 3-4; D.E. 41-2, Pages 62-64 and 69; and D.E. 44-1, Pages 4-5). Plaintiff discussed his son’s
The next day, on September 28, 2016, Chapa again met with Plaintiff regarding his work, which she found unacceptable for being untimely, incomplete and incorrect. (D.E. 41-1, Page 3). Chapa, in a document titled “Coaching Document,” communicated to Plaintiff that his failure to timely communicate being behind schedule on projects and not providing accurate data was unacceptable. (D.E. 41-1, Pages 3 and 35).
In November 2016, when Plaintiff’s son was in a hospital in San Antonio, Texas, Chapa arranged for Plaintiff to work out of Defendant’s facility in San Antonio. (D.E. 41-1, Page 4). However, Plaintiff did not report to the work location arranged for him as his son was discharged on the day Plaintiff arrived in San Antonio. (D.E. 41-1, Page 4 and D.E. 41-2, Pages 48-49). Around December 1, 2016, Saucedo again informed Plaintiff about the Employee Assistance Program. (D.E. 41-2, Page 27). She also reviewed Defendant’s FMLA policy with Plaintiff and reminded him how to request
On the morning of December 15, 2016, while she was out of town, Chapa attempted to contact Plaintiff to discuss her concerns that he had allegedly been unavailable to several associates the previous day and was behind on several projects. (D.E. 41-1, Page 5). Chapa could not reach him at work and when she reached him via text at 11:37 a.m. to ask if he was at work, he replied, “Well, almost.” (D.E. 41-1, Page 5). The next day, on December 16, 2016, Chapa again found Plaintiff was not at work and contacted him by email and Skype around 10:45 a.m. but did not receive a response. (D.E. 41-1, Page 5). Chapa then sent Plaintiff a message that she and Saucedo had scheduled a mandatory coaching session with Plaintiff for 2:30 p.m. later that afternoon regarding his attendance issues. (D.E. 41-1, Page 5; D.E. 41-2, Page 29; D.E. 44-9, Pages 8-10).
On December 21, 2016, Chapa received a text from Plaintiff showing a picture of a broken doorknob telling her to “be careful.” (D.E. 41-1, Page 6 and D.E. 41-2, Page 18).7 Plaintiff asserts he was unaware at that time that he had been terminated and was
In early 2017, Plaintiff used Facebook messenger to send a message to a Pharmacy Informatics Supervisor named Marvin Skinner which stated:
Hey- by the way -what’s up with this sneak nurse takeover, w 2 or 3 of them trying to put on over on their old antique pharmacist? Especially since I told her that I’d tell her where they screwed up…once, or if, she fixed the screw up. Oh, well. Intentionally refusing to even get me a blasted functional headset was chicken scratch compared to her refusal to acknowledge, much less grant simple accommodation requests…especially considering I’d burned 8 pto days w/ my son hospitalized in San Antonio…and then she’d first said “do FMLA,” then “don’t worry about it. We’ll pay your 1 PTO day, then just not pay for the days you need off for
Christmas.” Oh, and the fact that I’m missing 3 paychecks, PLUS my - & my son’s – insurance was turned off – BEFORE the supposed termination took effect. And yet, premiums were still collected….I just LOVE it. She and her also female Hispanic boss buddy [Chapa and Saucedo] do their retarded write ups, & she says: “Thank you! You just don’t know how much WE appreciate it.” Well, she DID actually try to have me arrested when I went back up to talk to her. So it’s not as if she doesn’t care. I did call it around and recommend her for her position, though. THAT was brilliant. No. Actually she has great potential – just overloaded like all of us. Anyway, my son’s all better now! Not bipolar-disorder-just some weird neuro stuff from the guy who plowed into him in that wreck 9/11. And SMH did NO neuro/head injury exam, MRI/CT etc. I had to sue Allstate for not paying the wreck claim…plus, that caused job loss (?) No quite sure how to proceed…I’m sure I won’t do nothing though.
(D.E. 41-2, Pages 62-64 and 69 and D.E. 44-4, Page 15).
On March 1, 2017, Defendant sent Plaintiff a cease and desist from harassing letter asserting Plaintiff had “inappropriately contacted several” former co-workers after his December 16, 2016 termination. (D.E. 44-9, Page 12).8
On January 2, 2018, Plaintiff filed a charge of discrimination with the Texas Workforce Commission alleging he was terminated based on his own disability. (D.E. 41-3, Page 4). This claim was dismissed as untimely on January 10, 2018. (D.E. 41-3, Page 7). Plaintiff filed this action on March 6, 2018. (D.E. 1).
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
The Court may not weigh the evidence, or evaluate the credibility of witnesses. Id. Furthermore, affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The evidence must be evaluated under the summary judgment standard to determine whether the moving party has shown the absence of a genuine issue of material fact. “[T]he
To sustain this burden, the nonmoving party cannot rest on the mere allegations of the pleadings.
III. ANALYSIS
The FMLA was enacted “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.”
A. INTERFERENCE
“The term ‘interference with’ includes ‘not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.’” Bell v. Dallas Cnty., 432 F. App’x 330, 334 (5th Cir. 2011) (citations omitted). A plaintiff must show: (1) he was an eligible employee; (2) his employer was subject to FMLA requirements; (3) he was entitled to FMLA leave; (4) he gave proper notice of his intention to take FMLA leave; and (5) his employer denied his benefits to which he was entitled under the FMLA. Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017) (citing Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F. App’x 312, 316 (5th Cir. 2013)).
The parties do not dispute Plaintiff was an eligible employee entitled to take FMLA leave or that Defendant was subject to FMLA requirements. Therefore, the undersigned focuses on whether Plaintiff has demonstrated that he gave Defendant proper notice of his intent to take FMLA leave relating to his son’s medical conditions and whether Defendant denied Plaintiff an FMLA benefit to which he was entitled. “Although an employee need not use the phrase ‘FMLA leave,’ she must give notice that is sufficient to reasonably apprise her employer that her request to take time off could fall under the FMLA.” Lanier, 527 F. App’x at 316. The Fifth Circuit “does not apply categorical rules for the content of the notice” and instead focuses on what is “‘practicable’ based on the facts and circumstances of each individual.” Id. (citing
Additionally, whether leave is foreseeable or unforeseeable, an employee must comply with the employer’s customary procedural requirements for requesting leave.
Defendant maintains Plaintiff did not comply with its procedure for taking FMLA leave. During his deposition, when asked when he requested to take FMLA leave, he responded:
Erica [Chapa] and I were trying to figure out how to get by without my having to take FMLA leave. That was both of our goal. I didn’t want to have to miss work, but the issues with Mark had gotten so bad, I didn’t actually follow through with the next steps in taking FMLA. Of course, I would have needed to have gotten documentation from his physician if I was taking FMLA on his behalf. So, at one point, I believe at the meeting…I was saying, “I think I need to take FMLA. Mark is keeping me up all night.” She [Chapa] mentioned that in that performance review but didn’t give any details, of course, due to patient privacy concerns; and, at one point, I met with her about that, and she just said, “Don’t worry about it. I’ll fix it.” I didn’t have enough PTO time to take the mandatory holidays for Christmas and New Year’s.
(D.E. 41-2, Pages 46-47).
Plaintiff further stated, when asked if he understood he did not have to have accrued PTO to take FMLA leave and he had been communicating with Liberty Mutual:
Well, my thought – I mean, Erica [Chapa] and I both were trying to avoid the need for me to take FMLA leave because we had the three big projects…[s]o I was concerned that if I was missing work, that the pump purchase would fall through because we wouldn’t get those pumps – the new pumps programmed when they are delivered and brought on line.
(D.E. 41-2, Page 47).
Plaintiff further stated he was aware he had to submit an FMLA leave request through Liberty but never had an FMLA leave request denied before he was terminated because:
I didn’t proceed with the process because they were trying to complete these projects. I needed FMLA. I was trying to work with Erica [Chapa] to figure out how to either take FMLA or work it out with my PTO time, such that I could be available to complete these projects. I was terminated after I made the FMLA request.
(D.E. 44-4, Page 3).
Further, to the extent Plaintiff alleges Defendant violated the FMLA by not
Therefore, it is respectfully recommended the competent summary judgment evidence does not support a claim of FMLA interference because Plaintiff did not give Defendant proper notice of his intent to take FMLA leave and was, therefore, never denied such leave.
The “FMLA…protects employees from retaliation or discrimination for exercising their rights under the FMLA.” Mauder v. Metro. Transit Auth. of Harris Cnty., 446 F.3d 574, 580 (5th Cir. 2006);
The parties do not dispute Plaintiff was protected by the FMLA or he was terminated. Rather, Defendant asserts Plaintiff has produced no evidence he was fired because he inquired about and/or requested FMLA leave. Defendant maintains Plaintiff
Plaintiff asserts his termination within a month of his inquiry regarding FMLA leave is close enough to establish a causal link. To establish a causal link, Plaintiff’s burden is light, meaning he has to show the protected activity and the adverse employment action are not “completely unrelated” and the Court considers the “temporal proximity” between the FMLA leave and the adverse action. Mauder, 446 F.3d at 583-84 (citations omitted). However, as in Mauder, Defendant “was not required to suspend [Plaintiff’s] termination pending his FMLA filing” when “he had already been on corrective action” prior to his even mentioning FMLA leave. Id. at 583-85; Harville v. Texas A&M Univ., 833 F. Supp. 2d 645, 658-59 (S.D. Tex. 2011) (When an employee with documented disciplinary problems produces no evidence to show “the same actions would not have been taken against her had she not taken FMLA leave,” temporal proximity alone is insufficient to establish retaliation). In short, Plaintiff’s assertions are conclusory and he has produced no evidence in the record he was terminated because he
Further, even if Plaintiff had made a prima facie showing of retaliation, Defendant asserts the employment decisions made were motivated solely by Plaintiff’s work-related conduct, including his poor attendance, poor communication, and for insubordination and a disrespectful attitude toward Chapa and other supervisors. (D.E. 41-1, Page 6). The undersigned recommends Defendant has carried its burden of articulating legitimate, non-discriminatory reasons for its decision to discharge Plaintiff, specifically his performance, communication and attendance issues as well as his unprofessional actions toward his two direct supervisors, Chapa and Saucedo, which are well-documented beginning in June 2016, months before Plaintiff’s son’s September 2016 accident. Chapa followed Defendant’s progressive corrective action policy by coaching and issuing both verbal and written warnings to Plaintiff over a period of several months before the need for FMLA leave was ever discussed. (D.E. 41-1, Pages 3, 17-20 and 22-27).
Plaintiff has offered no competent summary judgment evidence demonstrating Defendant’s stated reasons are pretext. To the extent Plaintiff argues his supervisors’ decisions were incorrect, “[t]he question is not whether the employer made an erroneous decision; it is whether the decision was made with discriminatory motive.” Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995); Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (“[E]ven an incorrect belief that an employee’s performance is inadequate constitutes a legitimate, non-discriminatory reason.”) The undersigned recommends Plaintiff has failed to provide any sufficient evidence of
IV. CONCLUSION
For the reasons stated above, the undersigned recommends Defendant’s Motion for Summary Judgment be GRANTED.
ORDERED this 13th day of June, 2019.
Jason B. Libby
United States Magistrate Judge
The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to
A party’s failure to file written objections to the proposed findings, conclusions, and recommendations in a Magistrate Judge’s report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
Notes
(D.E. 41-1, Pages 37-38).I’ll do what I can. I already told that woman we needed to push this project back. See, I am a single father with full time custody of my son. My nearest family is 1200 miles away, so it’s not necessarily simple. I just got him home from a week in the hospital in San Antonio. So, in addition to the continual demands for production from your company, I have my usual responsibilities to catch up on. At this point, I am still attempting to decipher what it is that this woman wants me to do.
Merry Christmas to you and all! God’s love and peace to each. Be careful – Mark opened the door yesterday without looking first – rough looking guy taking a peek, casing it out. (D.E. 41-2, Page 18).