Allstot v. Confluence Health, Non-Profit Corp., 2:16-CV-00373-SMJ

KATHY ALLSTOT, Plaintiff, v. CONFLUENCE HEALTH, a Washington non-profit corporation,and CENTRAL WASHINGTON HEALTH SERVICES ASSOCIATION,a Washington Public Benefit Corporation doing business as Central Washington Hospital, Defendants.

No. 2:16-CV-00373-SMJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

August 17, 2018

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Before the Court is the Motion for Summary Judgment, ECF No. 40, brought by Defendants Confluence Health (Confluence) and Central Washington Health Services Association (Central). Plaintiff Kathy Allstot asserts three causes of action—violation of the Family and Medical Leave Act of 1993 (FMLA), disability discrimination under the Washington Law Against Discrimination (WLAD), and wrongful discharge in violation of public policy. ECF No. 1 at 3-5. Allstot's first cause of action involves two claims, namely FMLA interference and FMLA retaliation. Allstot's second cause of action involves three claims, namely WLAD disparate treatment, WLAD retaliation, and WLAD failure to accommodate.

Defendants ask the Court to grant summary judgment in their favor on all of Allstot's claims, arguing she failed to meet her burden of production on any of them. The Court held a hearing on the motion on August 2, 2018. Having reviewed the pleadings and the file in this matter, the Court is fully informed and, for the following reasons, grants the motion.

BACKGROUND

Central is a hospital in Wenatchee, Washington.¹ Allstot began working for Central as a nurse assistant in 2012. ECF No. 83 ¶¶ 1, 92. Allstot began taking FMLA leave for migraines from the start of her employment. Id. ¶ 54. To take FMLA leave, Confluence required employees to specifically request it. Id. ¶ 93. But Central advised employees to stay home if they were sick. Id. ¶ 99. And Confluence did not normally count medical leave for the flu against employees. Id. ¶ 103.

Allstot applied for a transfer to Central's contact center in 2014. Id. ¶ 2. As part of the transfer process, Allstot interviewed with the contact center manager, Kimberly Gullett. Id. Ultimately, Gullett was responsible for hiring Allstot into the contact center. Id. ¶ 3. In the interview, Allstot mentioned she experienced migrainesand had previously taken FMLA leave. Id. ¶ 2. Gullett nonetheless approved Allstot's transfer to the contact center. Id. At all times relevant to this case, Gullett was unaware whether Allstot's migraines affected her ability to work. Id. ¶ 96. Allstot denies that her prescription medications affected her job performance. Id. ¶ 73.

Allstot started her job as a Contact Center Specialist I on September 30, 2014. Id. ¶ 5. Allstot's job required her to work a full-time dayshift on Monday through Friday from 9:00 a.m. to 6:00 p.m. Id. ¶¶ 6, 13. Allstot's duties involved taking telephone calls from patients, including calls transferred from Confluence operators; scheduling, canceling, and rescheduling patients' appointments with various Confluence healthcare providers; and arranging to refill patients' prescription medications. Id. ¶¶ 7-8, 105.

Allstot performed her job while seated at a cubicle, surrounded by a room of other cubicles and other contact center specialists. Id. ¶ 9. Incoming calls were placed in a queue and the first available contact center specialist would take the next call in the queue. Id. ¶ 10. A contact center specialist could not discern whether a call in the queue related to an emergency or nonemergency situation. Id. ¶ 67. Allstot's job placed her in continuous contact with patients. Id. ¶ 11. Allstot's job required her to comply with clinic and department standards pertaining to the use ofpaid time off and unpaid absences for medical reasons. Id. ¶ 12. Allstot could not perform her job unless she was physically present at the contact center. Id. ¶ 14.

Contact center specialists routinely received "huddles" describing new rules or changed rules for handling incoming calls. Id. ¶ 17. Things changed frequently. See id. An employee who missed work would make mistakes unless she took the time to go back and read all huddles before taking calls. Id. ¶ 18.

On April 3, 2015, Central coached Allstot on her job performance, reminding her to "'[m]ake sure you are catching up on Huddles when you are not here,' to '[s]low down and take some time to make sure you are looking at the Scheduling grid and the restrictions per provider. Grids are changing all the time and with you being out of the office, things are getting missed.'" Id. ¶ 19 (alterations in original).

Allstot had her six-month performance review on May 31, 2015. Id. ¶ 20. In the review, Gullett made the following observations about Allstot:

"I am finding the following errors are occurring repeatedly at times, due to her [Allstot] being out of the office: Sending Telephone Encounters and Staff Messages to the incorrect "Pools". Booking patients based on the instruction or grid guidelines of when she was here in the office last. During her absences, we are constantly updating and changing things. I have spoken with Kathy and she is going to work on reading all huddles notes and emails from myself and Marcus Miller when she has been out, before she takes calls and books patients for future appointments. I think that this will alleviate these issues."

Id. ¶ 21 (alteration in original).

On June 2, 2015, Central again coached Allstot on her job performance, this time for "'rolling calls, taking below average number of calls, still sending Telephone Encounters and Staff Messages to the incorrect pools, taking long breaks/lunches,' and having her phone 'in work [mode] for an extended amount of time before going to breaks/lunches and leaving for the day.'" Id. ¶ 22 (alteration in original). Central cautioned Allstot she "'must double check her work with the routing of all Telephone Encounter and Staff Messages' and . . . '[w]hen she is scheduled on the phones, she needs to be in 'Ready' state to take calls.'" Id. ¶ 23 (alteration in original). Central told Allstot her "failure to meet and maintain acceptable standards of performance 'may result in a formal discipline process.'" Id.

Allstot's errors persisted. Id. ¶¶ 24-28. For example, Allstot once scheduled a patient's appointment for November 9, 2016 rather than 2015, which caused him to arrive at the clinic when no one was available to see him. Id. ¶ 24. Allstot admits there was nothing inappropriate about Gullett pointing out her errors regarding patient scheduling. Id. ¶ 29.

Central repeatedly coached Allstot about her errors. Id. ¶ 25. Gullett arranged extra training for Allstot. Id. ¶ 26. Gullett had a Contact Center Specialist II sit with Allstot for an entire day, observe how she was doing, and provide feedback on how she can improve. Id. Gullett also gave Allstot periodic in-person coaching from other contact center specialists. Id. ¶ 27. While Gullett also counseled other contact centerspecialists who were making mistakes, Allstot does not know how many ended up receiving corrective action. Id. ¶ 31.

Allstot continued making mistakes even after going back and reading huddles. Id. ¶ 28. Eventually, Confluence's practice managers asked Gullett to do more to address Allstot's errors. Id. ¶ 30.

On October 29, 2015, Gullett issued Allstot a written counseling statement. Id. ¶ 32. In the statement, Gullett says, "[Allstot] continues to struggle with job performance. She has a high error rate and continues to take lower than the average number of total calls, taking longer breaks/lunches and is still continuing to have an extremely high amount of time in 'Work State', after counseling and coaching." Id. ¶ 33. Gullett established expectations that Allstot's "'[e]rror rate needs to decrease down to no more than 5 errors in the next 30 days and moving forward' and that she needed to take only '15 minutes each for breaks and 1 hour for lunches.'" Id. ¶ 34 (alteration in original). Additionally, Gullett reminded Allstot her "[f]ailure to meet and maintain acceptable standards of performance . . . will result in further discipline up to and including termination of employment." Id. ¶ 35 (alteration and omission in original).

On November 20, 2015, Central counseled Allstot about inappropriately referring to a patient as "a real witch." Id. ¶ 36. And on December 2, 2015, Allstot cleaned out her desk because she thought Central was going to terminate heremployment. Id. ¶ 37. Allstot's superiors never told her it was acceptable for her to keep making mistakes after receiving training, coaching, and counseling. Id. ¶ 38.

On January 11, 2016, Gullett told Allstot that she had "been taking long lunches lately," that Gullett was "concerned with the amount of them," and that Allstot needed "to be consistent at 1 hour lunches please." Id. ¶ 72. Gullett suggested Allstot "[m]aybe set an alarm to help?" Id. (alteration in original).

On January 19, 2016, Gullett emailed Allstot, notifying her that Central discovered nine errors she made in the six weeks between November 27, 2015 and January 14, 2016. Id. ¶ 39. Three days later, Central presented Allstot with a last chance agreement. Id. ¶ 40. Confluence fires employees that do not sign such agreements. Id. ¶ 100. The agreement warned Allstot "[b]y signing this Last Chance Agreement you understand that ANY violation of CH's work rules or policies . . . will result in your immediate termination from employment." Id. ¶ 41 (alteration and omission in original). The agreement also warned Allstot "[t]here will be no further corrective action taken in the event of a performance, attitude or behavior problem, unapproved tardy, absence or policy violation." Id. ¶ 42.

The last chance agreement referenced Allstot's pattern of tardiness after returning from rest breaks and lunch breaks. Id. ¶ 44 ("From 12/3/15-1/12/16, Kathy has 13 occurrences of tardiness from rest breaks and from 12/9/15-1/11/16 she has an additional 10 occurrence of tardiness from lunch...