Cunnigham v. Humana, Inc.
Filing
33
MEMORANDUM OPINION & ORDER by Judge John G. Heyburn, II on 8/31/2011: see order for specificscc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:10-CV-56-H
TAMARAH CUNNINGHAM
PLAINTIFF
V.
HUMANA INSURANCE COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER
Plaintiff makes several claims related to the termination of her employment with
Defendant Humana Insurance Company (“HIC”). At this point, the remaining claims are for
disability discrimination, failure to accommodate and retaliation under the Kentucky Civil Rights
Act (“KCRA”), and interference and retaliation under the Family and Medical Leave Act
(“FMLA”). Defendant has moved for summary judgement on all claims.
This opinion will not address Plaintiff’s failure to accommodate claim because the factual
and legal basis of this claim is significantly different from that of the claims discussed here. The
Court will consider that claim in a subsequent memorandum. For the reasons that follow, the
Court will grant summary judgment on the disability discrimination and retaliation KCRA
claims,1 and interference and retaliation FMLA claims.
I.
Plaintiff has worked for Humana since 2004, but began employment with Defendant HIC
in December of 2006. For HIC, Plaintiff performed data entry, which required both speed and
1
Plaintiff only points to her termination as evidence of retaliation under the KCRA; therefore, the Court will
only consider this claim with regards to termination, rather than any other alleged adverse employment action.
accuracy. HIC measures speed of employees with a production score and accuracy with a
quality score, requiring employees to maintain a score of 100% and 94.84% or higher
respectively. Plaintiff had problems meeting these performance goals as early as her 2007
evaluation. Plaintiff was counseled about her low quality score in September 2008. At one
point, Plaintiff was put in a different position, working with change of address and ID cards.
Plaintiff could not meet the performance goals for this position either. During the period of time
when her performance was below standards, Plaintiff did apply for other positions within
Humana. She was interviewed for one but did not receive a job offer.
In August 2009, due to repeated low performance scores, Plaintiff was required to
complete a Competency & Contribution Improvement Plan (“CCIP”). At the time of the CCIP,
Plaintiff knew that her monthly performance scores had been repeatedly below standard. As part
of the CCIP, Plaintiff met almost weekly with her supervisors to improve her speed and
accuracy. Plaintiff claims she did not receive coaching or training during these meetings, but she
acknowledges that most of these meetings did occur. Despite these meetings, Plaintiff’s
performance did not improve, and, on December 17, 2009, after eleven consecutive months of
failing to meet performance standards, she was terminated.
In the midst of her employment at HIC, Plaintiff encountered significant medical
problems. In 2005, shortly before beginning work with HIC, Plaintiff was diagnosed with
multiple sclerosis (“MS”). At the end of 2006 and beginning of 2007, Plaintiff took leave for
two months due to a MS flare. Upon returning in February 2007, she worked four hours a day,
then slowly progressed to full time work. Humana provided her a parking space close to the
building for six weeks due to her inability to walk long distances. In June 2007, Plaintiff was
2
certified for FMLA leave for intermittent MS treatment. In December 2007, she again
experienced an MS exacerbation and received short term disability and FMLA leave. When she
returned to work at the end of February 2008, she was accommodated by HIC in the same
fashion, progressively longer work days and a nearby parking space.
In June 2008, Plaintiff was again approved for short term disability and FMLA leave.
Another MS exacerbation occurred in August of 2008, resulting in half days of work for four
days and several days of short term disability and FMLA. In June 2009, she was again approved
for intermittent leave under FMLA, though she was not incapacitated at the time. Either in June
or September of 2009, Plaintiff took some additional FMLA leave.
At some point in time, Plaintiff says that her supervisor called her while she was on
medical leave and pressured her to come back to work before she was ready.2 Plaintiff claims to
have repeatedly asked for a parking spot closer to work for longer than six weeks, complained
her supervisor harassed her on return from FMLA leave about the quality of her work, and
discussed concerns about her supervisor’s failure to promptly complete FMLA paperwork.
During her employment, Plaintiff claims to have repeatedly requested training and help meeting
speed and accuracy standards, but with no training provided until the CCIP was implemented.
Plaintiff provides no specifics with regards to any of these complaints.
2
Plaintiff discussed such a telephone call twice in her deposition. One time, the telephone call appeared to
have occurred when Plaintiff was on leave in 2007; the second time Plaintiff mentioned such a phone call, the Court
cannot deduce if it was a reference to the phone call that likely occurred in 2007 or was another similar phone call.
In her affidavit, Plaintiff claims that the phone call occurred during a leave in 2009. Defendant objects to the use of
Plaintiff’s affidavit, claiming it contradicts Plaintiff’s deposition testimony. Reid v. Sears, Roebuck & Co., 790 F.2d
453, 460 (6th Cir. 1986). Because the deposition testimony on this point is unclear to the Court, the Court will
merely rely on the fact that Plaintiff claims to have been pressured to return to work by her supervisor at some point
during her employment. The Court did not have access to Plaintiff’s full deposition, but will assume all relevant
questions and answers were included within documents submitted to the Court.
3
II.
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “On summary
judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light
most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654,
655 (1962). While the moving party must demonstrate that no genuine issue of material fact
exists, in response, the non-moving party must move beyond the pleadings and present evidence
in support of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Conclusory
assertions, supported only by Plaintiff’s own opinions, cannot withstand a motion for summary
judgment.” Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008).
III.
The Court now considers Plaintiff’s claims for disability discrimination and retaliation
under the KCRA. Claims under the Act are analyzed similarly to those under the Americans
with Disabilities Act (“ADA”). Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003).
Because the KCRA has not been amended as was the ADA, cases involving the KCRA apply the
pre-amendment ADA law. Breen v. Infiltrator Systems, 417 F. App’x 483, 486 (6th Cir. 2011).
Plaintiff also has claims for interference and retaliation under the FMLA.
All of Plaintiff’s claims follow the general McDonnell Douglas burden shifting
framework where the plaintiff must establish a prima facie case of a particular claim, shifting the
burden to the defendant to present a legitimate business reason for its decision or action; the
4
plaintiff then has the opportunity to demonstrate that the proffered reason was pretext for the
illegal but actual reason for the adverse employment action. Whitfield v. Tenn., 639 F.3d 253,
259-60 (6th Cir. 2011) (discussing application of the burden shifting framework in the context of
disability discrimination claims); Walsh v. United Parcel Serv., 201 F.3d 718, 724-25 (6th Cir.
2000) (using the McDonnell Douglas framework for a failure to accommodate claim); Clay v.
United Parcel Serv., Inc., 501 F.3d 695, 713 (6th Cir. 2007) (stating that “[t]he McDonnell
Douglas burden shifting approach also applies to retaliation claims); Daugherty v. Sajar Plastics,
Inc., 544 F.3d 696, 707(6th Cir. 2008) (applying the McDonnell Douglas burden-shifting
framework to a FMLA retaliation claim); Edjar v. JAC Products, Inc., 443 F.3d 501 (6th Cir.
2006) (discussing prima facie case of FMLA interference and legitimate reason for alleged
interference).
For purposes of the current claims, the Court will assume Plaintiff can establish a prima
facie case. Defendant says that it terminated Plaintiff because she failed to meet the established
performance standards for her job. However, an employee’s failure to meet established
performance standards in these circumstances is certainly a legitimate business reason for
termination. See Whitfield, 639 F.3d 253. Therefore, the only remaining question is whether
Defendant’s proffered reason is pretext for disability discrimination or retaliation under the
KCRA or the FMLA. The Court will consider each.
A.
A plaintiff can show pretext by demonstrating that (1) the proffered reasons had no basis
in fact, (2) the proffered reasons “did not actually motivate the company’s decision” or (3) the
proffered reasons were insufficient to support Defendant’s actions. Cline v. BWXT Y-12, LLC,
5
521 F.3d 507, 509 (6th Cir. 2008). Plaintiff is unclear how she might show pretext. Plaintiff
acknowledges, however, that she did not meet HIC’s performance standards. Nor does she seem
to suggest that her poor performance was insufficient reason for termination. In fact, she
understood that the CCIP would result in termination if her performance was unimproved.
Therefore, the Court will discuss whether Plaintiff’s performance was the actual reason for her
termination.
“[P]laintiff must prove only enough to create a genuine issue as to whether the rationale
is pretextual.” Whitfield, 639 F.3d at 260(emphasis in original). Plaintiff has “the burden of
persuasion on this point. This burden is not satisfied by introducing ‘metaphysical doubt’ as to
the intent of the decision-maker or the adequacy of the process. [Plaintiff] was required to bring
forward evidence tending to show that retaliatory animus [or disability discrimination] was the
but-for cause of h[er] termination. [Her] subjective belief that [Defendant’s] proffered reason is
false, and that retaliation [or discrimination] was the actual motive, is not sufficient to withstand
summary judgment.” Carson v. Ford Motor Co., 413 F. App’x 820, 824 (6th Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
In her deposition, Plaintiff says that Defendant was trying to find a reason to terminate
her, likely because MS made her a costly employee. However, Plaintiff produced no actual
evidence supporting such an assertion.3 In fact, Plaintiff mainly argues that her supervisor called
3
For instance, Plaintiff provides the monthly cost of her MS medications in her deposition to demonstrate
she was such a costly employee that Defendant would be motivated to terminate her. However, Plaintiff points to no
action of Defendant from which a jury could infer that it contemplated the costs of an employee with MS. In fact,
Plaintiff offers no evidence besides her conclusion that cost must have been the real reason for termination. In
addition, Plaintiff claims that Defendant changed the guidelines for performing her position one to two months
before she was terminated. Dep. 107-108. She claims that she was not provided with those new guidelines.
However, Plaintiff did not argue either of these assertions in response to the summary judgment motion nor provide
the Court with any evidence demonstrating it. In her deposition, Plaintiff seems to suggest that her supervisor did
6
her while she was on leave and told her to come back to work or loose her job. Plaintiff alleges
the same supervisor then “harrass[ed] [her] about the quality of [her] work . . . knowing that he
had forced [her] to return to work while [she] was still ill and under medical care.” Cunningham
Aff. ¶5. In addition, Plaintiff claims that she repeatedly asked for training to assist her in better
performing her job while dealing with the effects of MS; she complained about HIC’s failure to
train, promptly complete her FMLA paperwork, and provide parking close to work for longer
than six weeks.
Here, Cunningham asks the Court to infer from a phone call received sometime towards
the end of a medical leave, poor evaluations of her work, and training that did not meet
Plaintiff’s expectations, that HIC terminated her due to her MS. At best, Plaintiff has created the
sort of “metaphysical doubt” that is insufficient to prove pretext. Carson, 413 F. App’x at 824.
As to her claims that she was terminated in retaliation under FMLA or KCRA, Plaintiff provides
no evidence besides the phone call from her supervisor and vague allegations of temporal
proximity between complaints and termination. These facts support a prima facie case, but “the
plaintiff may not rely simply upon h[er] prima facie evidence but must, instead, introduce
additional evidence” of retaliation to show pretext. Manzer v. Diamond Shamrock Chems. Co.,
29 F.3d 1078, 1084 (6th Cir. 1994) (overruled on other grounds). Because termination was the
only basis of her disability discrimination claim and retaliation claims, these claims fail.4
B.
not consider all of her audits. Dep 133. Again, Plaintiff did not argue this fact in response to summary judgment.
4
Plaintiff does claim that she was harassed by her supervisor about the quality of her work. She provides no
details about this alleged “harassment” and does not make a hostile work environment claim. Generally, for
harassment to be retaliation it must be severe or pervasive. Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792
(6th Cir. 2000). Therefore, the Court considered only Plaintiff’s termination in these claims and will consider any
failures to accommodate under the KCRA in another opinion.
7
Next, the Court considers Plaintiff’s claim for interference under the FMLA. “To prevail
on the entitlement theory claim . . ., an employee must prove that: (1) she was an eligible
employee, (2) the defendant was an employer as defined under the FMLA, (3) she was entitled to
leave under the FMLA, (4) she gave the employer notice of her intention to take leave, and (5)
the employer denied the employee FMLA benefits to which she was entitled.” Grace v. USCAR
and Bartech Tech. Servs., 521 F.3d 655, 669 (6th Cir. 2008) (citing Edgar, 443 F.3d at 507).
Plaintiff seems to allege that the phone call from her supervisor while she was on leave along
with the supervisor’s alleged harassment after she returned to work, constituted interference with
FMLA benefits. Plaintiff acknowledged in her deposition that she received the call from her
supervisor as her FMLA leave was expiring. Cunningham Dep 215: 22-23. Nowhere does she
allege that she came back from FMLA leave early, was denied any leave, or was placed in a
different position or a position with less pay on return from leave. See Harris v. Metro. Gov’t of
Nashville and Davidson Cnty., TN, 594 F.3d 476, 482 (6th Cir. 2010) (discussing FMLA
benefits).
Plaintiff does state that her supervisor “harassed” her about the quality of her work. The
statutory language and some non-binding case law suggests that harassment could be
“interfere[nce] with . . . any right provided under this subchapter.” 29 U.S.C. §2615 (a)(1);
Johnston v. Pet’s Rx, Inc., No. 06-1566-KI, 2007 WL 2746918, at *12 (D. Or. Sept. 19, 2007);
and Mueller v. J.P. Morgan Chase & Co., No. 1:05 CV 560, 2007 WL 915160 at * 11 (N.D.
Ohio March 23, 2007). Other non-binding case law suggests just the opposite. Emmons v. City
University of New York, 715 F.Supp.2d 394, 418 (E.D.N.Y. 2010) (stating that “[t]he mere fact
that plaintiff has alleged that she was ‘harassed’ by Smith during her leave does not establish that
8
any of her actual benefits were denied or subject to interference”) and Simpson v. Office of Chief
Judge of Circuit Court of Will Cnty., 520 F.Supp.2d 998, 1009 n. 10 (N.D. Ill. 2007).
Regardless, even if freedom from harassment is a benefit protected by the FMLA, Plaintiff has
provided no evidence as to the content or frequency of such harassment that suggests severity or
pervasiveness sufficient to alter any terms or conditions of Plaintiff’s employment protected by
the FMLA.
The evidence in this case simply establishes an interference with her FMLA rights. To
the contrary, over many years, Defendant accommodated Plaintiff’s every request for such leave.
Though Plaintiff may have felt harassed, Plaintiff does not allege any actual acts that constitute
interference with or denial of FMLA rights.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff’s claims for disability discrimination and
retaliation under the KCRA and interference and retaliation under the FMLA are DISMISSED
WITH PREJUDICE.
Plaintiff’s failure to accommodate claim remains under submission.
August 31, 2011
cc:
Counsel of Record
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?