Salem v. Houston Methodist Hosp.

FATIMA SALEM, Plaintiff, v. HOUSTON METHODIST HOSPITAL, Defendant.

CIVIL ACTION NO. 4:14-1802

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

October 30, 2015

MEMORANDUM AND ORDER

This case is before the Court on Defendant Houston Methodist Hospital's ("Defendant" or "Methodist") Motion for Summary Judgment [Doc. # 36] (the "Motion").¹ Plaintiff Fatima Salem ("Plaintiff" or "Salem"), appearing pro se, filed a Response [Doc. # 38], to which Methodist replied [Doc. # 39]. The Motion is ripe for determination. After considering the parties' briefing, all matters of record, and the applicable legal authorities, the Court grants Defendant's Motion.

I. BACKGROUND

Plaintiff was employed as a nurse by Defendant from June 18, 2001, to August 24, 2012. Motion, Exh. A ("Salem Deposition") [Doc. # 36-1], at 13:23-24. She was hired as a "novice RN." In early 2002 she was promoted to a position categorized as "RN II." Id., at 17:23-25. An RN II "is a staff nurse who . . . . provides direct patient care effectively and efficiently to a patient team which may include patients with varied and complex needs." Motion, Exh. G [Doc. # 36-7]. Physically, the job duties included "a lot of standing and a lot of bending." Salem Deposition [Doc. # 36-1], at 19:6-7. Plaintiff worked as a "circulator," which included "running around to do anything [her team] needed, plus documentation." Id., at 20:2-3.

Plaintiff has suffered from various medical and psychological conditions, including autoimmune disorders, psoriasis and psoriatic arthritis, ADHD, anxiety, and depression. See Salem Affidavit [Doc. # 38], at ECF page 25. Plaintiff took a 59-day leave of absence from September 23, 2011 to November 20, 2011. She returned to work on November 21, 2011, but subsequently began another medical leave of absence on April 24, 2012. Motion, Exh. D [Doc. # 36-4], at ECF page 2. Plaintiff took these leaves because she was "struggling with illness." Salem Deposition [Doc. # 36-1], at 24:4-5.

The first period of leave was covered by the Family and Medical Leave Act ("FMLA"). Id., at 30:21-24. At the beginning of the second period of leave, on April 23, 2012, Plaintiff spoke with Debbie Newkirk, who explained to Plaintiff that she could take six months of short-term disability leave. Salem Affidavit [Doc. # 38], at ECF page 27. Later that day, Plaintiff applied for short-term disability benefits from Defendant's provider, CIGNA. Id. CIGNA initially denied her request. Plaintiff appealed their decision twice. While her appeals were pending, Plaintiff "had to struggle without money for 4 months." Id. On July 24, 2012, Plaintiff underwent a "Functional Whole Body Assessment." During the assessment she "was emotional and frequently crying and able to perform only a few components of the Assessment. The assessment was terminated without completion of the first lifting task due to [her] complaints of pain, dizziness, and nausea. She became emotional, anxious, and unable to continue." Letter from William Trammel, OT dated July 24, 2012 (the "Assessment") [Doc. # 38], at ECF page 33. It appears that Plaintiff did not proceed to the remainder of the tasks in the assessment.

Throughout 2012, Defendant maintained a policy that "[a]ll leaves of absence of any kind when combined cannot exceed six (6) months in any rolling twelve (12) month period, measured backward from the date the leave begins." Motion, Exh. C ("Policy HR 29") [Doc. # 36-3], at ECF page 2. According toPolicy HR 29, employment would "be terminated if the employee fails to return to work at the end of the approved leave period." Id. On August 15, 2012, Gloria Jimenia mentioned to Plaintiff that her employment would be subject to termination on August 24, 2012 under the terms of Policy HR 29 unless she returned to work. Salem Deposition [Doc. # 36-1], at 35:10-14. On August 16, 2012, David Hasha ("Hasha"), Senior HR Generalist/Consultant at Methodist, called Plaintiff about her impending termination. Motion, Exh. D [Doc. # 36-4], at ECF page 2. According to an August 17, 2012 email from Hasha to three other Methodist human resources personnel (Cheri Legendre ("Legendre"), Sheila Coggins ("Coggins"), and Kwameena Edwards Montgomery ("Edwards Montgomery")), Salem was upset because, "[i]n her opinion, the denial of her [short-term disability] benefits has prevented her from completing her treatment plan, thus prolonging [her] recovery. Had she been paid the benefits that she feels she is owed, she would have been able to recover in time to return to work much sooner, thus avoiding the 6 month limit. Thus, she is claiming that terminating her under policy HR 29 is improper as the organization is creating the very situation that prevents her from a timely return." Id. He passed on a request from Salem to recalculate the number of days she had been on leave and to see if CIGNA would decide Plaintiff's second appeal of the denial for short-term disability benefits by August 24, 2012. Legendre, a human resources manager at Methodist, respondedwith answers to the latter two requests, but did not discuss Plaintiff's concern that application of the 6-month limit was improper in her case.

On August 20, 2012, Plaintiff emailed Hasha to ask what she needed to do to avoid termination of her employment. Motion, Exh. E [Doc. # 36-5], at ECF page 2. Hasha replied that "to prevent HR Benefits from proceeding with a termination on Aug 24th, you would have to be cleared by your doctor to return to work prior to the termination. In order to do this, Gloria [Jimenia] would provide you with a copy of your job description and activity checklist for your Dr. to release you into." Id. Hasha also explained that Policy HR 29 did not differentiate between types of leave. Id. Plaintiff replied that evening, explaining she did not understand how she could be terminated while her second appeal was still pending with CIGNA. Regarding a new medical exam, she wrote, "I can ask the doctor to release me but i don't know if he will bc i did before but they wanted for me to get some relief from all the pain and discomfort..otherwise I be coming back the same way i left or even worse. But bc I have no choice I need the money & my job I can ask." Id. Plaintiff did not believe she would actually be able to return to work on August 24, 2012, because she was taking Vicodin, which she considered a risk to patient safety. Salem Deposition [Doc. # 36-1], at 43:13-17.

On August 21, 2012, CIGNA reversed its prior decisions and granted Plaintiff short-term disability leave through October 22, 2015. Response, Exh. 4[Doc. # 38], at ECF page 24; Salem Affidavit [Doc. # 38], at ECF page 27. Plaintiff called Hasha after she heard of CIGNA's decision. Salem Affidavit [Doc. # 38], at 3. Hasha then emailed Coggins, and Edwards Montgomery. He recounted that Plaintiff wanted him "to pass along to HR Leadership . . . that she feels that is [sic] incredibly unfair and inequitable that she be terminated when the reason for her not being able to return to work in a timely manner was due to the fact that she could not undergo treatment b/c she had no income whatsoever. In her opinion, had she received her STD benefits that were due, she would have treated, and able to return to work prior to the 6 month deadline." Response, Exh. 1 [Doc. # 38], at ECF page 19. Hasha also conveyed Plaintiff's request "for an exception to HR 29 as the situation was entirely out of her control and CIGNA's fault for not approving her benefits in a timely manner." Id. ("She doesn't understand how the organization can move to terminate her when she was denied the very benefits that she needed to seek medical treatment in order to return to work."). On August 24, 2012, Defendant terminated Plaintiff's employment.

Hasha followed up with Coggins and Edwards Montgomery on August 27, 2012. Id. at ECF page 18. Edwards Montgomery responded that she would not provide an exception, but agreed to forward Plaintiff's request to Coggins to see if she felt they could in fact provide an exception. Id. On August 30, 2012, Hashaleft Plaintiff a voicemail telling her that Defendant had turned down her request for an exception. Salem Affidavit [Doc. # 38], at ECF pages 27-28.

Following the termination of her employment, Plaintiff's condition worsened. Id. at ECF page 28; Salem Deposition [Doc. # 36-1], at 53:19-54:10. She applied for Social Security benefits in November 2012, which were approved on September 25, 2013 and have continued through the present. See Motion, Exh. F [Doc. # 36-6], at ECF page 2. The Social Security Administration classified Plaintiff as totally disabled as of September 24, 2011 and began to pay her benefits. Salem Deposition [Doc. # 63], at 63:7-10. Plaintiff also filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"), Houston District Office, on February 11, 2013. On September 17, 2013, the EEOC issued a determination. It found that Policy HR 29 violates the Americans with Disabilities Act "in that it deprives certain employees of a reasonable accommodation, dispenses with respondent's obligation to engage in an appropriate interactive process and impermissibly relieves [Methodist] of its burden to establish undue hardship as a defense to a request for a reasonable accommodation that would extend a leave beyond six months." Response, Exh. 2 [Doc. # 38], at ECF page 20. With regard to Plaintiff's termination, however, the EEOC was "unable to conclude that the information obtained establishes violationsof the ADA." Id. The EEOC unsuccessfully attempted to assist Plaintiff and Defendant resolve the matter.

Plaintiff filed a Complaint in this Court on June 27, 2014. She alleges that Defendant discriminated against her on the basis of disability in terminating her employment, failed to accommodate her disability by not providing her with additional unpaid leave from work, and retaliated against her in violation...