Green v. Medco Health Solutions of Tex., LLC

947 F.Supp.2d 712

Maetta GREEN, Plaintiff,

v.MEDCO HEALTH SOLUTIONS OF TEXAS, LLC; Medco Health Solutions, Inc.; and Aon Hewitt Absence Management, LLC, Defendants.

Civil Action No. 3:11–CV–2432–B.

United States District Court,

N.D. Texas,

Dallas Division.

May 27, 2013.

Julie E. Heath, Jennifer N. Lewis, Jennifer Gadd Snow, Farrow–Gillespie & Heath LLP, Dallas, TX, for Plaintiff.

Timothy M. Watson, Dennis A. Clifford, Rachel M. Hoffer, Seyfarth Shaw LLP, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

JANE J. BOYLE, District Judge.

Before the Court are a Motion for Partial Summary Judgment (doc. 51), filed on December 7, 2012 by Plaintiff Maetta Green, and a Motion for Summary Judgment (doc. 57), filed on December 17, 2012 by Defendants Medco Health Solutions of Texas, LLC (“Medco LLC”), Medco Health Solutions, Inc. (“Medco Inc.”), and Aon Hewitt Absence Management, LLC, f/k/a Disability Management Alternatives, LLC d/b/a Hewitt LCG (“Aon”).¹ For the reasons that follow, the Court DENIES Plaintiff's Motion and GRANTS Defendants' Motion.

I.BACKGROUND

A. Employment and Attendance Policies

In this action, Plaintiff alleges that she is a former employee of Defendant Medco LLC and was wrongfully terminated and unlawfully discriminated against by her employer and its agents. Doc. 33, Am. Compl. Plaintiff began her employment in March 2007 with Medco LLC as a Customer Service Representative. Id. ¶ 14. Plaintiff was promoted in January 2008 to Resolution Expert. Doc. 58, Br. at 2–3. In April 2008, she was again promoted to Resolution Team Leader. Id. at 3. In her positions as a customer service representative and resolution expert, Plaintiff was part of a collective bargaining unit with the United Steelworkers. Id. at 3. Participation in the bargaining unit subjected Plaintiff to Medco LLC's attendance policy. The attendance policy provides that an employee who incurs over eight unexcused “occurrences” will be terminated. Id. An absence of greater than four hours during a single shift constitutes one occurrence. Id. n. 6.

Resolution team leaders were not subject to the attendance policy until October 1, 2010 when they joined the collective bargaining unit. Id. n. 9. Prior to that date, resolution team leader absences were evaluated under a general reasonableness rule on a case-by-case basis. Id. at 3. As such, Plaintiff was not subject to the eight-absence limit of the attendance policy from April 2008 until October 2010, but became subject to the policy on October 1, 2010.

As a resolution team leader, Plaintiff was reprimanded in September 2008 for fourteen late arrivals and nine unscheduled absences since May 2008. Doc. 58, Br. at 4. Plaintiff was warned that further incidents would result in discipline, but Plaintiff continued to have poor attendance. Id. Plaintiff was counseled in May 2009 and October 2009 for taking excessive lunches on seventeen occasions and for excessive absences and tardiness. Id. Under the general reasonableness policy, Plaintiff was not terminated for these incidents.

Around February 2010, Plaintiff requested leave under the Family Medical Leave Act (“FMLA”) to address a persistent cough. Id. at 5. Plaintiff was granted intermittent FMLA leave not to exceed 88 hours each month. In May 2010, Plaintiff's intermittent FMLA leave was changed to 97 hours every three months. Id. The parties appear to agree that Plaintiff's post-October 2010 absences at issue in this case are not related to her FMLA leave.

In June 2010 and the months that followed, Plaintiff experienced headaches, dizziness, blurry vision, and vertigo, which caused her to leave work early. Doc. 62, Br. at 1.² As her symptoms worsened, she underwent multiple medical appointments and treatments with different physicians and specialists. Id. at 2–4. Plaintiff was ultimately diagnosed with idiopathic intracranial hypertension and empty sella syndrome. Doc. 33, Am. Compl. ¶ 27.

B. Disability Benefits Claim and First Appeal

Around June 22, 2010, Plaintiff filed a claim with her employer Medco LLC for short-term disability benefits under the “Medco Disability Plan,” which was administered by Defendants Medco Inc. and Aon.³ Doc. 62, Br. at 2. The plan provided benefits of up to 100% of an employee's base compensation for not more than 25 weeks if the employee could not work due to injury or illness. Doc. 33, Am. Compl. ¶ 16. In order to receive benefits, the employee had to be “actively at work and become unable to perform the material and substantial duties of her regular occupation due to illness, pregnancy, or accidentalinjury for seven consecutive calendar days.” Doc. 33, Am. Compl. ¶ 17. Short-term disability benefits were offered at no cost to the employees and were not subject to the Employee Retirement Income Security Act (“ERISA”) or its implementing regulations. Doc. 58, Br. at 5–6.

Defendant Aon denied Plaintiff's claim for short term disability benefits on July 9, 2010 for failure to provide any proof of disability. Doc. 62, Br. at 2. Plaintiff's physician failed to return Aon's calls and requests for medical documentation, and Plaintiff failed to respond to Aon's request that she contact Aon since her physician had not provided the necessary information. Doc. 58, Br. at 8. Aon notified Plaintiff that she had a right to appeal the denial. Id.

On July 24, 2010, Plaintiff appealed the denial and, in the meantime, attended additional medical appointments and received additional diagnoses. Doc. 62, Br. at 2–3. Aon reviewed Plaintiff's medical evidence and retained a physician, Dr. Tamara Bowman, to “peer review” the documentation and contact Plaintiff's physicians. Doc. 58, Br. at 11. Dr. Bowman contacted each of Plaintiff's physicians and determined that Plaintiff had no functional impairment and was able to work. Id. at 11–12. On September 29, 2010, Defendant Aon denied Plaintiff's appeal for short-term disability benefits because “there was no compelling medical evidence of a severe disabling impairment that would preclude Ms. Green from performing the material and substantial duties of her job.” Doc. 33, Am. Compl. ¶ 32.

C. Discussions with Defendants and Final Appeal

A Medco Human Resources employee, Kevin Cochener, sent Plaintiff a letter on October 6, 2010 explaining that Plaintiff had been on unauthorized leave. Id. ¶ 33. Plaintiff and Cochener spoke on October 7, though the parties dispute the contents of the call. On October 15, Plaintiff's counsel wrote to Cochener and indicated that Plaintiff was pursuing a return-to-work release from her physician and hoped that the parties could “begin discussions” to “determine a reasonable accommodation that would allow [Plaintiff] to perform the essential functions of her job when she returns to work.” Doc. 62, Br. at 4. Cochener did not respond to the letter. Id. On October 25, Plaintiff told Cochener by phone that she was released for work but was unable to return due to an adverse reaction to her medication. Doc. 58, Br. at 13. One day later, on October 26, 2010, Plaintiff attempted to return to work with a doctor's note permitting her to work nights. Doc. 62, Br. at 4. Plaintiff had not told Defendants that she would attempt to return to work that day, and Defendants did not allow her to return because they had not received sufficient notice after her six-month absence. Doc. 70, Reply at 11; doc. 59–18, App. at 609 (Roberts' deposition testimony explaining that the employer needs 48 hours advance notice of an employee's return to work in order to ensure that the work release is valid and in order to gain access to Aon's system). According to Defendants, one of Medco's human resources employees, Kathy Roberts, explained that in order to return to work, Plaintiff would need to submit documentation to cover all of her prior unexcused absences. Doc. 58, Br. at 13. Roberts also allegedly informed Plaintiff that, in order to change her schedule to a night shift, she would need to support such a request for accommodations with additional information. Id. On November 3, 2010, Plaintiff left a voicemail for Cochener and stated that her doctor had rescinded her return-to-work release due to adverse reactions to medicine, so Plaintiff was unable to return. Id.

On November 12, 2010, Plaintiff filed her second and final appeal of the denial of her claim for short-term disability benefits. She supplemented her appeal with additional evidence. Doc. 33, Am. Compl. ¶ 35. Aon hired Dr. Vaughn Cohan, who spoke with two of Plaintiff's physicians, to review Plaintiff's claim. Doc. 58, Br. at 15–16. According to Defendants, the physicians indicated that Plaintiff should be able to work, and Dr. Cohan concluded the same. Id. at 16. On November 26, 2010, Defendant Aon denied Plaintiff's appeal, explaining that the medical evidence submitted in support of the claim did not objectively demonstrate that she was unable to work and thus entitled to short-term disability benefits. Doc. 33, Am. Compl. ¶ 37. At that time, Aon's denial of the appeal was sent to Plaintiff but was not sent to Medco LLC. Doc. 58, Br. at 17–18.

D. Request for Accommodations and Termination

Plaintiff's counsel sent Defendants a letter on December 1, 2010 noting that Plaintiff's physician had given her a new release to return to work and that Plaintiff sought one of the following accommodations in order to return to work: (1) a night-shift schedule, (2) a day schedule that would allow her to leave work to attend appointments and make up work time later, or (3) a split-shift schedule to accommodate her appointments. Id. ¶ 39. Plaintiff's counsel called Cochener on December 6, but Cochener did not return counsel's call or respond to the letter. Id. ¶¶ 40–41; doc. 62, Br. at 4.

On December 7, 2010, Aon informed Medco LLC that Plaintiff had lost her final appeal for short-term disability benefits. Doc. 58, Br. at 18. On December 8, 2010, Plaintiff's counsel faxed Cochener another letter requesting...