Harris v. QualChoice QCA Health Plan Inc

Filing 51

ORDER granting 33 QualChoice's Motion for Summary Judgment; and dismissing Harris's amended complaint with prejudice. Signed by Judge D. P. Marshall Jr. on 4/14/11. (hph)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

PAMELA HARRIS

v.

PLAINTIFF
Case No. 4:10-cv-85-DPM

QCA HEALTH PLAN, INC.

DEFENDANT

ORDER
Pamela Harris was a Senior Provider Relations Representative with
QualChoice of Arkansas Health Plan, Inc. After QualChoice received lots of
complaints about Harris's work performance, the company disciplined and
thenfiredher. Harris brought this case, claiming violations of her civil rights.
Qual Choice now moves for summary judgment. FED. R. Cry. P. 56; Smith v.
Fairview Ridges Hospital, 625 F.3d 1076 (8th Cir. 2010). And while summary

judgment should be granted sparingly in employment-discrimination cases,
Rule 56 and the related precedents nonetheless apply with full force. Fairview
Ridges Hospital, 625 F.3d at 1082-83.

1. The Facts. The Court must, and does, view the evidence in the light
most favorable to Harris. Lynn v. Deaconess Medical Center-West Campus, 160
F.3d 484, 486 (8th Cir. 1998). Harris started working for QualChoice in 2005

and was promoted several times during her time there. In early 2009, Harris

applied for the company's new Provider Relations Supervisor position.
QualChoice rejected her application, telling Harris that she was ineligible
because she had not been in her current position for at least one year - a
requirementfor internal candidates. Harris was within one month of meeting
this time-in-position requirement.
In March 2009, Qual Choice disciplined Harris for not timely returning
customer calls. Later that month, Harris filed a discrimination charge with
the EEOC, alleging that QualChoice discriminated against her when it refused
to accept her application for the Provider Relations Supervisor position.
When customer complaints continued, Harris was given a final warning. She
was fired almost two months after she filed her initial EEOC charge. Harris
later filed another EEOC charge alleging retaliatory firing.
2. Having exhausted her remedies with the EEOC, Harris brought this
action, claiming violations of § 1981 and Title VII. Because Harris's Title VII
and § 1981 claims" set forth parallel, substantially identical, legal theories of
recovery, we apply the same analysis to each claim." Humphries v. Pulaski

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County Special School District, 580 F.3d 688, 692 n.3 (8th Cir. 2009) (internal

quotations omitted).

3. Failure To Promote. Harris has not presented direct evidence of
discrimination. The familiar McDonnell Douglas burden-shifting analysis
therefore governs. Lake v. Yellow Transportation, Inc., 596 F.3d 871, 873 (8th
Cir.2010). To establish a prima facie case on her failure-to-promote claim,
Harris "nlustshow that: (1) she is a member of a protected group; (2) she was
qualified and applied for an available position; (3) she was rejected for that
position; and (4) employees similarly situated who are not part of the
protected group were promoted instead." Moore v. Forrest City School District,
524 F.3d 879, 883 (8th Cir. 2008). The parties dispute only the second and
fourth elements.
QualChoice argues that Harris was not qualified for the available
position because she did not meet the one-year requirement for internal
promotions. Harris responds that QualChoice violated its own policy by
allowing Miriam Saliba, another QualChoice employee, to move from Internal
Provider Relations Representative to Senior Provider Relations Representative
in less than twelve months.

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According to QualChoice, the one-year policy "has not been applied to

promotions within the same job track-for instance, individuals seeking to
move from a CSR I to CSR II, Internal Provider Relations Representative to
Senior Provider Relations Representative, or Claims Processor to Senior
Claims Processor[.]" Document No. 33-2. Harris denies that there is any
"same job track" exception to the promotion policy. But at this point she must
do more: she must meet proof with proof and establish a genuine dispute of
material fact on this issue. Conseco Life Insurance Co. v. Williams, 620 F.3d 902,
909 (8th Cir. 2010).

Harris is correct that there is no written exception in the policy. But
viewed in the light most favorable to Harris, the evidence shows the existence
of this unwritten exception. In fact, like Miriam Saliba, Harris had benefitted
from the exception before - after Harris was hired in 2005, she was promoted
from a Customer Service Representative I position to a Customer Service
Representative II position after just six months. And Harris acknowledges
that the new position for which she applied was different from her Provider
Relations Representative position. Document No. 41. She was therefore
required to meet QualChoice's one-year requirement for internal promotions.

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Because Harris had not been in her current position for twelve months, she

was not qualified to be the new Provider Relations Supervisor.
Even if Harris could establish the second element of her prima facie case,
she has not shown that similarly situated employees outside her protected
class were treated any differently. The only other internal employee who
applied for the position was Miriam Saliba; and QualChoice also told Saliba
that she was ineligible because she had not held her current job for a year
either. Harris points to no other employee who was allowed to apply for the
position despite not meeting the one-year requirement. And the candidate
who received the job was not similarly situated to Harris - as an outside
applicant, she was not subject to the one-year restriction. Without any
similarly situated comparators, Harris cannot establish the fourth element of
her prima facie case. Her failure-to-promote claim therefore fails as a matter
of law.
4. Disparate Treatment. Harris also alleges that she was disciplined

differently than other employees because of her race. To establish her prima

facie case on disparate treatment, Harris must show: (1) that she is a member
of a protected class; (2) that she was meeting her employer's legitimate

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expectations; (3) that she suffered an adverse employment action; and (4) that

"the circumstances give rise to an inference of discrimination (for example,
similarly situated employees outside the protected class were treated
differently.)" Lake, 596 F.3d at 874.
Setting aside QualChoice's reason for firing Harris - many customer
complaints over a short period of time - the evidence shows that Harris was
otherwise meeting expectations. Ibid. Further, Harris has pointed to three
white employees who were disciplined differently than she was. Under the
"low-threshold standard" applied at this stage, at least two of these
employees - Employee Band Employee A - are similarly situated enough for
Harris to make out her prima facie case. Wimbley v. Cashion, 588 F.3d 959, 962
(8th Cir. 2009). No one disputes that Harris is a member of a protected class
or that being fired is an adverse employment action.
The burden thus shifts to QualChoice to give "a legitimate,
nondiscriminatory reason for taking the allegedly discriminatory action."

Humphries, 580 F.3d at 692-93 (internal quotation omitted). The company has
done so. QualChoice says it fired Harris because it received an unusually
high number of complaints from its customers about her in a relatively short

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period of time. QualChoice has documented these complaints. In light of this
legitimate, nondiscriminatory explanation, Harris

must show

that

QualChoice's alleged reason for firing her was actually a pretext for
discrimination. Humphries, 580 F.3d at 693.
Harris argues that three other QualChoice employees were disciplined
differently than she was. But the burden for showing that these employees
were similarly situated to Harris is more rigorous at the pretext stage.
Wimbley, 588 F.3d at 962. Harris must show that these employees were

"similarly situated in all relevant respects" to establish pretext. Ibid.
Harris's first alleged comparator is Employee C - who was suspected
of falsifying her time records. This suspected violation, however, is of a very
different character than Harris's performance problems. Further, the record
shows that QualChoice had nothing more than a suspicion of wrongdoing
about Employee C. As to Harris, however, the record contains extensive
evidence of customer complaints. Because Harris and Employee C were not
similarly situated "in all relevant respects[,]" Employee C is not a proper
comparator. Wimbley, 588 F.3d at 962.

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Harris next points to Employee B, an Internal Provider Representative.

His job was different than Harris's. Although it involved some customer
interaction, it did not require the high level of customer interactions that
Harris's position did. And while Employee B did have some complaints from
providers during his tenure at QualChoice, the primary reason for the
company's first and second disciplinary actions against him was a high error­
rate in his routine daily work-not consistent customer dissatisfaction.
Customer complaints were only a secondary issue until Employee B's final
warning. Further, the record shows that Harris's supervisors considered
placing Harris on a performance improvement plan as well, but decided
against it because they felt her problems were more serious than Employee
B's.
Not only are Employee B and Harris not similarly situated, Employee
B's treatment was not so different from Harris's as to suggest pretext. His
disciplinary incidents did come in a different form than hers, but Harris was
given just as many chances for improvement as Employee B was. Employee
B received two performance improvement plans and a final warning; Harris
received an initial verbal counseling, an initial written counseling, and a final

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warnIng. Although they may have been treated differently in form, the

substance of their treatment was substantially similar. Harris therefore
cannot show that Employee B was similarly situated to her under Wimbley's
rigorous standard or that QualChoice's treatment of him was so different that
it suggests pretext to a -reasonable fact finder.
Finally, Harris points to Employee A, a woman who held the same
position as Harris. Employee A was disciplined under an earlier disciplinary
policy than Harris; and QualChoice argues that under that policy,
performance problems and behavior problems were considered on different
tracks. For example, under the older policy, an employee could have two
initial written improvement notices in her personnel file at any gIven
time - one for behavior issues and another for performance issues.
Harris argues that the policy language did not provide for this
distinction. She is correct. But again, Harris's burden at this point is to meet
proof with proof. The evidence in the record indicates that the earlier policy
did, however, treat behavior problems and performance problems separately.
For example, Employee A received two different corrective action forms on
the same day: one was an extension of a final warning she had received

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almost a full year earlier for behavior problems; and the other was an initial

counseling for performance problems, including customer complaints. If
behavior and performance were not treated differently under the old policy,
this outcome would be nonsensical. This undisputed evidence indicates that
the two types of disciplinary issues were treated differently under the old
policy. Because Harris and Employee A were disciplined under different
policies, they were not similarly situated in all relevant respects.
When it disciplined Harris, QualChoice followed its written policy to
the letter. She received an informal verbal counseling, an initial written
improvement notice, and a final warning before she was terminated. Without
any similarly situated comparators who were treated differently or any other
evidence of pretext, Harris's disparate-treatment claim fails as a matter of law.
Fairview Ridges, 625 F.3d at 1088.

5. Retaliation. Finally, Harris brings a retaliatory-firing claim. She

alleges that QualChoice fired her because she filed an EEOC charge when she
was not allowed to apply for the Provider Relations Supervisor position. To
succeed here, Harris "must show that (1) she was engaged in a protected
activity (opposition or participation); (2) she suffered an adverse employment

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action; and (3) the adverse action occurred because she was engaged in the
protected activity./I Huntv. Nebraska Public Power District, 282 F.3d 1021, 1028
(8th Cir. 2002); see also 42 U.S.C.A. § 2000e-3(a) (West 2003). The parties
dispute only the third element.
Harris's only evidence of causation is timing. liThe requisite causal
connection may be proved circumstantially by proof that the discharge
followed the protected activity so closely in time as to justify an inference of
retaliato:ry motive." Rath v. Selection Research, Inc., 978 F.2d 1087, 1090 (8th
Cir.1992). But temporal proximity alone is generally insufficient to create a
genuine issue of fact on a retaliation claim. Wedow v. City of Kansas City,
Missouri, 442 F.3d 661, 675 (8th Cir. 2006). After the fact is not necessarily

because of the fact.
QualChoice was notified of Harris's EEOC charge in late March 2009.
She received her final warning about three weeks later and was fired almost
two months after filing her charge. Viewing the timing evidence in the light
most favorable to Harris, the Court concludes that the gap between the EEOC
filing and her discipline and firing is not small enough, standing alone, to

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allow a reasonable inference of retaliatory motive. Harris's retaliation claim
therefore fails as a matter of law too. Wedow, 442 F.3d at 675.

***
QualChoice's motion for summary judgment, Document No. 33, is
granted. Harris's amended complaint is dismissed with prejudice.
So Ordered.

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