O'Neal v. Centene Mgmt. Co., Case No. 2:17-CV-02172-JAR-KGS

MONIQUE O'NEAL, Plaintiff, v. CENTENE MANAGEMENT COMPANY,LLC D/B/A SUNFLOWER HEALTH PLAN, Defendant.

Case No. 2:17-CV-02172-JAR-KGS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

September 27, 2018

MEMORANDUM AND ORDER

Plaintiff Monique O'Neal brings this action against her former employer, Defendant Centene Management Company ("Centene"), alleging violations of the Americans with Disabilities Act ("ADA"), and the Family Medical Leave Act ("FMLA"). This matter comes before the Court on Centene's Motion for Summary Judgment (Doc. 41) on all of Plaintiff's claims. For the reasons discussed in detail below, the Court grants Centene's motion with respect to all claims.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that areasonable jury could return a verdict for the nonmoving party."³ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁴ An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party."⁵

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁶ In attempting to meet this 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.⁷

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."⁸ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁹ 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."¹⁰

The facts "must be identified by reference to an affidavit, a deposition transcript, or aspecific exhibit incorporated therein."¹¹ Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹² The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹³

Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹⁴ In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."¹⁵

II. Uncontroverted Facts

The following material facts are uncontroverted, stipulated to for the purposes of summary judgment, or viewed in the light most favorable to Plaintiff.

Plaintiff's Employment with Centene

Plaintiff began her employment with Centene in June 2013 as a referral specialist. Centene provides healthcare related services to patients and medical providers. Plaintiff's duties as a referral specialist included communicating by telephone with medical providers (e.g., doctors/nurses) who are requesting authorization to provide specific and potentially time sensitive medical services to a patient. The medical provider gives the referral specialists information such as the patients name, diagnosis, and anticipated medical procedure for whichthe authorization is sought; the referral specialists then build an authorization by inputting information into a data management system called "TruCare," and then send the authorization to a medical professional at Centene for approval. Plaintiff's hours as a referral specialist were from 8:00 a.m. to 5:00 p.m. and included a one-hour lunch break and two fifteen-minute breaks each day. While not on break, Centene expected Plaintiff to work as efficiently as possible.

Bobbie Harris, the supervisor of referral specialists, was Plaintiff's immediate supervisor. Terrie Beverlin, the Manager of Utilization Management, supervised Bobbie Harris and became Plaintiff's manager in September 2015. When Beverlin became Plaintiff's manager, Harris and another one of Plaintiff's prior managers informed her about Plaintiff's past dishonesty, past unprofessionalism, and history of excessive cell phone use.

Centene's Rules, Policies, and Procedures

Centene's Corporate Attendance & Punctuality Policy provides that "Employees must notify their supervisor or the local human resources person within one (1) hour of their scheduled start time if they are unable to report to work or will be late."¹⁶ For notifying Centene of FMLA leave, face-to-face is the best method. According to Scott Mak, the Human Resources Manager during Plaintiff's employment with Centene, an employee should first notify their direct manager, and should let Human Resources know they are taking FMLA leave if there is no manager on the floor.

Centene issues occurrence points on employees' attendance records when they fail to abide by attendance policies. Depending on the severity of her infraction, Plaintiff received occurrences ranging from one-half to one-point when she did not follow the attendance policy for proper notification, did not report her FML leave to Liberty Mutual and therefore did notqualify for FML, or when she called in sick for non-FMLA related reasons.¹⁷ An occurrence itself is not a disciplinary action, but occurrences can ultimately lead to disciplinary action.¹⁸

The Daily Team Chat is an instant message system for referral specialists to communicate with others whether they were available to take calls. Referral specialists are under a directive to record when they leave and return to their desks throughout the day in the chat. Other referral specialists failed to log their activity in the Daily Team Chat and took extended breaks away from their desks. No employee other than Plaintiff has been terminated or disciplined for failing to log in and out of the Daily Team Chat.

Plaintiff's FMLA Use

Liberty Mutual, a third-party administrator, handled Centene's FMLA application, approval, denial, and usage process. Centene managers and supervisors received notice when employees took FMLA leave.

In July 2014, Plaintiff began taking intermittent FMLA leave for "generalized anxiety disorder," "gastroesophageal reflux disease" ("GERD"), and her son's asthma. Although Plaintiff does not recall communicating to any manager or supervisor that she had anxiety disorder, Plaintiff informed Beverlin that she had GERD. Beverlin was unaware of the symptoms of GERD. Whenever Plaintiff experienced generalized anxiety or GERD at work she would leave work for the entire day.

On June 15, 2015, Plaintiff emailed Rebecca Bryant regarding her "FMLA days being counted against [her] attendance."¹⁹ Plaintiff took FMLA leave on June 16 and June 17, 2015,and called in at 7:05 am and 7:13 am respectively. Plaintiff received a one-point occurrence for each of these dates. Mak had previously indicated in a June 8, 2015 email that Plaintiff would be given occurrences "if she is calling in after 7am even if for FML . . . Same for if she leaves early."²⁰ Plaintiff sent emails on June 15, 2015 and June 23, 2015, to HR representatives in which she questioned why she had received occurrences while on FMLA and her belief that she was being discriminated against and harassed because of FMLA use.

On January 4, 2016, Harris informed Beverlin that Plaintiff had called in that morning informing her that she was going to take FMLA leave for her son, but that she would be back into work later in the day. Plaintiff never returned to work, and Beverlin informed HR of this event.

On June 23, 2016, Plaintiff emailed Beverlin stating she had a doctor's appointment on July 6 for her "FML paper work, at the time I will see if he will provide me with a Dr. Excuse [sic] for my excessive bathroom usage . . . I just want to cover myself" and stated she had been experiencing excessive bathroom usage related to her medical issues.²¹ Beverlin did not believe Plaintiff was disclosing a medical issue. Also on June 23, Harris discovered that Plaintiff did not report her FMLA usage on a day she missed work for FMLA to Liberty Mutual as required. Harris reported the conduct to Beverlin and believed Plaintiff was dishonest by representing to Centene that she was on FMLA leave when she had not informed Liberty Mutual.

Department Expectations Meeting

On March 22, 2016, Beverlin and the human resources department held a meeting with the referral specialist group, which included Plaintiff. The referral specialists were told that earbuds and cell phones were not allowed. They were instructed at this meeting and subsequent meetings to (1) take one-hour lunches and 15-minute breaks on time and to return on time, (2) accurately document notes of conversations with providers in Centene's medical data management system, TruCare, and (3) enter time in the Team Chat when leaving and returning to their desk.

On March 28, Harris learned that Plaintiff was not documenting any notes of her conversations with medical providers. Harris emailed Plaintiff, stating there were "no notes entered by you" on the authorizations Plaintiff built.²² After Plaintiff responded that she had entered some notes in TruCare, Harris randomly selected three authorizations that Plaintiff built and none contained notes or documentation. Harris believed Pla...