Johnson v. TrailBlazer Health Enterprises LLC
Filing
54
MEMORANDUM OPINION AND ORDER granting 35 Motion for Summary Judgment. (Ordered by Judge Jane J Boyle on 10/15/2012) (Judge Jane J Boyle) Modified on 10/15/2012 (ykp).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KARLA FALLON,
Plaintiff,
v.
TRAILBLAZER HEALTH
ENTERPRISES, LLC,
Defendant.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 3:11-CV-1449-B
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant TrailBlazer Health Enterprises LLC’s Motion for Summary
Judgment (doc. 35), filed on April 13, 2012. For the reasons set for below, the Court GRANTS
Defendant’s Motion.
I.
BACKGROUND
Plaintiff Karen Fallon (“Fallon”)1 was an employee of Defendant TrailBlazer Health
Enterprises LLC (“TrailBlazer”) from June 16, 2008 until her termination approximately fourteen
months later on August 21, 2009. Doc. 2, Original Pet. at 3. Fallon served as an Auditor I on one
of TrailBlazer’s three Home Office Teams in its Audit and Reimbursement Division. Id. TrailBlazer
works with the federal agency Centers for Medicare & Medicaid Services (“CMS”) to process
Medicare claims and ensure that Medicare providers are paid for their services. Id.; doc. 36, Br. at
1
Plaintiff changed her name from Karen Johnson to Karen Fallon during the course of litigation. Doc.
25, Notice.
1
2. TrailBlazer’s auditors apply accounting rules to ensure that payments made to providers are
accurate. Doc. 38-12, App. at 870 (Long Decl.). The auditors first review the providers’ costs reports
and ensure that all required documentation is submitted and then prepare tentative settlements or
rejection letters. Id. at 871-72; Doc. 41, Resp. at 6-7. Each Medicare file goes through several rounds
of review, and the files constantly change hands between TrailBlazer employees, creating a sort of
“assembly-line.” Doc. 38-12, App. at 871-72; Doc. 41, Resp. at 7. The files and documents within
are provided in hard copy only. Doc. 38-12, App. at 870-71; Doc. 41, Resp. at 7. Because some
documents contain protected health information and personally identifiable information data of the
patients receiving the Medicare services, TrailBlazer does not permit those documents to leave its
office space. Doc. 38-12, App. at 873. In addition to reviewing documents and providing settlements,
auditors must also communicate with providers who complain about the payment calculations in
attempting to reach settlements. Id. at 870. TrailBlazer’s contract with CMS subjects it to strict
deadlines for completing these settlements. Consequently, TrailBlazer has established its own
deadlines for ensuring that its work is completely in a timely manner and instituted mandatory office
hours from 9am to 3pm, with a one-hour lunch break permitted between 11am and 1pm. Id. at 873.
Fallon alleges in her Original Petition that she suffered from undiagnosed mild panic attacks
in the past, but that her anxiety increased in the fall of 2008, several months after working for
TrailBlazer. Doc. 2, Original Pet. at 3. Fallon states that, sometime between December 2008 and
March 2009, she informed her supervisor at TrailBlazer, Christine Long (“Long”), that she suffered
from Panic Disorder and Obsessive Compulsive Disorder. Id. At times, Fallon attributes her anxiety
to incidents from her childhood, but at other times Fallon claims that her anxiety was caused by
Long and her work at TrailBlazer. See doc. 41, Resp. at 10.
2
Fallon and the staff at TrailBlazer, including Long and Human Resources Manager Colette
Walker (“Walker”), were in communication by email, telephone, and face-to-face meetings to
address what sort of accommodations might assist Fallon so that she could attend work and complete
her assignments. Doc. 38-12, App. at 876-79 (Long Decl.); Doc. 41, Resp. at 12. Fallon’s mother and
physician participated to varying degrees in offering suggestions. Doc. 42-6, Dr. Chavason Dep.; Doc.
42-7, Johnson Dep. These communications began in March 2009 and continued through August
2009. TrailBlazer informed Fallon several times that she should submit FMLA paperwork to protect
any absences that she might accumulate due to her anxiety, but Fallon never completed the
paperwork. Doc. 38-12, App. at 876-77 (Long Decl.); Doc. 42-3, App. at 39 (Fallon Dep.); Doc. 41,
Resp. at 15.
Fallon’s trail of unexcused absences began in mid-December of 2008. Fallon continued to
arrive late to work or miss work altogether, both scheduled and unscheduled, most for leave without
pay. Doc. 41, Resp. at 10. In 2009, it appears that Fallon was absent from work approximately part
or all of: five days in January, five days in February; four days in March; fourteen days in April; three
days in May; nine days in June; twenty days in July; and every day in August until her termination
on August 21st. See Doc. 38, App. at 352-58 (Absence Summary Report), 927-958 (Employee Time
Sheets), 970-1015 (Emails with Absence Reports). Fallon submitted doctor’s notes for some of her
absences. Doc. 38-14, App. at 980, 984-85, 988, 991. Fallon was warned that her unexcused
absences and late arrivals would not be tolerated. Doc. 36, Br. at 8-16; Doc. 38-14, App. at 1000,
1003 (Corrective Action Reports).
During the significant periods of time in which Fallon did not go to the office and did not
perform any work, Fallon did not complete her assignments by their deadlines. Doc. 38-14, App. at
3
1003 (Corrective Action Report). Due to Fallon’s failure to complete her assignments by their
deadlines and TrailBlazer’s fear that it would not, in turn, meet the deadlines imposed by CMS under
its contract, TrailBlazer was forced to reassign Fallon’s work to other auditors on several occasions.
Id. at 1003 (Corrective Action Report), 1004 (Email), 1030 (Email). Despite requests from Long to
do so, Fallon refused to make up the time that she missed or work from home during non-office
hours, such as weekends and evenings, to complete her assignments by their due date. Id. at 1031
(Email), 1046 (Email). Additionally, Long gave Fallon multiple extensions of time to complete her
projects, but Fallon continued to miss those extended deadlines by refusing to work during office
hours or outside of office hours. Id. at 1033, 1046.
Fallon was absent from work for part of each day in the first week of August and every day
from August 7th through August 21st. She also refused to work from home, despite being granted
unequivocal permission to do so on August 17, 2009. Consequently, TrailBlazer terminated Fallon
on August 21, 2009.
Soon after her termination, Fallon contacted the Equal Employment Opportunity
Commission (“EEOC”). On August 28, 2009, she completed an EEOC intake questionnaire. Doc.
38-6, App. at 424-27 (Intake Questionnaire). The intake form gave Fallon the option to file a charge
against TrailBlazer at that time or decline to file a charge and instead simply request that an EEOC
representative contact her to discuss her claim. Id. at 427. The form indicated that the failure to file
a charge at that time might subject Fallon to waiver of the right to file a charge. Id. Fallon declined
to file a charge and instead sought more information. Id.
Fallon emailed the EEOC on September 17, 2009 and November 3, 2009 asking about her
claim. Doc. 38-16, App. at 1106, 1108-09. Fallon alleges that she made a phone call to the EEOC
4
sometime prior to December 1, 2009 to make a formal charge by phone. Doc. 42-8, App. at 250-51.
The EEOC contains no documentation of that phone call. Doc. 38-16, App. at 1106 (Anderson
Aff.). The following year, on November 4, 2010, Fallon filed a formal EEOC charge against
TrailBlazer. Doc. 38-16, App. at 1104 (EEOC Charge). The charge was eventually dismissed without
a determination on the merits. Doc. 38-16, App. at 1107 (Anderson Aff.).
Fallon filed an Original Petition in the Judicial District Court of Dallas County on June 20,
2011. Doc. 2., Original Pet. The petition alleges that TrailBlazer violated the Texas Commission on
Human Rights Act (“TCHRA”), Texas Labor Code §§ 21.051 and 21.128, and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12102 et seq., because TrailBlazer allegedly “failed or refused
to make reasonable workplace accommodations to Plaintiff’s known mental limitation.” Id. at 6, 7.
She seeks damages and attorney’s fees and costs. Id. at 7. On June 30, 2011, TrailBlazer removed the
case to this Court on the basis of original federal jurisdiction. Doc. 2, Notice. On April 13, 2012,
TrailBlazer filed a Motion for Summary Judgment on both of Fallon’s claims. Doc. 35. TrailBlazer
raises an affirmative defense that Fallon failed to timely exhaust administrative remedies and seeks
summary judgment on the merits. Doc. 36, Br. at 33-35. Fallon filed a Motion to Strike the
affirmative defense (doc. 39), which this Court denied. Doc. 53.
The parties have submitted summary judgment evidence, including deposition testimony of
Karla Fallon, Patricia Johnson, Christine Long, Melody Peters, Demetria Redmon, Colette Walker,
and Dr. Edward Chavason; certified records from Fallon’s previous employment; declarations of
Fallon, Peters, Redmon, Long, and Walker; affidavits of Fallon and Alma Anderson; TrailBlazer
employment documents, absence reports, and performance review forms; emails and letters; and
EEOC documents.
5
Original federal jurisdiction exists pursuant to 28 U.S.C. § 1331.
II.
LEGAL STANDARDS
A.
Summary Judgment Standard
Summary judgment is appropriate when the pleadings and record evidence, taken as a whole,
show that 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. Only disputes about material facts preclude a grant of
summary judgment, and “the substantive law will identify which facts are material.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The burden is on the summary judgment movant to prove that no genuine issue of material
fact exists. Latimer v. SmithKline & French Labs., 919 F.2d 301, 303 (5th Cir. 1990). If the nonmovant bears the burden of proof at trial, the summary judgment movant need not support its
motion with evidence negating the non-movant’s case. Rather, the movant may satisfy its burden
by pointing to the absence of evidence to support the non-movant’s case. Id.; Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Once the movant has met its burden, the non-movant must show that summary judgment
is not appropriate. Little, 37 F.3d at 1075. “This burden is not satisfied with ‘some metaphysical doubt
as to material facts,’ . . . by ‘conclusory allegations,’ . . . by ‘unsubstantiated assertions,’ . . . or by only
a ‘scintilla’ of evidence.” Id. (internal citations omitted). Instead, the non-moving party must “come
forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). To determine
whether a genuine issue exists for trial, the court must view all of the evidence in the light most
6
favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could
return a verdict for the non-movant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000). The Court
will not make credibility determinations, weigh the evidence, or draw inferences but instead confine
its inquiry to facts material under the governing legal standard. Anderson, 477 U.S. at 255.
III.
ANALYSIS
A.
Timely Exhaustion of Administrative Remedies
A threshold issue before the Court is whether Fallon’s Original Petition is barred for failure
to timely exhaust her administrative remedies. TrailBlazer argues that Fallon failed to file a timely
EEOC charge as a precondition to her Original Petition, whereas Fallon claims that her EEOC
charge was timely.
An employee raising a discrimination claim against her employer under the ADA or TCHRA
must first exhaust her administrative remedies with the EEOC or Texas Human Rights Commission
prior to filing a claim in court. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996). The
parties agree that Fallon had a 300-day period from the date of her termination to file a charge
against TrailBlazer with the EEOC in order to preserve her ADA claim. 42 U.S.C. § 2000e-5(e)(1);
Mohasco Corp. v. Silver, 447 U.S. 807, 815-17 (1980); Doc. 36, Br. at 33; Doc. 41, Resp. at 20. Fallon
had only 180 days within which to file a formal charge to preserve her TCHRA claim. See Tex. Lab.
Code § 21.202.
TrailBlazer provides Fallon’s EEOC charge as summary judgment evidence that Fallon did
not file the EEOC charge against TrailBlazer until November 4, 2010, approximately 440 days after
her termination and far outside of the 180-day and 300-day windows. Doc. 36, Br. at 34. The Charge
7
of Discrimination admits that Fallon was terminated on August 21, 2009 and alleges that she was
denied reasonable accommodations for her disability in violation of the ADA. Doc. 38-16, App. at
1104 (EEOC Charge). Fallon signed the charge and dated it “11-4-10,” and the EEOC stamp
indicates a receipt date of “2010 Nov 24.”2 Id.
Fallon attempts to create a dispute of fact that she waited until November 4, 2010 to file her
EEOC charge. Doc. 41, Resp. at 20. Fallon submits as summary judgment evidence her own affidavit
stating that she filed a formal EEOC charge by telephone sometime after August 28, 2009 and “in
no event after December 1, 2009.” Doc. 42-8, App. at 250. Fallon thus argues that her filing was
timely for both her ADA and TCHRA claims. Doc. 41, Resp. at 20. Nonetheless, Fallon admits that
she did not sign a formal charge until November 4, 2010. Id.
TrailBlazer replies that Fallon’s affidavit is not entitled to any weight because it is self-serving.
Doc. 47, Reply at 17. TrailBlazer submits additional summary judgment evidence showing that the
EEOC has no record of Fallon filing a formal charge until November 4, 2012. Doc. 36, Br. at 35;
Doc. 47, Reply at 17-18. First, TrailBlazer provides an EEOC intake questionnaire, signed by Fallon
on August 28, 2009. Doc. 38-6, App. at 424-27 (Intake Questionnaire). The intake form offered two
options: file a charge of discrimination or decline to file a charge of discrimination but seek contact
with an EEOC employee to decide whether to file a charge. Id. at 427. The form warns that failure
to file a charge at that time could cause Fallon to lose her rights for untimely filing. Id. Fallon selected
the option declining to file a charge at that time. Id.
TrailBlazer also submits an affidavit of Alma Anderson, an employee of the EEOC who was
2
Although the receipt date is 20 days after the signature date, TrailBlazer concedes that the
appropriate date of the charge is the earlier date listed by Fallon’s signature. Doc. 36, Br. at 34.
8
in contact with Fallon regarding her case, and emails between the EEOC and Fallon as summary
judgment evidence. Anderson states that Fallon provided information related to a potential charge
on August 28, 2009 but chose to “not complete the charge filing process on that date.” Doc. 38-16,
App. at 1106 (Anderson Aff.). Anderson states that Fallon next submitted additional information
to support her claim on September 17, 2009 and re-sent that same information by email on
September 29, 2009. Id. On November 3, 2009, Fallon sent an email asking if the EEOC needed
anything else from her and requested an update on the status of her case. Id. at 1109 (Email). On
November 4, 2009, Anderson advised Fallon her case was assigned to Doris Brown. Id. at 1106
(Anderson Aff.), 1108 (Email). According to Anderson, Fallon then sent an email to Anderson and
Brown on December 16, 2009 stating “I have the original claim filed, but I need some advice . . .
Please help me or guide me in the right direction if you can.” Id. at 1108 (Email). After Fallon sent
the December 16th email, Anderson states that the “available records do not indicate any
communication between EEOC and [Fallon],” id. at 1106 (Anderson Aff.), until over eight months
later when Fallon sent an email to Anderson on September 1, 2010 stating that she had not heard
from the EEOC for “a year.” Id. at 1110 (Email). Anderson responded that Fallon’s case was reassigned to Tammy Johnson, because Brown had left the EEOC. Id. at 1106 (Anderson Aff.).
Anderson states that the potential charge was then formalized. Id. Alma concludes that the EEOC
dismissed the charge without any findings. Id. at 1107.
The Court concludes that the summary judgment evidence submitted by TrailBlazer
demonstrates that Fallon did not formally file and sign a charge with the EEOC until November 4,
2010. Fallon cannot successfully raise a dispute of fact by merely stating that she recalls filing a
charge by phone sometime during the fall or early winter of 2009. Her affidavit provides no
9
information regarding the details of her conversation with the EEOC, see Ramirez v. City of San
Antonio, 312 F.3d 178, 184-85 (5th Cir. 2002), Stokes v. Dolgencorp, Inc., 367 F. App’x 545, 548-49
(5th Cir. 2010), and she admits that she never actually signed a formal charge until the following
year. Fallon has failed to “come forward with specific facts showing that there is a genuine issue for
trial.” Matsushita Elec., 475 U.S. at 587 (internal quotation marks and emphasis omitted). Her
burden “is not satisfied with some metaphysical doubt as to material facts, by conclusory allegations,
by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal
citations and quotation marks omitted). The Court therefore determines that Fallon’s formal EEOC
charge was untimely.
In apparent anticipation that the Court would find Fallon’s EEOC charge untimely, Fallon
focuses her summary judgment Response on persuading the Court that it should apply equitable
tolling to the timing of her EEOC charge. Doc. 41, Resp. at 21. Fallon contends that 1) she was not
represented by counsel during the administrative process, 2) she initiated the EEOC complaint
process early, and 3) she followed up with the EEOC several times about her case but, by the EEOC’s
own admission, the EEOC was the cause of the delay.3 Id. at 21-22. As such, Fallon requests that the
Court toll the limitations period and find her formal EEOC charge to be timely. Id.
3
Fallon provides as summary judgment evidence a letter from the EEOC to TrailBlazer stating that,
due to the fault of the EEOC and not any fault of Fallon, the EEOC failed to timely notify TrailBlazer of
Fallon’s complaint, doc. 42-8, App. at 245 (Letter), which TrailBlazer supplements with the Notice. Doc. 3816, App. at 1102. Although Fallon submits the letter, she does not argue that the Notice constitutes a formal
charge; that the Notice proves that Fallon filed a charge prior to November 4, 2010; or that the relation back
of her signature should apply to the date of the Notice (which would fall outside of the limitations period).
See Edelman v. Lynchburg College, 535 U.S. 106, 116 (2002). Instead, Fallon submits the letter only to support
her argument that the EEOC was slow to respond to her requests for assistance. Similarly, Fallon does not
argue that her intake questionnaire or emails to the EEOC sent in September, November, and December of
2009 constitute a formal charge. See Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008).
10
The limitations period for filing a formal EEOC charge can be extended through equitable
tolling or estoppel. AMTRAK v. Morgan, 536 U.S. 101, 113 (2002); Zipes v. TWA, 455 U.S. 385, 393
(1982) (holding that “filing a timely charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to
waiver, estoppel, and equitable tolling”); Taylor v. UPS, Inc., 554 F.3d 510, 521 (5th Cir.2008).
However, these doctrines should be “applied sparingly.” Morgan, 536 U.S. at 113; Manning v. Chevron
Chem. Co. LLC, 332 F.3d 874, 880 (5th Cir. 2003). “The plaintiff has the burden to provide
justification for equitable tolling.” Granger v. Aaron's, Inc., 636 F.3d 708, 712 (5th Cir. 2011). There
are three bases upon which to apply equitable tolling: “1) the pendency of a suit between the same
parties in the wrong forum; (2) the plaintiff’s lack of awareness of the facts supporting his claim
because of the defendant’s intentional concealment of them; and (3) the EEOC’s misleading the
plaintiff about his rights.” Manning, 332 F.3d at 880 (citing Blumberg v. HCA Mgmt. Co., 848 F.2d
642, 644 (5th Cir. 1988)). Fallon alleges that the third basis applies to toll her limitations period
because the EEOC failed to “properly handle their part in the process” by not responding to her
December 16, 2009 email requesting guidance in the EEOC process. Doc. 41, Resp. at 21.
Fallon has not demonstrated that she is entitled to equitable tolling. She has presented no
argument to persuasively explain why she was entitled to further guidance from the EEOC as to
when a timely filing should be made or how such lack of guidance by the EEOC as to filing a charge
constitutes “misleading” by the EEOC. See Manning, 332 F.3d at 880. Indeed, Fallon appears to have
been aware that there was a short time frame for filing an EEOC charge, as her September 1, 2010
email explained: “I want to make sure I don’t run out of time on this claim.” Doc. 38-16, App. at
1110 (Email). The EEOC’s failure to respond to her prior request for additional guidance cannot
11
constitute the required “affirmative misrepresentations” by the EEOC. See Tillison v. Trinity Valley
Elec. Coop., Inc., 204 F. App’x 346, 348 (5th Cir. 2006)(citing Blumberg, 848 F.2d at 644, and
Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002)); Ramirez, 312 F.3d at 184-85; Granger, 636
F.3d at 712. She has not demonstrated an entitlement to equitable tolling under the third prong of
the test. Manning, 332 F.3d at 880.
The Fifth Circuit has held that a district court may apply equitable tolling even if none of the
three bases applies, but only where the “plaintiff has actively pursued judicial remedies but filed a
defective pleading, as long as the plaintiff has exercised due diligence.” Granger, 636 F.3d at 712
(quoting Perez v. United States, 167 F.3d 913, 918 (5th Cir. 1999). Fallon was made aware in August
2009 that failure to timely file a formal charge would cause her to lose her rights. See Doc. 38-6, App.
at 427 (Intake Questionnaire). Fallon declined to file a formal charge at that time. Although Fallon
emailed the EEOC a few times in September and November 2009 with response and again on
December 16, 2009 without response, Fallon waited until September 1, 2010 to communicate further
with the EEOC. Her September 1st follow-up correspondence already fell outside of the 180-day and
300-day windows for filing a charge. Fallon did not sign the charge until November 4, 2012, also
outside of the limitations period. See Tillison, 204 F. App’x at 348. The Court concludes that Fallon
has not shown that she diligently pursued her claim from December 2009 to September 2010, during
which time the limitations period passed.
Accordingly, the Court determines that Fallon’s EEOC claim was untimely and that equitable
tolling does not apply. Because Fallon failed to exhaust her administrative remedies in a timely
manner, see Dao, 96 F.3d at 788-89, the Court GRANTS summary judgment to TrailBlazer on
Fallon’s claims under the ADA and TCHRA.
12
B.
ADA Discrimination
Even if the Court had found that Fallon’s EEOC charge was timely, the Court would grant
summary judgment to TrailBlazer on the merits of Fallon’s ADA claim. A plaintiff who alleges
discrimination on the basis of a disability can prevail under the ADA by showing that “1) he has a
disability; 2) he is qualified for the position in which he seeks employment; and 3) he was
discriminated against because of his disability.” Griffin v. UPS, 661 F.3d 216, 222 (5th Cir. 2011)
(citing Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007)). Employer discrimination
includes situations where an employer fails to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee.” 42 U.S.C. § 12112(b)(5)(A); Griffin, 661 F.3d at 222. However, an employer
does not violate the ADA where it can “demonstrate that the accommodation would impose an
undue hardship on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A).
TrailBlazer admits for purposes of summary judgment that Fallon has a disability under the
first factor. Doc. 36, Br. at 35. TrailBlazer instead contends that the summary judgment record is
devoid of evidence showing that it discriminated against Fallon because of her disability by failing
to give her reasonable accommodations. See Latimer, 919 F.2d at 303; Little, 37 F.3d at 1075. Indeed,
TrailBlazer argues that the summary judgment record demonstrates as a matter of law that Fallon
was not an individual qualified for accommodations but that TrailBlazer gave her reasonable
accommodations anyway and therefore did not discriminate against her. TrailBlazer submits as
summary judgment evidence emails between Fallon and the staff at TrailBlazer and the deposition
testimony of Long and Walker.
13
Regardless of whether Fallon was a qualified individual,4 TrailBlazer offered her numerous
suggestions for reasonable accommodations, most of which were rejected by Fallon. See Jakubowski
v. Christ Hosp., Inc., 627 F.3d 195, 203 (6th Cir. 2010); Doc. 38-6, App. at 398 (Email). These
included being moved to a different work team, being moved to a quieter building, and working
evening and/or weekend hours, all to avoid interaction with others alleged to cause Fallon anxiety.
Doc. 41, Resp. at 14. According to Long’s deposition testimony, TrailBlazer accepted and effectuated
Fallon’s request to be moved to a quieter cubicle; her request for more break time (Long explained
that she could take as many breaks as she needed so long as she got her work done); and her request
to use a copier on a different floor of the office building (Fallon was told that she could use any copier
at any time). Doc. 38-12, App. at 876-77 (Long Decl.). Long and Walker stated that Fallon also
requested to work from home part-time (while maintaining a full-time schedule), but when
TrailBlazer asked Fallon to be more specific with what days or time frames she needed to work from
home, Fallon would not respond. Doc. 38-12, App. at 877-78 (Long Decl.); Doc. 38-10, App. at 698,
703 (Walker Dep.). TrailBlazer left open the possibility of working from home if Fallon could provide
more specifics. Eventually, on August 17, 2009, TrailBlazer granted Fallon’s request to work from
home during certain hours every day even though Fallon never offered specifics on when or how long
she would work from home. Doc. 38-6, App. at 397 (Email). As evidenced by an email between
4
TrailBlazer argues that Fallon was not a qualified individual, because her disability prevented her
from performing the essential functions of her job, such as attending work, completing assignments by their
deadlines, and interacting with others. See Rogers v. Int’l Marine Terminals, 87 F.3d 755, 759 (5th Cir. 1996)
(holding that “an essential element of any … job is an ability to appear for work … and to complete assigned
tasks within a reasonable period of time” (citing Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir.1994), and Tyndall
v. Nat'l Educ. Centers, Inc., 31 F.3d 209, 213 (4th Cir.1994)); see also Samper v. Providence St. Vincent Med.
Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (“It is a rather common-sense idea that if one is not able to be at
work, one cannot be a qualified individual.” (internal quotation marks and alterations omitted)).
14
Walker and Fallon, Walker explained to Fallon that she was permitted to work from home outside
of the core hours of 9am-3pm, with a lunch break that could be taken at home sometime during the
hours of 11am-1pm as well. Id. Fallon was required to maintain a full-time schedule of working 40
hours per week, but could thus work from home “ten or more hours per week, depending on the
length of [her] lunch break.” Id. Walker made clear that Fallon needed to return to work as soon as
possible but no later than August 21, 2009. Id. Despite failing to work a single full day during the
month of August and despite the fact that Fallon had not been to the office at all since August 7th,
Fallon failed to return to the office on August 21st or any day thereafter. Doc. 38-4, App. at 357-58.
She also failed to complete any work from home.
Fallon admits that TrailBlazer ultimately granted her primary requested accommodation of
working at home part-time. Doc. 41, Resp. at 15, 25 n.109, 27. Instead, she argues that the
accommodation came too late. Id. at 25 n.109, 27-28. The fact that the accommodation most sought
by Fallon came later than the others does not satisfy Fallon’s burden under the statute to show that
TrailBlazer failed to offer reasonable accommodations. First, the Court is not convinced that
TrailBlazer was even required to offer Fallon an accommodation of working from home, because
some documents that Fallon needed to complete her job contained sensitive information that was
not permitted to leave the confines of TrailBlazer’s office and because the files–which were all in hard
copy–needed to frequently change hands between TrailBlazer’s employees.5 Hypes v. First Commerce
Corp., 134 F.3d 721, 726-27 (5th Cir. 1998). Second, Fallon never provided the specifics requested
5
According to Walker, TrailBlazer considered using a courier service to shuttle documents between
Fallon’s home and TrailBlazer’s office, but reasonably determined that a courier service would still cause delay
in processing files. Doc. 38-10, App. at 704 (Walker Dep.).
15
by TrailBlazer as to what days and for what period of time Fallon would need to work from home to
accommodate her disability. See Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996).
Because Fallon’s needs were not obvious, Fallon should have participated to a greater degree in
informing TrailBlazer of the specifics of her request to work from home part-time. See Taylor, 93 F.3d
at 165.
In any event, the uncontroverted evidence in the summary judgment record shows that
TrailBlazer actively and continuously attempted to communicate and brainstorm with Fallon in
attempt to retain her as an employee, granted multiple accommodations over several months,
granted the primary accommodation that was requested, and even encouraged Fallon to submit
FMLA paperwork to protect her absences. Doc. 38-10, App. at 696-97, 701 (Walker Dep.). No
reasonable jury could find that TrailBlazer failed to reasonably accommodate Fallon’s disability. See
Griffin v. UPS, 661 F.3d 216, 224 (5th Cir. 2011); Seaman v. CSPH, Inc., 179 F.3d 297, 300-01 (5th
Cir. 1999). TrailBlazer has adequately supported its contention with summary judgment evidence
that its reasons for terminating Fallon were her excessive unexcused absences despite providing
accommodations and her failure to complete her work. See Scott v. JP Morgan Chase Bank, 373 F.
App’x 528, 529 (5th Cir. 2010). Accordingly, Fallon’s ADA claim fails because the summary
judgment record supports the conclusion that TrailBlazer’s conduct did not constitute discrimination
against Fallon because of her disability.
IV.
CONCLUSION
For the reasons stated above, Defendant TrailBlazer Health Enterprises LLC’s Motion for
Summary Judgment (doc. 35) is GRANTED.
16
SO ORDERED.
DATED October 15, 2012.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
17
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?