Adetimehin v. Healix Infusion Therapy, Inc.

Filing 27

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART 23 MOTION to Strike 21 Response in Opposition to Motion for Summary Judgment, GRANTING 17 MOTION for Summary Judgment (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FUNMILAYO ADETIMEHIN,
Plaintiff,
VS.
HEALIX INFUSION THERAPY, INC.,
Defendant.

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CIVIL ACTION NO. 4:14-CV-334

MEMORANDUM AND ORDER
Plaintiff Funmilayo Adetimehin brought this lawsuit alleging that she was denied a
reasonable accommodation of her disability and suffered a hostile work environment in violation
of the Americans with Disabilities Act (ADA). Pending before the Court are Defendant Healix
Infusion Therapy, Inc.’s Motion for Summary Judgment (Doc. No. 17) and Motion to Strike
(Doc. No. 23). For the reasons set forth in this order, Defendant’s Motion to Strike is
GRANTED IN PART and DENIED IN PART. Defendant’s Motion for Summary Judgment is
GRANTED.
I.

BACKGROUND
Plaintiff Funmilayo Adetimehin began working as a Verification Specialist for Healix

Infusion Therapy, Inc., a healthcare company, on June 9, 2008. Decl. of Liz Orphé, Doc. No. 174 at 12. As a Verification Specialist, she was responsible for a variety of tasks related to
administering patients’ insurance benefits. Id. at 12-13.
In April 2011, Ms. Adetimehin began experiencing symptoms of a cerebral aneurysm.
Adetimehin Dep., Doc. No. 17-2 at 63:16-64:11.1 In October 2011, Ms. Adetimehin was

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When citing to Ms. Adetimehin’s deposition, the Court refers to the original pagination of the
deposition, not Defendant’s Bates stamps or the pagination supplied by ECF.
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approved for four weeks of Family and Medical Leave Act (FMLA) leave to allow her to have
and recover from surgery for the aneurysm. Id. at 66:5-67:3. The surgery involved the insertion
of a coil into her brain. Id. at 94:1-6, 95:22-24. Her request for FMLA leave was the first time
she informed Healix about her aneurysm. Id. at 67:15-17. After her surgery in November 2011,
Ms. Adetimehin took medication and had regular angiograms to ensure that the procedure had
been effective. Id. at 94:20-95:1. After each of her angiograms, she was told that the procedure
had worked. Id. at 96:14-16.
From October through December 2012, Ms. Adetimehin was disciplined or counseled on
several occasions for poor performance. Decl. of Diana Pena ¶ 9, Doc. No. 17-4 at 9-10. On
December 7, 2012, she was admitted to the hospital for five days for another angiogram. Letter
from Huyen Dong, M.D. (December 12, 2012), Doc. No. 17-2 at 144; Adetimehin Dep., Doc.
No. 17-2ar 114:14-16. Shortly after she returned to work, Ms. Adetimehin spoke with Liz Orphé,
Healix’s Vice President of Human Resources, regarding bullying by her supervisor, Kelley
Adams. Orphé Decl. at ¶ 9. Ms. Adetimehin made a written complaint about Ms. Adams on
January 7, 2013. Adetimehin Grievance Letter, Doc. No. 17-2 at 146. In that letter, Ms.
Adetimehin stated that she was seeking FMLA leave because the stress and depression caused by
Ms. Adams’s bullying caused her to “[find] it difficult to concentrate on [her] job in order to be
fully productive.” Id. As a result of the investigation of the Grievance Letter, Ms. Adams was
demoted and given a written counseling. Orphé Decl. at ¶ 11.
Ms. Adetimehin began her final period of FMLA leave on January 4, 2013. Letter from
Liz Orphé to Plaintiff (January 8, 2013), Doc. No. 17-2 at 148. The health care provider who
endorsed her request for FMLA leave was Sally Creed, a licensed professional counselor.
Designation Notice (Family and Medical Leave Act), Doc. No. 17-2 at 150. Ms. Creed stated

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that Ms. Adetimehin suffered from “chronic stress evidenced by physical shaking, constant
headaches, inability to concentrate or focus on tasks, frequent mistakes, extremely fearful (of
dying), worry and anxiety.” Id. at 151. She recommended an initial period of eight weeks of
leave, to run to March 5, 2013, followed by a part-time schedule for an indefinite period. Id. at
152. Ms. Orphé approved the leave from January 4, 2013 to March 5, 2013, but did not address
the request for a part-time schedule. Orphé Letter (January 8, 2013), Doc. No. 17-2 at 148.
On March 5, when Plaintiff’s initial leave was set to expire, Ms. Creed submitted a
request for Ms. Adetimehin’s leave to be extended to April 3, 2013. Certification of Health Care
Provider for Employee’s Serious Health Condition, Doc. No. 17-2 at 154-157. She also renewed
her request that Ms. Adetimehin be put on a part-time schedule after her FMLA leave ended. Ms.
Orphé responded on March 18, 2013, explaining that Ms. Adetimehin’s 12 weeks of FMLA
leave expired on March 28, 2013. Letter from Liz Orphé to Plaintiff (March 18, 2013), Doc. No.
17-2 at 158. Because Plaintiff would not be able to return to work before her leave expired,
Healix would “consider [her] to have voluntarily terminated [her] employment with Healix.” Id.
After receiving this letter, Ms. Adetimehin did not contact Healix or offer to return to work
before her FMLA leave expired. Adetimehin Dep., Doc. No. 17-1 at 139-140:29-7; 140:11-16.
Ms. Adetimehin filed a charge with the Equal Employment Opportunity Commission
(EEOC) on April 25, 2013, alleging that Defendant failed to reasonably accommodate her
disability. EEOC Charge of Discrimination, Doc. No. 17-4 at 4-5. The EEOC issued a right to
sue letter on November 13, 2013. Notice of Right to Sue (Issued on Request), Doc. No. 17-4 at 3.
Ms. Adetimehin filed this lawsuit on February 12, 2014. Complaint, Doc. No. 1.

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II.

MOTION TO STRIKE
Defendant has moved to strike portions of Plaintiff’s Affidavit, submitted as one of three

exhibits to her Response to Defendant’s Motion for Summary Judgment. Doc. No. 21-3.
Specifically, Defendant seeks to exclude paragraphs 4, 5 and 6 of the Affidavit because they
would be inadmissible at trial.
A plaintiff responding to a motion for summary judgment must show that there is a
question of material fact sufficient to bring the case to a jury. To do so, the plaintiff’s evidence
must be admissible in some form at trial. Fed. R. Civ. P. 56(c)(2). An affidavit or declaration
used to support or oppose a motion for summary judgment must 1) be made on personal
knowledge, 2) set out facts that would be admissible in evidence, and 3) show that the affiant or
declarant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4). Merely asserting
personal knowledge is not sufficient: “Affidavits asserting personal knowledge must include
enough factual support to show that the affiant possesses that knowledge.” Thomas v. Atmos
Energy Corp., 223 Fed. Appx. 369, 374 (5th Cir. 2007) (citing El Deeb v. Univ. of Minn., 60
F.3d 423, 428 (8th Cir. 1995)).
Defendant first challenges the following statement in Plaintiff’s affidavit:
I have personal knowledge of other Healix employees who worked part-time schedules.
This includes the Intake Manager, Kelley Adams, who went from full-time to part-time in
the fall of 2012 for personal matters. Intake managers are superior to verification
specialists.
Adetimehin Aff. at ¶ 4. Defendant argues that this statement does not include enough factual
support to show that Ms. Adhetimehin knew that Ms. Adams worked a part-time schedule.2 In
response, Plaintiff first points to her deposition testimony — which was not incorporated into her
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Defendant also contests the accuracy of this statement. For the purposes of deciding the motion
to strike, the Court considers only whether the affidavit, on its face, contains sufficient factual
support to show that the affiant has personal knowledge of the facts asserted.
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response to Defendant’s summary judgment motion — that her colleague, Simone White, had
told her that Kelley Adams had gone part-time so that she could go to school. Even if Plaintiff’s
affidavit contained this information, it would nonetheless be inadmissible hearsay, and Plaintiff
has not argued that it would come in under any of the hearsay exceptions. See Fed. R. Evid. 801.
Next, Plaintiff asserts in her brief that she “personally witnessed Ms. Adams’ hours decrease,
and whether that was a change in position or a mere reduction of her salaried hours was not of
Plaintiff’s concerns.” Had Ms. Adetimhin included this statement in her affidavit, it may have
established her personal knowledge of Ms. Adams’s hours. But a statement in a brief is not
evidence permitted by Rule 56. See Fed. R. Civ. P. 56(c)(1)(A). The Court therefore concludes
that it is appropriate to strike paragraph 4 of Ms. Adetimehin’s affidavit.
Next, Defendant objects to a portion of paragraph 5 of the affidavit:
My friend, Simone White, sent me an email after I left for my second four-week FMLA
leave. The email informed me of the manager’s words and actions to one another about
my health situation.
Adetimehin Aff. at ¶ 5. Defendant contends that 1) Ms. Adetimehin has not shown a foundation
for her knowledge of these facts and 2) the statement is hearsay. To the contrary, Ms.
Adetimehin has clearly set forth the basis for her knowledge: the e-mail she received from Ms.
White. And the statement is not hearsay. To be hearsay, a statement must be “a person’s oral
assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed.
R. Evid. 801(a). Neither the fact that Ms. White sent the email nor Ms. Adetimehin’s description
of the email’s contents falls within this definition. Therefore, the Court will not strike this
portion of Ms. Adetimehin’s affidavit.
Finally, Defendant objects to the entirety of paragraph 6 of Ms. Adetimehin’s affidavit:
I have personal knowledge of two times in which Healix blocked over-visited websites
by employees. This includes ‘Facebook’ and ‘Netflix.’ Employees were watching movies
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and were consuming too much internet data. No one was punished for this computer use,
and I am certain this occurred in both the billing and verification departments.
Adetimehin Aff. at ¶ 6. Defendant contends that this, too, lacks foundation for personal
knowledge and is conclusory. The Court will not strike the first two sentences of this paragraph,
concerning blocking Facebook and Netflix, as it is reasonable to infer that an employee whose
job included routine computer use would know that certain websites are blocked. However, Ms.
Adetimehin has not averred any basis for her knowledge of why the websites were blocked or
whether anyone was punished. Therefore, the Court will strike the third and fourth sentences of
this paragraph of the affidavit.
III.

MOTION FOR SUMMARY JUDGMENT
A. LEGAL STANDARD
Summary judgment is appropriate if no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears
the burden of identifying those portions of the record it believes demonstrate the absence of a
genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th
Cir.2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986)). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome
of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326
(5th Cir. 2009) (quotation omitted).
If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its
initial burden by showing that there is an absence of evidence to support the nonmoving party's
case. See Celotex, 477 U.S. at 325. When the moving party has met its Rule 56(c) burden, the
nonmoving party cannot survive a summary judgment motion by resting on the allegations in its
pleadings. The nonmovant must identify specific evidence in the record and articulate how that
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evidence supports that party's claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007).
“This burden will not be satisfied by some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”
Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (internal quotation
omitted). In deciding a summary judgment motion, the court draws all reasonable inferences in
the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir.
2008).
B. REASONABLE ACCOMMODATION
Ms. Adetimehin suffers from hypertension, cerebral aneurysm, anxiety and depression.
She claims that one or more of these conditions constitutes a “disability” under the ADA and that
Healix refused to grant the reasonable accommodation of her disability that she requested,
namely, four weeks of part-time status.
The Americans with Disabilities Act provides that covered employers may not
discriminate against individuals on the basis of disability. 42 U.S.C. § 12112(a). Under the ADA,
discrimination includes “not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability who is … an employee,
unless such covered entity can demonstrate that the accommodation would impose an undue
hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b). In the
Fifth Circuit, a plaintiff alleging a failure to accommodate a disability must prove that 1) the
plaintiff is a qualified individual with a disability; 2) the disability and its consequential
limitations were known to the employer; and 3) the employer failed to make reasonable
accommodations for such known limitations. Feist v. Louisiana, Dep't of Justice, Office of the
Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (internal quotations omitted).

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“As a threshold requirement in an ADA claim, the plaintiff must ... establish that he has a
disability.” Rogers v. Int'l Marine Terminals, 87 F.3d 755, 758 (5th Cir. 1996). The relevant time
for assessing the existence of a disability is the time of the adverse employment action. EEOC v.
Chevron Phillips Chemical Co., LP, 570 F.3d 606, 618 (5th Cir. 2009). The ADA defines
“disability” as: (1) “a physical or mental impairment that substantially limits one or more major
life activities”; (2) “a record of such an impairment”; or (3) “being regarded as having such an
impairment.” 42 U.S.C. § 12102(2); see also Hale v. King, 642 F.3d 492, 500 (5th Cir. 2011).
Working is a “major life activity” such that an individual is disabled for the purposes of the ADA
if her ability to work is “substantially limited.” 29 C.F.R. § 1630.2(i)(1)(i).
Here, Ms. Adetimehin contends that she suffers from a combination of physical and
mental impairments that, taken together, substantially limit the “major life activity” of working.
Defendant argues 1) that her physical conditions (hypertension and cerebral aneurysm) were not
symptomatic at the time of the adverse employment action, and 2) her mental conditions
(depression and anxiety) did not substantially limit a major life activity.
As the parties have recognized, either Ms. Adetimehin’s physical conditions or her
mental conditions could be disabilities if they substantially limited one or more major life
activities. And the Court has no doubt that these conditions were very distressing to her. But the
Court does not believe Plaintiff has put any evidence into the record that a major life activity was
substantially limited by this condition.
When Ms. Adetimehin began her final period of FMLA leave in January 2013, her health
care provider Sally Creed told Healix that Ms. Adetimehin suffered from “chronic stress
evidenced by physical shaking, constant headaches, inability to concentrate or focus on tasks,
frequent mistakes, extremely fearful (of dying), worry and anxiety.” Designation Notice (Family

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and Medical Leave Act), Doc. No. 17-2 at 151.3 Two months later, Ms. Creed observed that Ms.
Adetimehin was improving, but recommended part-time status to allow Ms. Adetimehin to
“learn[] how to handle stress more appropriately.” Certification of Health Care Provider for
Employee’s Serious Health Condition (Family and Medical Leave Act), Doc. No. 17-2 at 156.
However, at her deposition, Ms. Creed admitted that Ms. Adetimehin was looking for other jobs
— including full-time work — while she was on FMLA leave in early 2015. Creed Dep., Doc.
No. 17-3 at 57:2-4; see also Progress Notes (Jan. 23, 2013), Ex. 8 to Creed Dep., Doc. No. 18 at
4. Ms. Creed also testified that if Ms. Adetimehin had found a full-time job with another
employer, Ms. Creed would have recommended that she take that job, beginning immediately.
Creed. Dep., Doc. No. 17-3 at 57:5-11.
The inability to perform a single, particular job does not constitute a substantial
limitation to the major life activity of working. See Hileman v. City of Dallas, Texas, 115 F.3d
352, 353-54 (5th Cir. 1997). The record abundantly reflects Ms. Adetimehin’s struggles as a
Healix employee, including her belief that she was being bullied by her superiors. See, e.g.,
Adetimehin Aff. at ¶ 5; Creed Dep., Doc. No. 17-2 at 55:1-19. However, her health care provider
was quite clear that these struggles were specifically related to Ms. Adetimehin’s job at Healix,
not her overall ability to work. Even extreme stress caused by the circumstances of a particular
job — while understandably very disturbing to an employee — is not a qualifying “disability”
for the purposes of the ADA. See Mason v. Potteri, Civ. No. H-08-03198, 2010 WL 4791497, at
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Ms. Creed also noted that “She had surgery for a brain aneurysm (11/12) and it is still a threat
to her health.” Id. In fact, Ms. Adetimehin testified at her deposition that the aneurysm surgery
took place in December 2011. Adetimehin Dep., Doc. 17-2 at 128:14-24. Ms. Adetimehin was
also hospitalized in December 2012. Letter from Huyen Dong, M.D. (December 12, 2012), Doc.
No. 17-2 at 144. At that time, her doctor wrote that “[s]he will be able to return to work with no
restrictions effective Friday, December 14, 2012.” Id. There is no evidence in the record that she
suffered any ongoing physical symptoms due to the aneurysm at the time in question, though she
testified that her stress and anxiety was related, in part, to the aneurysm.
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*11 (S.D. Tex. Nov. 15, 2010). Accordingly, Ms. Adetimehin has failed to raise a question of
material fact as to the first prong of her reasonable accommodation claim.
Because Ms. Adetimehin has not raised a question of fact as to her disability, the Court
need not reach the question of whether the part-time schedule she requested would be a
reasonable accommodation required under the ADA. Likewise, the Court does not consider
Defendant’s evidence of an after-acquired evidence defense. Summary judgment is GRANTED
to Defendant on Plaintiff’s claim that it failed to provide a reasonable accommodation in
violation of the ADA.
C. HOSTILE WORK ENVIRONMENT
Plaintiff’s complaint also asserts a claim of hostile work environment on the basis of her
disability. With respect to this claim, Defendant seeks summary judgment on the basis that
Plaintiff failed to administratively exhaust the claim before the EEOC.
The ADA requires employees asserting disability discrimination to file an administrative
charge with the EEOC before filing suit in federal court. 42 U.S.C. § 12117(a). As with claims
brought under Title VII, the purpose of an EEOC charge is to place an employer on notice of the
“existence and nature of the charges against it.” EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984).
A plaintiff who files an EEOC charge will be considered to have administratively exhausted any
claims which “can reasonably be expected to grow out of the charge of discrimination.” Pacheco
v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006). Applying this standard, courts have disallowed
hostile work environment claims for which the EEOC charge makes no reference at all to
harassment or any allegations that coworkers bullied, teased, belittled or otherwise treated the
plaintiff negatively because of his or her protected characteristic. See Walton-Lentz v. Innophos,

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Inc., 476 Fed. Appx 566, 570 (5th Cir. 2012); Anderson v. Sikorsky Support Services, Inc., No.
2:13-cv-208, 2014 WL 5768573 (S.D. Tex. Nov. 5, 2014).
Here, Ms. Adetimehin’s EEOC charge does not use the word harassment. It also does not
include any of the allegations of bullying that she describes in her complaint. In contrast, it
plainly states what the Court believes to be the core of her complaint: that Healix “failed to
reasonably accommodate her disability.” Accordingly, Plaintiff’s hostile work environment
claim is DISMISSED.
For the foregoing reasons, Defendant’s Motion to Strike is GRANTED IN PART and
DENIED IN PART. Defendant’s Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on the 6th of April, 2015.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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