Victoria JOHNSON, Plaintiff-Appellant, v. UNIVERSITY HOSPITALS PHYSICIAN SERVICES, Defendant-Appellee.
No. 14-4026.
United States Court of Appeals, Sixth Circuit.
July 7, 2015.
611 Fed. Appx. 487
BEFORE: SUTTON, GRIFFIN, and WHITE, Circuit Judges.
Plaintiff Victoria Johnson alleges that her former employer, defendant University Hospitals Physician Services, discriminated against her based on a perceived disability and retaliated against her for alleging such discrimination. But Johnson presented insufficient evidence to establish either. We therefore affirm.
I.
As a provider enrollment specialist, Johnson was tasked with enrolling doctors in Centers for Medicare and Medicaid (“CMS“) programs using application form 855I, which she forwarded to contractor Cigna Government Services for processing after the forms were completed. Section
Defendant‘s supervisors instructed Johnson to use her work phone number in section 2B instead of a doctor‘s direct line or answering service. At one point, defendant‘s management also instructed staff to answer the phones differently if it appeared that Cigna was calling, to give the impression that the office—a department with multiple functions including billing services for the hospital system at large—was not a “billing agency.” From approximately October 2011 to June 2012, Johnson put her phone number in section 2B without raising concerns. In June, some of the forms were returned. Once she reprocessed them—again using her phone number—they were approved. Nonetheless, Johnson began to express concerns to her supervisors about using her phone number. She asserts that she was worried about violating the law because she believes there are criminal penalties for providing false information on the form.
In July 2012, Johnson called defendant‘s compliance hotline with her concerns. Carole Meisler, one of defendant‘s compliance officers, investigated the complaint. On July 17, Meisler called Johnson about the complaint. The same day, Meisler emailed Johnson, advising that she spoke with Cigna representatives who explained that they do not expect to have direct access to doctors because doctors are busy taking care of patients; they merely need a phone number to contact someone who will get the information from the doctor and report back. Accordingly, Meisler advised Johnson that the practice of using Johnson‘s phone number complied with CMS protocol.
Questioning Meisler‘s advice, Johnson exchanged multiple emails with Cigna representatives to clarify their expectations. Johnson states the representatives told her the contact information “cannot be that of the billing office.” On July 20, Johnson advised her supervisors that she would no longer use her phone number on the form. On July 23, defendant‘s chief compliance officer, Cheryl Wahl, wrote a letter to Johnson, advising her that Meisler had contacted Cigna and confirmed that using an enrollment specialist‘s phone number in section 2B was “both allowable and correct.”
The following day, Johnson forwarded to her supervisors an email she received from a Cigna representative, again challenging defendant‘s practice. Meisler again contacted Johnson and explained that she had talked to the supervisor of the Cigna representative with whom Johnson had spoken. According to Meisler, the Cigna supervisor clarified that when Cigna called, it would be sufficient for Johnson to state that, “the provider will not pick up the telephone but as a part of [my] job description, [I will] get any message to him/her, [and] that [I] will contact the provider for [Cigna] as a part of [my] job.” Johnson questions whether Meisler ever contacted Cigna, but the parties do not dispute that the office openly continues this practice to this day.
Meanwhile, Johnson‘s supervisors confronted another problem. Months before Johnson expressed concerns about section 2B, she received a relatively poor annual performance review, which mentioned that
On July 26, Johnson met with two supervisors and a human resources employee. Johnson shared that she had been taking medication that made her sleepy and that the situation “was out of [her] control.” They informed her that, due to the sleeping at work, they were referring her to an employee assistance program for a fitness-for-duty evaluation for “impaired functioning.” Johnson contacted her own doctor and submitted a form to take a short-term disability leave or leave under the
On October 1, human resources wrote Johnson advising her that her leave ended on August 21 and she was expected to return to work by October 8 or her employment would be terminated. Around that time, Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC“), alleging that defendant had discriminated against her on the basis of a perceived disability.1 When Johnson received the October 1 human resources letter, she responded with a six-point list of expectations for her return, including that she would not use her phone number on form 855I.
Johnson returned to work on October 8, 2012. In a meeting with supervisors, she refused to comply with their instructions that she use her phone number on form 855I. They offered her twenty-four hours to reconsider, but Johnson insisted that she did not need the time because she would not complete the form as instructed. Defendant terminated Johnson for refusal
II.
We review de novo a district court‘s grant of summary judgment. Havensure, L.L.C. v. Prudential Ins. Co. of Am., 595 F.3d 312, 315 (6th Cir. 2010). Summary judgment is proper if the evidence shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Johnson presents two claims: discrimination on the basis of a perceived disability, in violation of the Americans with Disabilities Act,
A.
We first consider whether Johnson has established a prima facie case of disability discrimination based on two of defendant‘s2 actions—requiring a fitness-for-duty evaluation and purportedly delaying Johnson‘s return to work. Johnson does not argue on appeal that she was terminated because of a perceived disability. Johnson has failed to satisfy her prima facie burden because she has not shown that defendant regarded her as disabled or took adverse action because of a perceived disability.
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.”
To determine whether circumstantial evidence supports Johnson‘s claim, we use the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under that framework as pertinent here, Johnson establishes a prima facie case by showing that (1) defendant regarded her as disabled,3 (2) she is otherwise qualified for
“[A] person is ‘regarded as’ disabled within the meaning of the ADA if a covered entity mistakenly believes that the person‘s actual, nonlimiting impairment substantially limits one or more major life activities.” Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22, 119 S. Ct. 2133, 144 L. Ed. 2d 484 (1999).
[W]hen the major life activity at issue is working, the statutory phrase “substantially limits” takes on a special meaning ... and imposes a stringent standard, requiring proof that the employer regarded the employee as significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 704 (6th Cir. 2008) (internal quotation marks omitted).
Johnson‘s sole evidence that defendant perceived her as disabled is that it referred her to a fitness-for-duty evaluation. “[A] defendant employer‘s perception that health problems are adversely affecting an employee‘s job performance is not tantamount to regarding that employee as disabled.” Sullivan, 197 F.3d at 810. An employer‘s request that an employee undergo a medical exam “may signal that an employee‘s job performance is suffering, but that cannot itself prove a perception of a disability because it [alone] does not prove that the employer perceives the employee to have an impairment that substantially limits one or more of the employee‘s major life activities.” Id. at 811. “Deteriorating [employee] performance may be linked to motivation or other reasons unrelated to disability.” Id.
Defendant stated on the referral form that “impaired functioning” was the basis for Johnson‘s referral. The report of the doctor who examined Johnson stated that she was referred for evaluation because she was “falling asleep at work,” and generally had a “difficult” relationship with her manager. These reasons for referral are directly related to Johnson‘s ability to do her job. Johnson focuses the bulk of her argument on the possibility that she was “punitively” referred for evaluation because she disagreed with her supervisors over how to fill out form 855I. But even if we assume Johnson was referred for irritating her supervisors, Johnson has failed to establish a question of fact over whether her supervisors perceived her as disabled.4
B.
Johnson‘s final claim is that she was terminated in retaliation for filing an EEOC discrimination charge. This claim fails for lack of pretext. The ADA prohibits employers from discriminating against a person because she “has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge ... under [the ADA].”
To establish a disability-retaliation claim, Johnson must first make out a prima facie case, showing “(1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between the protected activity and the adverse employment action.” Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007). If Johnson establishes a prima facie case, the burden shifts to defendant to produce evidence of a legitimate, nondiscriminatory reason for termination. Id. at 570. If defendant satisfies that burden, Johnson must demonstrate the proffered reason is pretextual. Id. Johnson may show pretext by “offering evidence that the employer‘s proffered reason had no basis in fact, did not actually motivate its decision, or was never used in the past to discharge an employee.” Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir. 1998).
We assume for purposes of argument that Johnson has established a prima facie case. Therefore, Johnson has the burden of showing that defendant‘s proffered reason for termination—her refusal to perform an essential job function—was pretext for disability retaliation. However, Johnson has not demonstrated that her refusal to complete form 855I as instructed did not motivate defendant to terminate her, or that it was insufficient, or had no basis in fact. On this record, there is no evidence to reasonably infer that if Johnson had followed her employer‘s directions she would have been terminated anyway. On the contrary, Johnson acknowledged
Johnson expends much effort arguing that defendant has not produced admissible evidence that it contacted Cigna to investigate whether defendant‘s practices were CMS-compliant. But whether defendant conducted an investigation, or whether its practices were CMS-compliant, is not at issue in this case. This action regards whether defendant discriminated against Johnson because of a perceived disability or terminated her for claiming such discrimination, not whether she was wrongly terminated for whistleblower-protected activity. We need not address Johnson‘s admissibility arguments to resolve this appeal.
Finally, because we conclude that Johnson has not satisfied her burden of establishing pretext, we do not reach defendant‘s alternative argument under the “honest belief” rule.
III.
For these reasons, we affirm the judgment of the district court.