Opinion
Case No. 98-4184-RDR.
November 13, 2000.
MEMORANDUM AND ORDER
This is an employment discrimination action. Plaintiff contends that the defendant discriminated against her because she was disabled when it terminated her from employment as a nurse consultant on April 3, 1998 in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. She also contends that the defendant breached an implied contract with her when it terminated her. The defendant seeks summary judgment, arguing that the law and the uncontroverted facts do not support her claims.
I.
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 judgment as a matter of law." Fed.R.Civ.P. 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., 144 F.3d 664, 670 (10th Cir. 1998). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id.
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 that does not bear the ultimate burden of persuasion at trial need not negate 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.
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 v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
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 determination of every action." Celotex v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).
II.
The court shall initially set forth the facts that are regarded by the parties as uncontroverted. The court shall discuss other facts and allegations as we examine the plaintiff's claims and the defendant's contentions concerning those claims.
Plaintiff began her employment with the defendant on or about August 1, 1996 as a part-time employee. At the time she was hired by Blue Cross, plaintiff had scleroderma and esophageal dysmotility as a related condition. In early November 1996, plaintiff began working as a full-time nurse consultant. This position has the "responsibility of performing the compliance review activities which are needed to meet or exceed the performance standards required by SRS [Kansas Social and Rehabilitative Services]." Through defendant's contract with the State of Kansas, plaintiff's unit was to perform 100 consumer reviews and approximately 50 provider reviews per quarter. These reviews were divided as equally as possible among the ten individuals working in plaintiff's unit. Plaintiff's immediate supervisor was Becky Stauffer. Mary Kennedy was her "second-line" supervisor.
In April 1997, plaintiff had a discussion with Ms. Stauffer about the progress of her cases. At that time, she had the lowest percentage of cases closed in comparison with other members of her unit. In May 1997, she had the highest number of cases over six months old; plaintiff had seven such cases while the other four analysts each had one. Plaintiff received her first proficiency review on June 1, 1997. The review indicated that plaintiff "meets job requirements." The review also contained the following under "Areas to Improve": "timeliness of completing consumer and provider reviews" and "improve knowledge of the consumer review process." Under the area titled "Actions to be taken toward achieving goals" was the following: "Develop time management skills. Consider class on time management." Finally, under "GOALS FOR THE NEXT SIX MONTHS" was the following: "Increase percentage of provider reviews that are closed in 6 months and consumer reviews that are closed in one month." Plaintiff received a three percent proficiency raise, which was the lowest received, but three others also received this amount.
Discussions concerning plaintiff's completion of reviews and time management continued over the next few months. On August 19, 1997, plaintiff had her physician fill out a form stating that she had scleroderma. After reviewing the job description of plaintiff's position, plaintiff's physician stated that she was able to perform the functions of her position.
On September 10, 1997, Ms. Stauffer requested that plaintiff meet with Ms. Kennedy and her on September 16, 1997 to discuss plaintiff's performance. Prior to the meeting, Ms. Stauffer compared plaintiff's completion rate with other members of the team and determined that plaintiff had the worst performance. On September 16, 1997, the meeting took place and plaintiff acknowledged that she was aware that she had cases that had been open longer than the requirements. Plaintiff indicated that she had spent significant time helping a co-worker to the detriment of her own work. Ms. Stauffer and Ms. Kennedy told plaintiff she should be concentrating on her own work, not that of another employee. In plaintiff's Performance Improvement Plan, which referred to the September 16th meeting, it was noted that plaintiff "has 6 provider cases which were opened more than 6 months ago and has 3 more that will be open more than 6 months by the end of the month."
On September 17, 1997, plaintiff requested "intermittent" leave as the result of her scleroderma from October 1, 1997 through October 1, 1998 for "physician appointments, diagnostic testing, etc." Ms. Kennedy signed the form on September 24, 1997.
On October 6, 1997, plaintiff was notified that she was eligible for leave under the Family and Medical Leave Act (FMLA), and that such leave would be counted against her annual FMLA leave entitlement. Plaintiff first spoke with Ms. Stauffer about her application for FMLA leave "around the first of October" 1997. When plaintiff first applied for FMLA leave, she was unaware that she was going to be hospitalized. Plaintiff took continuous leave from November 20, 1997 to January 19, 1998. During this period, plaintiff was working on her cases at home.
In December 1997, Ms. Stauffer sought to have the case files that plaintiff had taken home returned to work so that activity on them could resume. Some problems occurred in getting this accomplished, but the files were ultimately returned in early January 1998.
Plaintiff was released to return to work on January 19, 1998. On that date, plaintiff was told by Ms. Kennedy and Ms. Stauffer that the case files needed to remain at work. Plaintiff had asked to be allowed to do some of her work at home. Plaintiff's request was denied because plaintiff did not meet the guidelines established under the "Working @ Home Policy."
As of January 31, 1998, plaintiff had six provider cases that were beyond the six-month completion deadline. Of these six cases, all were overdue as of November 1, 1997, three weeks before plaintiff took her two months of FMLA leave.
On or about February 25, 1998, plaintiff made a formal ADA request for an accommodation to work at home. At the time of this request for accommodation, plaintiff was on intravenous feeding twelve hours a day, from approximately 6:00 p.m. to 6:00 a.m. Plaintiff's request was denied on March 2, 1998. The determination recommended that "[a]t the expiration of FMLA, [plaintiff] be given an additional two weeks to seek another position not as an ADA required accommodation, but as an alternative to immediate termination due to her inability to perform the current position." Plaintiff did not apply for any other position.
Plaintiff's last day of work was April 3, 1998. Plaintiff had not completed all of her work on the cases assigned to her at this time and, therefore, these cases were assigned to other staff. In June 1998, after plaintiff's employment with Blue Cross was terminated, plaintiff filed for long-term disability benefits. In the prognosis section of plaintiff's disability application, plaintiff's physician stated that he did not think plaintiff would be able to work. Plaintiff has continuously remained on disability benefits because her doctor has not released her to work.
III. A.
The defendant contends that it is entitled to summary judgment on plaintiff's ADA claim. They argue that they refused to grant plaintiff's request to work from home and ultimately terminated her employment for legitimate, nondiscriminatory reasons. The defendant suggests that plaintiff had serious performance issues and had not performed well in the past when she was allowed to work at home.
The ADA prohibits employers from discriminating against individuals on the basis of disability. See 42 U.S.C. § 12112(a). To prevail on an ADA discrimination claim, a plaintiff must establish that: (1) he or she is a disabled person as defined by the ADA; (2) he or she is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) the employer discriminated against him or her because of the disability. See Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1109 (10th Cir. 1999). The ADA defines disability as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Here, plaintiff alleges that she comes within the subsections (A) and (C).
To establish a prima facie case under the McDonnell Douglas burden-shifting scheme as applicable to the ADA, plaintiff must show that (1) she is a disabled person within the meaning of the Act; (2) she is qualified, meaning that either with or without reasonable accommodation, she can perform the essential functions of her job; and (3) the defendant terminated her under circumstances giving rise to the inference that she was terminated because of her disability. See Hardy v. S.F. Phosphates Ltd., 185 F.3d 1076, 1079 n. 2 (10th Cir. 1999). If an ADA plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Id. at 1079. If it does, the burden returns to the plaintiff to present evidence that the proffered reason is not worthy of belief. Id. at 1079-80.
The court shall proceed to the issue of pretext. The defendant has argued that the plaintiff was not disabled as defined by the ADA, but the court is convinced that the uncontroverted facts show that this case can and should be decided beyond the prima facie stage.
As recognized by the plaintiff, the defendant has met the burden of articulating a legitimate, nondiscriminatory reason for the termination, i.e., poor work performance. Plaintiff has suggested that the following evidence shows pretext: (1) the proficiency review of June 1, 1997 showed her "meeting job requirements" with more cases over six months old than when she was terminated; (2) concerns about her poor job performance began after she complained about Ms. Stauffer's questioning into her health; and (3) other employees, who were similarly situated to her, were allowed to work at home.
After a careful review of this evidence, the court does not find that the plaintiff has demonstrated sufficient evidence of pretext. We begin by an examination of the evidence concerning the proficiency review. The evidence in the record is uncontroverted that there was concern about plaintiff's job performance beginning at least in April 1997. Plaintiff acknowledged her problems and offered excuses for her lack of timeliness. Plaintiff paints an inaccurate picture of the proficiency review. She notes the portion that indicated she was meeting job requirements. She, however, fails to note the balance of the review. The remainder of the review provides a critique of her job performance and a strategy for improvement. The only reasonable assessment that can be drawn from that review is plaintiff's supervisors were concerned with plaintiff's job performance. This concern was reflected in the low salary increase given to plaintiff. The suggestion by plaintiff in response to the motion for summary judgment that this review somehow provides support for the position that she was meeting job requirements in February 1998 when the decision was made to terminate her is without support. The various suggestions made to plaintiff in the proficiency review concerning job performance were obviously designed to secure some improvement. The evidence is uncontroverted that this did not occur. The evidence clearly indicates that plaintiff was not meeting legitimate performance standards established by the defendant. The court finds no evidence of pretext in the documents reviewing plaintiff's job performance.
The court shall next turn to plaintiff's suggestion that the concerns about her job performance did not begin until after she complained about Ms. Stauffer's questioning into her health. Again, we find no support for this position in the record. The evidence offered by plaintiff suggests that Ms. Stauffer was counseled about plaintiff's complaint around August 13, 1997. The record is uncontroverted that Ms. Stauffer had legitimate concerns about plaintiff's performance prior to that time. As early as April 1997, Ms. Stauffer expressed concern to plaintiff about her job performance. It was at that time that plaintiff had the lowest percentage of cases closed in comparison with other members of her unit. In May 1997, plaintiff had the highest number of cases over six months old. Plaintiff had seven such cases while the other four analysts each had one. As explained previously, the proficiency review issued on June 1, 1997 also expressed concerns about plaintiff's job performance. Accordingly, the suggestion that concerns about her job performance began only after she complained after Ms. Stauffer's questions concerning her health is without support.
Finally, we consider plaintiff's last argument concerning pretext. Plaintiff contends that the defendant's discriminatory intent concerning her disability is shown by the evidence regarding the application of the "Working @ Home" policy. Plaintiff has suggested that she was denied the opportunity to use this program while other employees were allowed to do so even though they did not meet the program's requirements. Plaintiff initially suggested that two other employees, Marsha Smith and Carol Burns, were allowed to work at home part-time even though they did not meet the requirements of the program.
The court carefully explored this contention during oral argument and allowed plaintiff to supplement the record after the hearing with some additional evidence. The court then allowed the defendant to respond to this additional evidence.
Having carefully reviewed the record on this matter, the court finds no evidence to support the plaintiff's position. The uncontroverted evidence shows that, under the "Working @ Home" policy, an employee was allowed to work at home if he or she maintained an 80% performance standard for open cases. This required the employee to complete provider cases within 6 months and consumer cases within one month after assignment. Referred cases were not included in this calculation.
The evidence submitted by plaintiff fails to show that the defendant allowed any employees who did not meet the aforementioned standards to work at home. The court notes that plaintiff failed to produce any evidence to support her contention that Carol Burns was allowed to work at home even though she did not meet the necessary requirements. Plaintiff's supplemental memorandum fails to even mention Carol Burns. Moreover, the court finds that the evidence submitted does not support plaintiff's contention concerning Marsha Smith. Plaintiff's calculations concerning Ms. Smith failed to include at least one case that should have been counted and included other cases that should not have been included. The records, as properly interpreted, show that Ms. Smith did meet the criteria for the defendant's "Working @ Home" policy. Accordingly, we also find no support in the evidence for this assertion of pretext.
In sum, plaintiff has failed to produce sufficient evidence of pretext. As a result, the court finds that the defendant is entitled to summary judgment on plaintiff's ADA claim.
B.
The court wants to make an additional point concerning plaintiff's "regarded as" claim. In addition to the aforementioned analysis, which applies as well to the "regarded as" claim, the court also finds that the plaintiff has not made a prima facie claim of "regarded as" discrimination. The defendant argued that there was absolutely no evidence that defendant regarded plaintiff as disabled or that defendant perceived such a disability to substantially limit a major life activity. Based upon the response made by the plaintiff, we must agree.
In responding to the defendant's argument, plaintiff pointed solely to a form prepared by the defendant in response to her accommodation request. She noted that on that form the ADA committee answered "yes" in response to the following question: "Does this employee have a disability for purposes of the ADA?" She failed to mention, however, that the following information is contained after the "yes":
According to her statement. Her supervisors, however, do have performance concerns, i.e., the employee is not and has not for some time performed the essential functions of her position. If the supervisors are correct, the employee does not have a qualified disability for ADA purposes, despite the seriousness of her health condition.
Plaintiff also pointed out that the form has a "yes" answer to this question: "Does the employee's disability significantly impair one or more of his/her major life activities." Again, however, plaintiff fails to note the comment that follows: "The employee has identified walking and sitting as impaired life activities."
Plaintiff failed to provide any other evidence or argument on this issue. The court finds that plaintiff's response is insufficient to avoid summary judgment. The suggestion that the "yes" answers, without the following information, provide enough to avoid summary judgment is specious. The entirety of the answers demonstrate no support for the plaintiff's position. There may be other evidence in the record to support plaintiff's "regarded as" claim, but plaintiff has failed to note any of it in responding to defendant's motion for summary judgment. To establish genuine issues of fact, plaintiff must refer with particularity to those portions of the record upon which she relies. Gross v. Burggraf Construction Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (sufficient evidence pertinent to material issue must be identified by reference to affidavit, deposition transcript or specific exhibit incorporated therein; in absence of such reference, court will not search record to determine whether there exists dormant evidence which might require submission of case to jury). Accordingly, the court finds that the defendant is entitled to summary judgment on plaintiff's "regarded as" claim for this reason as well.
IV.
Finally, the court turns to plaintiff's breach of implied contract claim. The nature of this claim is not entirely clear. In the pretrial order, this claim is stated as follows: "Defendant's actions violated its policy, and implied contract with plaintiff, that she would be allowed time to recover from health problems and would not be terminated because of medical difficulties." In plaintiff's response to defendant's motion for summary judgment, she stated her claim as follows: "Plaintiff's claim is that Defendant breached its contractual obligation by miscalculating the 30-days of sick leave. According to Ms. Hill and Ms. Stauffer, Defendant's 30-day sick leave policy is only triggered when an employee is off work for 30 consecutive full days. However, beginning January 22, 1998, Plaintiff was being charged for one full sick day each day, even though she was in the office five hours each day. Thus, if the jury believes Ms. Hill's and Ms. Stauffer's testimony regarding the sick leave policy, the jury could reasonably find that Defendant breached its contractual obligation to Plaintiff — a contractual obligation which Defendant in fact recognized." At oral argument on the defendant's motion for summary judgment, plaintiff's counsel admitted that he was now pursuing a different claim than the one stated in the pretrial order. The defendant's argument in its motion for summary judgment is, of course, directed at the claim asserted in the pretrial order.
The confusion that exists concerning this claim leads the court to the conclusion that we should not consider it under the circumstances here. It is undisputed that no separate jurisdictional basis exists for plaintiff's state law claim. Because the court finds the defendant entitled to summary judgment with respect to plaintiff's claims arising under federal law, the court declines to exercise its discretion to address the merits of defendant's arguments regarding the propriety of summary judgment of plaintiff's remaining state law claim. See 28 U.S.C. § 1367 (c)(3); Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) ("When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims."). Accordingly, plaintiff's breach of implied contract claim is hereby dismissed without prejudice.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Doc. # 34) be hereby granted in part. The court shall grant summary judgment to defendant on plaintiff's claims asserted under the ADA. Plaintiff's remaining breach of implied contract state law claim is hereby dismissed without prejudice.
IT IS SO ORDERED.