Weil v. Carecore National, LLCWeil v. Carecore National, LLC
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Carecore National, LLC’s (“Defendant”) Motion for Summary Judgment. (Doc. # 29.) In this case, Plaintiff Natasha Weil (“Plaintiff’) brings suit against Defendant, her former employer, pursuant to the Americans with Disabilities Act (“ADA”),
I. BACKGROUND
The following facts are undisputed, unless otherwise noted. The Court will elaborate, as needed, in its analysis section.
Plaintiff began working for Defendant on October 2, 2006, as a Clinical Decision Support (“CDS”) Representative. CDS Representatives answer calls that come into Defendant’s call centers. On or about January 10, 2007, Plaintiff was allowed to begin working from home, which is a privilege not given to every Carecore employee. (Doc. # 42-1, ¶ 8.) When logged into Defendant’s telecommunications system, Plaintiff inputted codes to let her employer know whether or not she was available to receive calls. If she was not available, she input a code that put her in “auxiliary mode.” If Plaintiffs system was in auxiliary mode for too long, either her supervisor, Coleen Thurston, or a “runner”
On January 2, 2008, Plaintiff provided Defendant with a “Certificate of Disability” from a doctor stаting that she could not perform her regular duties from January 2 through January 31, 2008. The certificate stated that Plaintiff should be permitted to take “restroom breaks as needed.” (Doc. # 38-1 at 2.) Plaintiff submitted another doctor’s note on March 31, 2008, stating that Plaintiff “requires
On May 30, 2008, Defendant gave Plaintiff a formal written warning for improperly using instant messaging technology, sending information from her business computer to her personal email address, and claiming not to have received an email message that Defendant found in her deleted messages folder. In the portion of the form allowing for responsive comment, Plaintiff stated that she had not reсeived the email message found in her deleted messages folder and that she was trained to email documents from her business computer to her personal email address. Plaintiff conceded that she had improperly used instant messaging technology. (Doc. # 29-10.)
Later that day, Plaintiff informed her supervisor, Coleen Thurston, that she wanted to levy a complaint of harassment against Regional Human Resources Manager Geri Westberg. By instant message, Plaintiff wrote the following:
I would like to make a formal complaint for medical descrimination [sic] and harrassment [sic]. When I first came down sick and used my PTO up I began to get problems from [Westberg] back in January. After I had a breakdown and my doctor placed my [sic] on leave for two weeks, sending [sic] in documentation of my medical conditions, situations [sic] took a turn for the worse and now everytime [sic] I turn around I am getting written up for anything and everything, including things I was trained to do and given an OK a year prior. I have also submittеd two prior reports of harrassment [sic] from [Westberg] in HR and nothing was never [sic] investigated.
Since giving my MD note, I still receive daily IM’s form [sic] runners and supervisors, asking if I am aware that I have been on break, when I have MD permission to do so for medical needs. I feel that since [Defendant] has been advised of my medical that I am trying to be let go of my job, each write up being used as leverage.
(Doc. # 29-11.) On June 10, 2008, Janet Galloway, Vice President of Human Resources, interviewed Plaintiff over the telephone about her complaint. In that telephone call, Plaintiff reiterated her allegation that runners were harassing her via instant message communications over the length of her restroom breaks, despite having knowledge of her doctor’s note providing that Plaintiff should be allowed to take restroom breaks as needed. (Doc. # 29-20 at 10-12.) Plaintiff also expressed suspicion that the alleged harassment might stem from Westberg’s belief that Plaintiff had distributed an anonymous letter complaining about work conditions. (Id. at 8-9.)
On July 10, 2008, Defendant notified Plaintiff that it had concluded its investigation and found no wrongdoing by West-berg. Also on July 10, Defendant received a complaint from a customer whose calls to Defendant had twice been disconnected that day. Defendant traced both disconnected calls to Plaintiffs work station. Recordings of the calls indicated that Plaintiff had not interacted with the caller before the calls were disconnected. Defendant initially considered this to be a
On the morning of July 11, 2008, Defendant attempted to limit Plaintiffs restroom usage on the grounds that her restroom breaks exceeded normal company standards and that her January 2, 2008 doctor’s note had expired on January 31, 2008. After Plaintiff responded that she had submitted two subsequent doctor’s notes, Defendant withdrew its attempt to limit Plaintiffs restroom use. (Doc. # 38-8.) Approximately four hours later, Plaintiff partook in a telephone conversation with Thurston, Galloway, and Paula Miller, a Human Resources employee, concerning the disconnected calls. (Doc. #29-1 at 233:1-234:12.) During the call, Plaintiff insisted that equipment malfunction had caused the disconnections. Galloway responded that “it’s your word against the verification that we have given the measuring, the recordings, the tools that we have to pinpoint where the source of the disconnection was.” (Doc. # 29-22 at 4.) After Plaintiff asked about her medical problems, Galloway replied that Plaintiffs mеdical issues did not have anything to do with the discipline, which related only to the disconnected calls. (Id. at 4-5.)
Although Plaintiff was cautioned that she could be terminated for the offense, Defendant instead issued a Final Written Warning (the “Warning”). Pursuant to the Warning, Plaintiffs remote privilege was revoked and she was told to report to the Colorado Springs office the following Monday. The Warning also stated that any similar occurrences would subject Plaintiff to further disciplinary action up to and including tеrmination. (Doc. # 29-13 at 2.) In response to Plaintiffs insistence that the disconnected calls were due to equipment malfunction, Galloway instructed Plaintiff to bring her equipment to the office to have it tested. (Doc. # 29-22 at 12.)
On July 14, 2008, instead of returning to the Colorado Springs office, Plaintiff submitted a note from Dr. Susan Dattilo. Dr. Dattilo wrote that Plaintiff would not be able to return to the “home office due to her medical problems. [Plaintiff] was coping medically by working at home but the office has physicаl and emotionally [sic] challenges that aggravate her conditions. Due to excessive monitoring and current accusations, she is under severe stress and is not able to work in any capacity at this time.” (Doc. # 29-14.) Defendant subsequently granted Plaintiff FMLA leave.
While on leave, Plaintiff provided Defendant with a statement, dated August 1, 2008, from Michael Coke, in support of her assertion that her telecommunication equipment was defective. (Doc. # 29-17.) Coke, a Qwest technician, concluded that Plaintiffs work phone had a “technical problem and should be replaced, the disconnected calls from what I can tell were/ are not being done by [Plaintiff].” (Doc. # 29-17.) Based on this information, Defendant rescinded the Warning, instead making a Record of Verbal Counseling (“Verbal Counseling”). Defendant determined that Plaintiff had been “releasing one call as another was coming in, which will result in a disconnect of the subsequent call,” and concluded that this problem refleсted “a performance issue rather than a policy violation.” Defendant reinstated Plaintiffs remote privilege but instructed her to first attend one week of retraining in the Colorado Springs office. (Doc. ## 29-16, 29-21 at 3.)
Plaintiff stayed on FMLA leave until she exhausted it on September 23, 2008. After Galloway inquired about Plaintiffs progno
II. STANDARD OF REVIEW
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.CivJP. 56(c). In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc.,
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant who does not bear the ultimate burden of persuasiоn at trial does not need to disprove the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Id. at 671 (citing Celotex Corp. v. Catrett,
Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson,
Finally, the Court notes that summary judgment is not a “disfavored procedural shortcut,” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determinаtion of every action.” Celotex,
III. ANALYSIS
In this case, Plaintiff brings retaliation claims under the ADA and the FMLA. Under ADA § 503 — which prohibits “retaliation and coercion” by an employer — “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”
Retaliation claims under both the FMLA and ADA are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of retaliation. Metzler,
A. PRIMA FACIE CASE OF RETALIATION
To establish a prima facie case of retaliation, Plaintiff must prove that (1) “she еngaged in a protected activity;” (2) Defendant “took an action that a reasonable employee would have found materially adverse;” and (3) “there exists a causal connection between the protected activity and the adverse action.” Metzler,
1. Protected Activity
a) ADA retaliation claim
In order to establish her prima facie case of retaliation under the ADA, Plaintiff must first demonstrate that she “engaged in protected opposition to discrimination.” E.E.O.C. v. C.R. England, Inc.,
A plaintiff may pursue an ADA retaliation claim without showing that she suffers from an actual disability. See Selenke v. Med. Imaging of Colo., 248 F.3d
In order to establish a prima facie case of disability discrimination under the ADA, a plaintiff must demonstrate that she “(1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability.” Justice v. Crown Cork & Seal Co., Inc.,
Plaintiff contends that she reasonably believed her need for restroom breaks was an ADA qualifying disability because she obtained two “Certificates of Disability” from her doctor in January of 2008 and Defendant accommodated her need to take restroom breaks. (Doc. # 36-3, ¶ 2.) The first “certificate,” dated January 2, 2008, consists of four words of analysis: “restroom breaks as needed.” (Doc. # 38-1 at 2.) That certificate expired on January 31, 2008, and failed to (1) identify any specific impairment, (2) distinguish how Plaintiffs need to use the bathroom differed from anybody else’s, or (3) indicate that she was substantially limited by the unknown condition. The second “certificate,” dated January 24, 2007, is merely a doctor’s note excusing Plaintiff from work for three days due to an upper respiratory infection.
During her deposition, Plaintiff acknowledged that the doctor’s notes “never defined what type of restroom break was excused and which one wasn’t.” (Doc. #29-1 at 190:10-14.) Plaintiff also testified that she could use the restroom “as needed,” regardless of the reason. (Id. at 190:20-23.) For example, Plaintiff testified that she believed her restroom privileges allowed her to be in restroom auxiliary mode instead of taking sick leave when she suffered from foоd poisoning. (Id. at 190:8-23.) Thus, Plaintiff believed that the certificates covered any reason she might have for using the bathroom, and not merely restroom breaks associated with any particular impairment.
Plaintiff also argues that her belief was reasonable because Defendant treated Plaintiffs request to use the restroom as needed as a request for accommodation. The fact that Defendant honored the doctor’s note and allowed Plaintiff to take restrоom breaks as needed does not mean that it regarded Plaintiff as disabled, nor does it make Plaintiffs belief any more reasonable. See Gaddy By and Through
Based on the undisputed facts present in this case, Plaintiff has not proved that she is a disabled person as defined in the ANA. Moreover, the Court finds that, even if Plaintiff believed that she suffered from a recognized ANA impairment, such belief was not a reasonable belief. As such, Plaintiff fails to satisfy the first prong of the prima facie retaliation test with regard to her ADA claim.
b) FMLA retaliation claim
In the instant case, Plaintiff engaged in protected activity when she took FMLA leave from March 25, 2008 to April 7, 2008. See Metzler,
2. Adverse Employment Action
Plaintiff contends that the July 11, 2008 Warning (Noc. # 29-13) and the August 11, 2008 Verbal Counseling
The test for what constitutes a materially adverse employment action is an objective one. See Somoza v. Univ. of Denver,
The Tenth Circuit has instructed that the phrase “adverse employment action” should be liberally defined and is not limited to monetary losses in the form of wages or benefits. Annett v. Univ. of Kan.,
Plaintiff argues that her remote privilege was particularly important given her need for frеquent restroom breaks. However, there is no evidence in the record that Plaintiffs ability to take restroom breaks as needed would be affected by the revocation of her remote work privilege. Although working at the office may have been more burdensome to Plaintiff than working at home, “mere inconvenience” does not constitute an adverse employment action. Annett,
The Verbal Counseling letter rescinded the Warning and reinstated Plaintiffs remote privilege. The only changе in Plaintiffs employment status was that she was instructed to return to the office for one week of retraining. The Court finds that the Verbal Counseling letter did not constitute an adverse employment action because no reasonable jury would consider one week of retraining to be sufficiently adverse as to dissuade a reasonable employee from bringing a charge of discrimination. See Couch v. Bd. of Trs. of Mem’l Hosp. of Carbon Cnty.,
That a reasonable employee would not be dissuaded from asserting her FMLA rights as a result of Defendant’s actions is demonstrated by the fact that Plaintiff requested and took FMLA leave only three days after she received the Warning. As such, the Court finds that neither the Warning nor the Verbal Counseling constituted materially adverse employment actions, ie., actions that would dissuade a reasonable worker from making or supporting a chargе of discrimination. See Somoza,
IV. CONCLUSION
Based on the evidence in the record, Plaintiff has not shown that there exists a genuine issue for trial because she has not established a prima facie case of retaliation under either the ADA or the FMLA. Her ADA retaliation claim fails because she has
Accordingly, Defendant’s Motion for Summary Judgment (Doc. # 29) is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE. The parties shall bear their own fees and costs. The Final Trial Preparation Conference set for June 24, 2011, and the five-day Jury Trial set to commence July 11, 2011, are VACATED.
Notes
. A "runnеr” is a Workforce Management employee who provides assistance to CDS Representatives on difficult calls.
. The Telephone Policy states that Defendant maintains a Zero Tolerance policy for “[t]erminating a customer call without cause or provocation.” (See Doc. # 29-21 at 8.)
.
. Plaintiff claims the certificate of disability was dated January 24, 2008. However, the certificate cited to is dated January 24, 2007. If there is a separate certificate dated January 24, 2008, the Court has been unable to locate it in the evidentiary record.
. Although Plaintiff was eventually terminated, she does not argue that her termination was the adverse employment action in violation of the ADA and FMLA’s anti-retaliation provisions.
. The Warning indicated that "further occurrences of this nature will result in further disciplinary action up to and including termination.” However, Plaintiff was an at-will employee and there is no evidence that this Warning increased the likelihood that she would be terminated or disciplined further.