Unruh v. Humana Insurance Company et al

MEMORANDUM

N.D. Ill.Apr 12, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION RENAE UNRUH, Plaintiff, v. HUMANA INSURANCE COMPANY, a Subsidiary of Humana, Inc.; NANCY KAVALLE; DONNA SCHOENHEIDER, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 17-cv-01782 Judge Ruben Castillo Magistrate Judge Jeffrey Cole MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiff’s Amended Complaint asserts ten individual and separate causes of action: Count I (FLSA); Count II (Illinois Minimum Wage Law); Count III (FMLA Interference); Count IV (FMLA Retaliation); Count V (IHRA Disability Discrimination – Failure to Accommodate); Count VI (IHRA Disability Discrimination – Disparate Treatment); Count VII (IHRA Age Discrimination); Count IX (IHRA Retaliation); Count X (Intentional Infliction of Emotional Distress – against HIC); and Count XI (Tortious Interference with Prospective Economic Advantage – against Kavalle and Schoenheider). Plaintiff proverbially threw these claims at the wall hoping something would stick. Nothing does. All of Plaintiff’s claims fail as a matter of law, and summary judgment must be entered in Defendants’ favor. FACTUAL OVERVIEW1 Plaintiff is a licensed registered nurse (“RN”) who holds numerous advanced education degrees. SOF ¶13. HIC employed Plaintiff as a Clinical RN Advisor for sub-acute matters and her main role was to collaborate with other healthcare providers in using her independent judgment 1 Defendants cite to and incorporate by reference the facts contained in its Local Rule 56.1 Statement of Material Facts To Which There Is No Genuine Dispute that they filed contemporaneously with this memorandum. “SOF ¶ ____” are to the paragraph numbers contained in the Local Rule 56.1 Statement. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 1 of 29 PageID #:752 2 and learned knowledge to review actual and proposed medical care and services for Humana Plan members against established CMS Coverage Guidelines review criteria. SOF ¶¶14-16. Plaintiff reported to Nancy Kavalle and Ms. Kavalle reported to Donna Schoenheider. SOF ¶14. She began working for HIC on March 2, 2014. Id. Plaintiff received numerous counseling sessions throughout her tenure. SOF ¶¶23-32. Her annual performance review, which she received on or about January 27, 2015, rated her as “Inconsistent” and noted numerous deficiencies in her performance. SOF ¶¶33-35. Plaintiff’s performance did not improve and she was placed on an improvement plan – known as a CCIP – on April 22, 2015. SOF ¶¶36-46. Thereafter, Plaintiff contacted Humana’s Ethics Line because she was upset after learning the CCIP had inadvertently been forwarded to the team fax box. SOF ¶47. This concern was investigated and it was discovered that Plaintiff caused the CCIP to be forwarded. Id. On May 1, 2015, Plaintiff also filed a “Resolving Issues Report Request Form” in which she disputed the CCIP and requested that it be removed from her file. SOF ¶48. This concern was also investigated. SOF ¶49. In neither concern did Plaintiff allege she was being subjected to discrimination or retaliation. SOF ¶¶47-48. On or about April 23, 2015, Plaintiff sought FMLA leave and on May 16, 2015, she began a continuous leave under the FMLA. SOF ¶¶54-56. When her leave exhausted, Plaintiff was accommodated with additional leave. SOF ¶57. However, she never returned to work. Id. She failed to engage in the interactive process and stated she did not intend to return to work in the future. SOF ¶¶58-60. Her statement was taken as a request for indefinite leave and her employment was terminated on or about December 6, 2016. SOF ¶59. SUMMARY JUDGMENT STANDARD Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 2 of 29 PageID #:753 3 to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). To defeat summary judgment, the non-moving party must identify competent evidence that would be admissible at trial. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). “However, neither the mere existence of some alleged factual dispute between the parties, nor the existence of some metaphysical doubt as to the material facts, is sufficient to defeat a motion for summary judgment.” Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 571 (7th Cir. 2003). If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, judgment is not just appropriate, it is required. See Celotex Corp., 477 U.S. at 322. ARGUMENT I. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S FAMILY AND MEDICAL LEAVE ACT CLAIMS. Plaintiff’s FMLA claims are meritless. Under the FMLA, eligible employees are entitled to up to twelve (12) weeks of unpaid leave per year for absence due to a “serious health condition” that renders the employee unable to perform the functions of her job. 29 U.S.C. § 2612(a)(1)(D); Nicholson v. Plute Homes Corporation, 690 F.3d 819, 825 (7th Cir. 2012); Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided.” 29 U.S.C. § 2615(a)(1); Nicholson, 690 F.3d at 825. Nor may an employer retaliate against an employee for exercising FMLA rights. 29 U.S.C. §2615(a)(2); Nicholson, 690 F.3d at 825. An interference claim requires proof that the employer denied the employee FMLA rights to which she was entitled; a retaliation claim requires proof of discriminatory or retaliatory intent. Id. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 3 of 29 PageID #:754 4 1. Plaintiff’s FMLA Interference Claim Fails. To prevail on an FMLA interference claim, Plaintiff must prove: (1) she was eligible for FMLA protection; (2) Humana was covered by the FMLA; (3) she was entitled to FMLA leave; (4) she provided sufficient notice of her intent to take leave; and (5) Humana denied her FMLA benefits to which she was entitled. Brown v. Auto. Components Holdings, LLC, 622 F.3d 685, 689 (7th Cir. 2010). Interference with an employee’s FMLA rights is not a violation if the employer had a legitimate reason for its actions. See McLaren v. Wheaton Coll., No. 14 C 9689, 2016 WL 3671448, at *10 (N.D. Ill. July 11, 2016) (“Whether [defendant] had a legitimate reason for terminating [plaintiff] is therefore relevant to [his] interference claim, not because interference claims require a showing of retaliatory intent, but because when an employer decides to terminate an employee who fails to meet expectations, the employee is not ‘entitled to leave under the FMLA.’”). If an employer provides a legitimate reason, “the employee then must overcome the employer’s assertion.” Cracco v. Vitran Exp., Inc., 559 F.3d 625, 636 (7th Cir. 2009). Plaintiff cannot establish a prima facie case of FMLA interference for three main reasons – (1) she cannot prove she was eligible for FMLA protection prior to March 2, 2015; (2) she cannot prove she was entitled to leave; and (3) she cannot prove she provided sufficient notice of her intent to take FMLA leave. Even if Plaintiff could establish a prima facie case, her claim still fails because Humana had a legitimate reason for issuing her a CCIP and for terminating her employment that is not pretextual. A. Plaintiff cannot prove she was eligible for FMLA protection prior to March 2, 2015. Here, Plaintiff claims that “at all times relevant she was qualified to receive FMLA or a reduced leave schedule because she suffered from a ‘serious health condition,’ which rendered her unable to perform the functions of her job during her intermittent absence for medical treatment.” ECF Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 4 of 29 PageID #:755 5 No. 14, ¶15. Plaintiff further claims she requested intermittent FMLA leave or a reduced leave schedule to seek medical treatment for her serious health conditions and that Defendants had actual notice she made such a request. Id., at ¶16. Yet, she admits that she took an extended, continuous FMLA leave on or about May 15, 2015. Id., at ¶172. To be eligible for FMLA leave, an individual must work for the employer for at least 12 months and have worked at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave – a fact to which Plaintiff was well aware. See 29 CFR Part 825.110(a)(1) and (2); SOF ¶51. Here, the earliest that Plaintiff could have been eligible for FMLA is March 2, 2015 – 12 months after her hire date. Any claim she was qualified for FMLA prior to that time fails. Plaintiff further admits that she began an FMLA leave on or about May 15, 2015. As such, her FMLA interference claim covers a two-month period between March 2, 2015 and May 15, 2015. B. Plaintiff cannot prove she was entitled to leave. An employee is entitled to FMLA leave if (1) she is afflicted with a “serious health condition” and (2) that condition renders her unable to perform the functions of her job. Guzman v. Brown County, 884 F. 3d 633, 638 (7th Cir. 2018). A serious health condition under the FMLA is defined as an “illness, injury, impairment, or physical or mental condition” that involves either “(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment3 by a healthcare provider.” 29 U.S.C. § 2611(11). Plaintiff alleges she suffers from 2 Plaintiff pled that her leave began on May 1, 2015 but her FMLA paperwork confirms she applied for leave on April 23, 2015 and it was granted beginning May 15, 2015. 3 “Treatment” includes examinations to determine if a serious health condition exists and evaluation of the condition; it “does not include actions such as calling to make an appointment” or “any activities that can be initiated without a visit to a health care provider.” 29 C.F.R. § 825.113(c); see Darst v. Interstate Brands Corp., 512 F.3d 903, 911 (7th Cir. 2008). Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 5 of 29 PageID #:756 6 Celiac disease (“Celiac”), migraines, anxiety and “various other health conditions” that are unidentified. ECF No. 14, ¶13. Here, it is not clear that Plaintiff suffered from Celiac, migraines, anxiety or any other condition until she filed for FMLA on April 23, 2015. First, the certification of healthcare form that Plaintiff submitted to support her request for FMLA does not mention Celiac or migraines. Plaintiff further admits that the doctor who completed the form told her he was not certain she had Celiac. SOF ¶55. The form states that Plaintiff suffered from “severe anxiety, headaches, GI upset due to significant work related/triggered stress.” Id. Second, the form notes these conditions started on April 22, 2015, and she began treating for them on April 27, 2015. Id. Plaintiff has provided no evidence she suffered from or was receiving inpatient care or continuing treatment for these conditions prior to April 27, 2015. Guzman, 884 F.3d at 638 (no evidence of serious health condition when plaintiff had been diagnosed with sleep apnea seven years prior and had not sought treatment or been diagnosed since then). Even if Plaintiff could establish that she was receiving continuing treatment for these conditions prior to April 27, 2015, Plaintiff testified these conditions did not affect her ability to perform the functions of her job. SOF ¶¶69, 71. As such, Plaintiff was not entitled to FMLA leave between March 2, 2015 and May 15, 2015. C. Plaintiff failed to put Defendants on notice of her need for FMLA leave. Plaintiff’s FMLA claim also fails because Defendants did not know of Plaintiff’s claimed serious health conditions or her need for leave prior to her taking continuous FMLA leave. The FMLA requires that “an employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request . . . . Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.” 29 C.F.R. § 825.303(b). An employee does not have to Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 6 of 29 PageID #:757 7 show, in this initial act of notifying her employer, that she can meet all of the requirements for qualifying for FMLA leave. “Nevertheless, the employee is required to provide at least some information that would make his employer aware of the possible need for leave.” Sechrist v. Harris Steel Co., No. 03 C 6197, 2005 WL 3216752, at *4 (N.D. Ill. Nov. 30, 2005). Once the employee has satisfied this initial duty, then the burden of moving the process forward effectively shifts back to the employer. See id. The employer also at this point has some duty of “further inquiry.” Sechrist, 2005 WL 3216752, at *3. The FMLA regulations state, for example, that “[t]he employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” 29 C.F.R. § 825.302(c); see 29 C.F.R. § 825.303(b) (once the employee provides notice, the employer “will be expected to obtain any additional required information through informal means”). Here, Defendants had no duty of “further inquiry” given Plaintiff never provided them with any information indicating she needed FMLA leave (or any other leave) before May 15, 2015 – the date Plaintiff admits she began continuous FMLA. Plaintiff admits that she knew how to ask for FMLA leave but did not do so and she did not ask to have a reduced leave scheduled because she did not think she needed such leave. SOF ¶58. Plaintiff’s claim is premised on the absurd notion that Defendants should have assumed she was suffering from severe diagnosed medical conditions and should have told her to seek FMLA because she had disagreements with Ms. Kavalle and Ms. Schoenheider about taking extended personal appointments during working hours. Yet, by Plaintiff’s own testimony, such disagreements happened twice – one of which occurred in 2014 before she was eligible for FMLA leave. The other took place one week before Plaintiff made an FMLA request. SOF ¶¶65-67. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 7 of 29 PageID #:758 8 Plaintiff further contends that Defendants had constructive notice of her need for FMLA leave because they knew of her conditions. However, Plaintiff admits she does not recall ever telling Ms. Kavalle or Ms. Schoenheider she had been diagnosed with anxiety or migraines. She contends that her colleagues knew she had Celiac because she mentioned she could not eat cookies or donuts due to gluten. She contends that she told Ms. Kavalle twice about her Celiac – the first time was in May 2014 when she returned from a dentist appointment and told Ms. Kavalle she believed her tooth pain was caused by Celiac. The second time was after she had applied for FMLA – via an email on May 13, 2015 – wherein she indicated she was having a Celiac flare. These alleged incidents fall far short of establishing inquiry notice. See Nicholson, 690 F.3d at 826 (one “casual conversation” insufficient to establish notice). D. Plaintiff fails to establish that Defendants did anything to deny or otherwise interfere with her right to FMLA benefits. Another problem with Plaintiff’s claim is that she fails to establish that Defendants did anything to deny or otherwise interfere with her right to FMLA benefits. It is indisputable that once Plaintiff followed Humana’s procedures for requesting FMLA leave, such leave was granted. While she further claims that Defendants issued her a CCIP, such issuance did not impact her FMLA benefits – indeed, the CCIP was issued on April 22, 2015 and she filed for FMLA the next day and began FMLA leave nine days later. Termination may constitute a denial of benefits. See Kauffman, 426 F.3d at 884. But here, Plaintiff was terminated in December 2016, well after she had taken and exhausted all available FMLA leave. Her claim fails. See Nicholson, 690 F.3d at 827-828 (decision to terminate was made after taking leave). Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 8 of 29 PageID #:759 9 2. Plaintiff’s FMLA Retaliation Claim Fails. Plaintiff alleges that she was unfairly disciplined and terminated for exercising her FMLA rights. ECF No. 14, ¶¶31, 34. Her retaliation claim similarly fails. To prevail on an FMLA retaliation claim, Plaintiff must present evidence she was subject to an adverse employment action that occurred because she requested or took FMLA leave. See Guzman, 884 F.3d at 640. Plaintiff can proceed under a direct method of proof or the indirect method. Curtis v. Costco Wholesale Corp., 807 F.3d 215, 220 (7th Cir. 2015). Plaintiff’s claim fails under the direct method because she cannot show there is a causal link to her exercise of FMLA rights and her discipline and/or termination. First, the CCIP was issued before Plaintiff exercised her FMLA rights and before Defendants had any inkling she might need FMLA. Second, the CCIP cannot be considered an adverse action as it resulted in no material change to Plaintiff’s terms and conditions of employment. Lucas v. Chicago Transit Auth., 367 F.3d 714, 731 (7th Cir. 2004) (“There must be some tangible job consequence accompanying the reprimand to rise to the level of a material adverse employment action; otherwise every reprimand or attempt to counsel an employee could form the basis of a federal suit.”). Regarding Plaintiff’s termination, there is no causal link because the termination occurred 16 months after Plaintiff’s FMLA leave exhausted. Further, the termination took place when Plaintiff refused to engage in the interactive process and it was blatantly obvious that she would not be returning to work. Plaintiff’s claim also fails under the indirect method, where Plaintiff must establish: (1) she engaged in statutorily protected activity; (2) she met Humana’s legitimate expectations; (3) she suffered an adverse employment action: and (4) she was treated less favorably than similarly situated employees who did not engage in protected activity. Cracco, 559 F.3d at 634-635. The Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 9 of 29 PageID #:760 10 only adverse employment action Plaintiff suffered was her termination. She cannot establish that she was meeting legitimate performance expectations – as evidenced in the numerous counseling sessions and the CCIP. She also cannot establish that she was treated less favorably than similarly situated employees who did not take FMLA. Plaintiff has no comparator evidence for the Court to consider. Even if she could establish a prima facie case, which she cannot, she cannot rebut Humana’s reason for terminating her employment – her inability to return to work 16 months after her FMLA leave exhausted and her request for indefinite leave. The retaliation claim must be dismissed. II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S DISABILITY CLAIMS. In Counts V and VI, Plaintiff asserts disability claims under the Illinois Human Rights Act (“IHRA”). Count V alleges failure to accommodate, whereas Count VI alleges disparate treatment. Courts evaluate claims under the IHRA under the same framework as the ADA. Rabe v. United Airlines, Inc., 971 F.Supp.2d 807, 821 (N.D. Ill. 2013). For the reasons noted below, both claims must be dismissed. 1. Plaintiff’s Failure to Accommodate Claim Fails. Plaintiff’s failure to accommodate claim fails because she failed to exhaust her administrative remedies by raising this claim in her Illinois Department of Human Rights Charge. See Ester v. Principi, 250 F.3d 1068, 1071 (7th Cir. 2001). Her charge alleges only that “Nancy Kavalle subjected me to unequal terms and conditions of employment when I was placed on a performance improvement plan for the stated reason that I was not a good employee. Similarly situated non-disabled employees were not subjected to unequal terms and conditions of employment under similar circumstances.” See ECF No. 14, Exhibit C, ¶¶ II.B, 3-4; III.B, 3-4; IV.B, 3-4; and V.B, 3-4. Nowhere does she mention a failure to accommodate. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 10 of 29 PageID #:761 11 This is significant because “a failure to accommodate claim is separate and distinct from a claim of discriminatory treatment ... Therefore, they are not like or reasonably related to one another, and one cannot expect a failure to accommodate claim to develop from an investigation into a claim that an employee was [discriminated against] because of a disability.” Green v. Nat'l Steel Corp., 197 F.3d 894, 898 (7th Cir. 1999); Herr v. City of Chicago, 479 F.Supp.2d 834, 839 (N.D. Ill. 2007) (failure to accommodate and disability discrimination are two distinct causes of action). The failure to accommodate claim Plaintiff alleges must be dismissed. Even had Plaintiff exhausted her administrative remedies, her claim would fail. To establish a failure to accommodate claim, Plaintiff must present evidence raising a triable issue of fact that: (1) she is a qualified individual with a disability; (2) Humana knew of her disability; and (3) Humana failed to reasonably accommodate her disability. See EEOC v. AutoZone, Inc., 809 F.3d 916, 919 (7th Cir. 2016). Without conceding Plaintiff is a qualified individual with a disability4, Plaintiff’s claim fails because she cannot establish that Humana knew of her claimed disabilities. The Regulations to the IHRA provide that it is “the duty of an individual seeking an accommodation to apprise the employer of his/her disabling condition and submit any necessary medical documentation. The disabled individual must ordinarily initiate the request for accommodation and must cooperate in any ensuing discussions and evaluation aimed at determining the possible or feasible accommodations.” 56 Ill. Admin. Code Sec. 2500.40(c)5. 4 Once Plaintiff began her 16-month leave of absence, she was no longer a qualified individual with a disability under the ADA. See Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017) (“[a]n employee who needs long- term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.”). 5 The Seventh Circuit has recognized an exception to the general rule that an employee must request an accommodation but this exception only applies when the plaintiff’s disability impairs her ability to communicate effectively regarding her need for an accommodation. See McKay v. Vitas Healthcare Corporation of Illinois, 232 F.Supp.3d 1038 (N.D. Ill. 2017). Plaintiff has not offered any evidence that her alleged conditions impeded her ability to ask for an accommodation or participate in the interactive process. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 11 of 29 PageID #:762 12 Plaintiff admits she never told Humana she has been diagnosed with anxiety or migraines and she gave insufficient notice of her alleged Celiac. She further admits that she never sought any accommodation from Humana’s human resources department for her alleged disabilities and never sought a reduced schedule because she did not think she needed one. Plaintiff also cannot show that Humana failed to reasonably accommodate her claimed disabilities. She maintains that she sought accommodations in being allowed to go to the dentist and doctor. While Defendants did not know of Plaintiff’s claimed disabilities, Plaintiff admits that she was never denied the ability to go to a medical appointment. Plaintiff also claims she sought an accommodation in a transfer to another position. Plaintiff maintains that on the first anniversary of her employment she told Ms. Kavalle she would be looking for other positions. Yet, she provided no testimony or any other evidence that she told Ms. Kavalle she was seeking other positions as an accommodation of her claimed disabilities. By Plaintiff’s own admission, even if she had told Ms. Kavalle she was looking for a transfer as an accommodation, a transfer would not have accommodated Plaintiff because she repeatedly testified that her conditions did not interfere with her ability to do her job. Rather, she simply wanted a transfer because she thought it would allow her to work fewer hours and experience less stress. See Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir.1996) ( “the ADA may require an employer to reassign a disabled employee to a different position as reasonable accommodation where the employee can no longer perform the essential functions of [her] current position.”). It is also well established that an employer must provide a qualified individual with a reasonable accommodation, not the accommodation she would prefer. See Malabarba v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir.1998); Gile, 95 F.3d at 499. Plaintiff admits she was accommodated because she was never denied the ability to take medical appointments. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 12 of 29 PageID #:763 13 Furthermore, once Plaintiff exhausted her FMLA and Humana knew of her disabilities, it accommodated her by allowing her a continued leave of absence for a 16-month period. Plaintiff admits that she failed to engage in the interactive process when Humana contacted her while on this leave and she admits that she could/would not return to work. In essence, Plaintiff was seeking an indefinite leave of absence – which is not a reasonable accommodation. Severson, 872 F.3d at 476 (the “ADA is an antidiscrimination statute, not a medical-leave entitlement.”) 2. Plaintiff’s Disparate Treatment Claim Fails. To sustain a claim of disparate treatment under the ADA, a plaintiff must show that: (1) she suffers from a disability; (2) she is qualified to perform the essential functions of the job6; and (3) she suffered an adverse employment action due to her disability. McKay, 232 F.Supp. at 1045. The Seventh Circuit eliminated the distinction between direct and indirect evidence in employment discrimination cases, but retained the McDonnell Douglas burden-shifting framework. Id. Thus, when an employer can offer a legitimate non-pretextual reason for the adverse action, the plaintiff must provide evidence that the reason is pretextual. Id. The undisputed evidence establishes that Plaintiff was not subjected to adverse employment actions prior to her termination. “An adverse employment action ‘significantly alters the terms and conditions of the employee’s job,’ and a mere ‘inconvenience or a change in job responsibilities’ cannot qualify.” Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004) (change of shift, discipline, letters of warning, and assignments to difficult and additional work were not adverse actions); see also Chaudhry v. Nucor Steel–Indiana, 546 F.3d 832, 838 (7th Cir.2008) (a materially adverse employment action is a “significant change in employment status, such as 6 As previously noted, Plaintiff was no longer qualified once she began her 16-month leave of absence. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 13 of 29 PageID #:764 14 hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). Plaintiff maintains she was subject to adverse action when: (1) she was placed on the CCIP; (2) the CCIP was faxed in a manner where it could be seen by others; (3) she was required to perform increased duties and responsibilities; (4) she was denied a transfer; (5) she was denied the ability to attend her medical appointments; and (6) she was terminated. Humana does not deny that the termination was an adverse action. However, the rest of the actions of which she complains were not. Regarding the CCIP, the evidence shows it was Plaintiff’s own failure to follow protocol that caused the CCIP to be potentially viewable to others. However, there is no evidence that anyone else saw its contents. Even if they had, it would not constitute an adverse action. As noted above, the CCIP itself is not actionable as there was no material change to Plaintiff’s terms and conditions of employment. Lucas, 367 F.3d at 731. The alleged denial of a transfer is not an adverse action. See Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (a lateral transfer is not a materially adverse action). Plaintiff also has no evidence she was denied a transfer because of her alleged disabilities. Monroe v. Indiana Dep’t of Transportation, 871 F.3d 495, 503 (7th Cir. 2017) (a plaintiff must show a genuine issue of material fact exists regarding whether her disability was the “but for” reason for the adverse action). She claims that she interviewed for a position but did not hear back. Yet, she never stated she was seeking a transfer as an accommodation. She admits that a transfer was not a guarantee and that she would be considered by the decision-maker for the position along with anyone else who applied. There is no evidence that the decision-maker for the position for which she claims Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 14 of 29 PageID #:765 15 to have interviewed knew of her alleged disabilities or ever contacted Ms. Kavalle and/or Ms. Schoenheider to discuss Plaintiff as a candidate. As for her termination, Humana reasonably ended Plaintiff’s employment after she had been on a leave of absence for 16-months and she made known her intent to never return to work. At that point, she was no longer qualified to perform the essential functions of her job. Plaintiff cannot provide evidence from which a reasonable factfinder could conclude that Humana’s termination of her employment was pretextual. “Pretext involves more than just faulty reasoning or mistaken judgment on the part of the employer; it is [a] ‘lie, specifically a phony reason for some action.’” Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir. 2008) (quotation omitted). When “assessing a … claim that an employer’s explanation is pretextual, we do not ... second-guess[] an employer’s facially legitimate business decisions.” Id. (internal quotation marks omitted). Plaintiff must also show that similarly situated individuals who were not disabled were treated better to establish the correlation between her status as a disabled individual and the adverse action. Id., at 504.7 This she cannot do as she presented no evidence of any other RN Clinical Advisor who reported to Ms. Kavalle who was not disabled but treated better under similar circumstances. See Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (failure to identify an employee that received more favorable treatment ends the prima facie inquiry); Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009) (similarly situated employees must be directly comparable to plaintiff in all “material respects”). The disparate treatment claim fails and must be dismissed. 7 The Court need not consider this element because Plaintiff’s failure to make a sufficient showing on any one essential element on which she bears the burden of proof “renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323. Yet, if this Court considers the record evidence, it is clear that she cannot identify a comparator. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 15 of 29 PageID #:766 16 III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S AGE DISCRIMINATION CLAIM. Plaintiff’s age discrimination claim is brought under the IHRA and is analyzed under the same framework as the Age Discrimination in Employment Act (“ADEA”). To succeed on an age discrimination claim, Plaintiff must prove that any “adverse action” (such as her discharge) would not have occurred “but for” Humana’s motive to discriminate against her based on her age. See Ferguson v. Exelon Nuclear, 2011 WL 1231600, *4 (N.D. Ill. 2011); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).8 Here, to survive summary judgment in her age discrimination claim, Plaintiff must present evidence that, considered as a whole, would allow a reasonable juror to conclude that “but for” her age, she would not have been terminated. Plaintiff fails to meet her burden. To establish the elements of a prima facie case of ADEA discrimination, Complainant must show (1) she is a member of a protected class; (2) she was meeting her employer’s legitimate performance expectations; (3) she suffered an adverse employment action; and (4) the employer treated similarly situated employees outside the protected class more favorably. See Ferguson, 2011 WL 1231600, at *4. Plaintiff’s ADEA claim fails for the same reason her disability disparate treatment claim fails. First, she was not meeting HIC’s legitimate performance expectations – as evidenced through the numerous coaching sessions she received and the CCIP. Second, as already noted, other than her termination, she suffered no adverse action.9 Third, she has identified no comparator who was treated more favorably. While Plaintiff alleges she was the oldest or one of 8 As with the disability disparate treatment claim, a McDonnell Douglas analysis still applies but an assessment of the evidence “‘cumulatively’ to determine whether a jury could find that the challenged employment action was attributable to a proscribed factor” should be done. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016); Morrill v. Nielsen, 2018 WL 3141798 (N.D. Ill. June 27, 2018). 9 Plaintiff claims that because of her age she was subjected to the same alleged discriminatory conduct she alleged in her disability disparate treatment claim. Id. at ¶80. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 16 of 29 PageID #:767 17 the oldest employees in her group at HIC (ECF No. 14, ¶79), she actually was one of the youngest. Of the 13 people in her group, 11 were 40 or older and there were eight individuals older than Plaintiff. SOF ¶¶20-21. The only adverse employment action Humana took towards Plaintiff was her termination and it had a legitimate, non-discriminatory reason for doing so. No reasonable trier of fact could conclude that “but for” her age, Humana would not have terminated her. The age discrimination claim must be dismissed. IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S RETALIATION CLAIM. Plaintiff’s retaliation discrimination claim is brought under the IHRA. To support a retaliation claim, Plaintiff must show that: (1) she engaged in protected activity; (2) Humana subjected her to an adverse employment action; and (3) there was a causal connection between the two. McKay, 232 F.Supp.3d at 1046. Again, the Seventh Circuit no longer distinguishes between direct and indirect evidence. Rather, the key question is whether “the record contain[s] sufficient evidence to permit a reasonable fact finder to conclude that retaliatory motive caused the discharge.” Id., quoting Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016). There is no evidence Plaintiff participated in any statutorily protected activity. Humana does not dispute that Plaintiff contacted the Ethics Line on or about April 28, 2015, after she received the CCIP. Plaintiff maintains she contacted the Ethics Line because she was upset that the CCIP had been faxed to the team box. However, her report raised no claim that she was being subjected to discrimination on any basis. Similarly, the Resolving Issues Report Request Form that Plaintiff submitted on or about May 1, 2015 was a panoply disputing her CCIP. Yet nowhere did she allege that she was subjected to discrimination on any basis. She did not engage in protected activity, as her complaints had no connection to the alleged disability, age and/or FMLA Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 17 of 29 PageID #:768 18 violations she now claims. See Morrill, 2018 WL 3141798, *13 (plaintiff’s claim that supervisors retaliated against him for complaining about the merit selection system was not tied to the alleged age discrimination and did not need to be addressed). Plaintiff claims that after making the above-referenced complaints she was subjected to adverse actions by: not being paid while on short-term disability; being denied a transfer; having her request for the CCIP to be removed from her personnel file denied; not being given a reduced schedule or intermittent leave; and termination. For the reasons explained above, infra Sections I.2 and II.2, Plaintiff cannot establish that she suffered any adverse employment action prior to her termination.10 Even if the Court found that Plaintiff’s complaints constituted protected activity, there is no causal connection between those complaints and Plaintiff’s termination. Plaintiff simply cannot prove that but for her complaints she would not have been terminated. See Hillmann v. City of Chicago, 14 F. Supp. 3d 1152, 1179 (2014) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013) for “but for” standard). Even if the Court found that a causal link exists, Humana has established legitimate reasons for its decision to terminate Plaintiff’s employment and Plaintiff has not — nor can she — prove pretext. V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE CLAIMS. In Count X of the Amended Complaint, Plaintiff alleges an Illinois common law claim for intentional infliction of emotional distress against Humana. Specifically, she claims that Defendants knew she was peculiarly susceptible to emotional distress and that despite this 10 With respect to Plaintiff’s claim that she was not paid while on short-term disability, Plaintiff was not paid for a period of time while her claim was denied. HIC does not administer short-term disability benefits and is not responsible for the denial of her claim. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 18 of 29 PageID #:769 19 knowledge, they issued her a CCIP that contained numerous false statements about her performance, conduct and behavior, which they then disclosed by faxing it to her colleagues. Plaintiff claims these actions caused her to suffer severe emotional distress, resulting in her taking continuous FMLA. In Count XI, Plaintiff alleges an Illinois common law claim for tortious interference with prospective economic advantage against Ms. Kavalle and Ms. Schoenheider in which she claims she had a reasonable expectancy of continued and ongoing employment with HIC through retirement age. She maintains that Ms. Kavalle and Ms. Schoenheider knew of this reasonable expectancy, and purposely and intentionally interfered with it by retaliating against her for engaging in protected activity under the IHRA and FMLA. She claims this interference caused Humana to terminate her. These claims, by Plaintiff’s own admission in her pleadings, are inextricably linked to her discrimination claims and must be dismissed because they are preempted by the IHRA and barred by the exclusivity provision of the Illinois Workers’ Compensation Act (“IWCA”), 820 ILCS 305/1 et seq. The IHRA gives the Illinois Human Rights Commission exclusive jurisdiction over civil- rights violations. 775 Ill. Comp. Stat. 5/8-111(D) (“Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.”). Employment discrimination is defined in the IHRA as incidents involving “promotion, renewal of employment … discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination …” Id., 5/2-102(A). The IHRA further provides that “[i]t is a civil rights violation for a person, or for two or more persons to conspire, to . . . [r]etaliate against a person because he or she has opposed that which he or she Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 19 of 29 PageID #:770 20 reasonably and in good faith believes to be unlawful discrimination, sexual harassment in employment.” Id., 5/6–101(A). The Illinois Supreme Court has held that if a common law action is in essence one which seeks redress for a “civil rights violation” as defined by the IHRA and there is no basis for the action other than the IHRA, the circuit court lacks jurisdiction to adjudicate the claim. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill.2d 507, 516, 203 Ill. Dec. 454, 639 N.E.2d 1273 (1994); Mein v. Masonite Corp., 109 Ill.2d 1, 7, 92 Ill. Dec. 501, 485 N.E.2d 312 (1985). A common law action is preempted by the IHRA when the act “furnish[es] the legal duty that the defendant was alleged to have breached.” Bannon v. Univ. of Chicago, 503 F.3d 623, 630 (7th Cir. 2007). A plaintiff’s claim is preempted when her allegations “implicate only a duty provided by the IHRA, such as the duty of employers to refrain from discriminating against employee on the basis of their race.” Id. Framing a claim in terms of a tort does not “alter the fundamental nature of [a] cause of action.” Geise, 159 Ill. 2d 507. Here, Plaintiff’s state law claims are based on her allegations that Ms. Kavalle and Ms. Schoenheider – her supervisors at HIC – caused her emotional distress and interfered with her economic, business, and employment relationships by issuing her a CCIP and by “retaliating against her for engaging in protected activity under the IHRA and FMLA.” By Plaintiff’s own admission, that conduct was the alleged discriminatory and retaliatory behavior. Plaintiff maintains that Ms. Kavalle and Ms. Schoenheider breached their duty under the IHRA to refrain from discrimination and retaliation and that such breach caused her emotional distress and interfered with her prospective economic advantage. There is no basis for Plaintiff’s state law tort claims other than the alleged discriminatory and retaliatory acts because the behavior would not Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 20 of 29 PageID #:771 21 be a tort in itself were the motivation for it not discriminatory. See Travis v. City of Chicago, 2012 WL 2565826, *6 (N.D. Ill. June 29, 2012). Even if Plaintiff’s tortious interference claim was not preempted – which it is – she cannot establish that (1) she had a reasonable expectation of continued employment; (2) Defendants knew of that expectancy; (3) Defendants interfered to defeat Plaintiff’s expectancy; and (4) Plaintiff incurred damages because of such interference. See Fellhauer v. City of Geneva, 142 Ill.2d 495, 568 N.E.2d 870 (Ill. 1991). Normally, a tortious interference claim “lies only against a third party who causes the employer/employee relationship to end” and not corporate officers, supervisors or co-workers, who are generally shielded from personal liability by the “corporate officer” privilege in taking action on behalf of a corporation. Naeemullah v. Citicorp Servs., Inc., 78 F.Supp.2d 783, 793 (N.D. Ill. 1999). A claim against co-worker will not be defeated, however, if a plaintiff can show, regarding the third-prong, that the defendant acted “with personal animosity against him and that he acted for his own personal interests – contrary to those of the corporation.” Id. Plaintiff was an at-will employee who could have no legitimate expectation that her employment with HIC would continue through her retirement and she has produced no evidence that Ms. Kavalle or Ms. Schoenheider knew of that unreasonable expectancy. She has not provided evidence that either Ms. Kavalle or Ms. Schoenheider acted with personal animosity and in their own interest in issuing the CCIP. Indeed, there is no evidence to suggest that issuing the CCIP was unjustified. Moreover, neither Ms. Kavalle nor Ms. Schoenheider were involved in the decision to terminate Plaintiff’s employment. Her claim fails. Plaintiff’s intentional infliction of emotional distress claim is also barred by the exclusivity provision of the IWCA. Under Section 5(a) of the IWCA, “[n]o common law or statutory right to recover damages from the employer ... for injury or death sustained by any employee while Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 21 of 29 PageID #:772 22 engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act....” 820 ILCS 305/5(a). Section 11 of the Act also states, “[T]he compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer . . . for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act[.]” 820 ILCS 305/11. Thus, “[t]he IWCA abrogates employer liability for all common law negligence claims.” Arnold v. Janssen Pharm., Inc, 215 F.Supp.2d 951 at 957 (N.D. Ill. 2002) (quoting Walker v. Doctors Hosp., 110 F.Supp.2d 704, 714 (N.D. Ill. 2000)). The courts have held that claims sounding in intentional infliction of emotional distress are barred by the IWCA. Schroeder v. RGIS, Inc., 2013 IL App (1st) 122483 (2013); Doe v. La Magdalena II, Inc., 585 F.Supp.2d 984, 986; Kauffman v. Petersen Health Care VII, LLC, No. 12-2079, 2012 WL 2905262 at *6 (C.D. Ill. June 22, 2012). To be exempt from this bar, a plaintiff must establish that the injury “(1) was not accidental, (2) did not arise from his or her employment, (3) was not received during the course of employment or (4) was noncompensable under the Act.” Collier v. Wagner Castings Co., 81 Ill.2d 229, 237 (Ill. 1980). Plaintiff’s Amended Complaint forecloses exemption from the bar because she repeatedly alleges that her injuries arose from her employment and were received during the course of her employment. She also cannot establish that her alleged injury was not accidental “[b]ecause injuries intentionally inflicted by a co-worker are accidental from the employer’s point of view” and “the employer has a right to consider that the injured employee’s sole remedy against the employer will be under the workers’ compensation statute.” Meerbrey v. Marshall Field & Co., Inc., 139 Ill.2d 455, 464-64, 564 N.E.2d at 1226 (1990). And Plaintiff cannot establish the final prong because emotional distress claims are compensable under the IWCA. Id. at 468; Collier, 81 Ill.2d 229 (emotional distress, including Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 22 of 29 PageID #:773 23 emotional distress intentionally inflicted by a co-employee, is compensable under IWCA). Plaintiff’s common law tort claims are inextricably linked to her discrimination claims and must be dismissed. VI. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S FLSA AND ILLINOIS MINIMUM WAGE LAW CLAIMS. Despite admitting that she was hired for an exempt position and that she knew she was not eligible to receive overtime pay, Plaintiff maintains that throughout her employment she worked more than 40 hours per week without overtime pay. Plaintiff developed no evidence or support for her claim. Plaintiff’s role as a Clinical RN Advisor is subject to both the professional and administrative exemptions under the FLSA and IMWL. Her claim must be dismissed. In April 2018, the Supreme Court issued a ruling in Encino Motorcars, LLC v. Navarro, 138 S.Ct. 11134, 1142 (2018), in which it rejected the long-accepted premise that FLSA exemptions are to be narrowly construed and finding that the “exemptions are as much a part of the FLSA’s purpose as the overtime-payment requirement.” The Supreme Court further reasoned that it has “no license to give the [FLSA] exemption[s] anything but a fair reading.” Id. Viewing Plaintiff’s position through the “fair reading” lens, it is evident that the position is exempt under both the professional and the administrative exemptions. 1. The Professional Exemption Applies. For the professional exemption to apply, an employee must be compensated on a salary basis at not less than $455 per week and have as their primary duty the performance of work requiring knowledge of an advanced type in a field of science or learning, customarily acquired by a prolonged course of specialized intellectual instruction. 29 C.F.R. § 541.300. The salary basis Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 23 of 29 PageID #:774 24 component of the exemption is satisfied because Plaintiff earned $2,730.77 biweekly/$71,000 annually – triple the required amount.11 On the primary duty test, the DOL has provided specific guidance for nurses: “Registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption.” 29 C.F.R. § 541.301(e)(2). Plaintiff is a licensed registered nurse and unquestionably qualifies for the professional exemption. Besides the fact that RNs are expressly identified by the DOL as ordinarily exempt, courts have held that the exemption applies even if the RNs are not interfacing directly with patients. See e.g., Powell v. American Red Cross, 518 F.Supp.2d 24 (D.D.C. 2007) (medical assessment nurse was exempt and stating, “it is clear, based on the technical, medical nature of both the records and guidelines involved, that [p]laintiff used her advanced knowledge as a registered nurse in making these important determinations”). The weight of case law authority regarding similar or identical nursing positions supports that Plaintiff’s Clinical RN Advisor position is exempt. In Withrow v. Sedgwick Claims Management Service, Inc., 841 F.Supp.2d 972, 987 (S.D. W. VA 2012), the court held that a utilization review nurse was exempt because she “used her advance knowledge to consistently exercise judgement in determining whether a treatment requested by a claimant was related to the compensable injury.” In Rieve v. Coventry Health Care, Inc., 870 F.Supp. 2d 856 (C.D. Cal. 2012), the court held a nurse case manager was exempt. The role in Rieve was very similar to Plaintiff’s here because she spoke with doctors, patients, and claims adjusters to understand a patient’s conditions and then evaluate whether the provided care was appropriate and whether procedures 11 On March 7, 2019, the U.S. Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking regarding overtime pay. Specifically, the DOL plans to raise the salary level to $679 per week. Plaintiff’s pay would even meet this proposal. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 24 of 29 PageID #:775 25 and treatments are necessary. In Williams v. GENEX Servs., Inc., 2014 WL 4388360 , *7 (D. Md. Sept. 4, 2014), aff’d sub nom., 809 F.3d 103 (4th Cir. 2015), the court followed suit, citing Withrow and Rieve in holding that a field medical case manager with similar job duties was exempt under the FLSA’s professional exemption. In Powell, 518 F.Supp.2d 24, the court held that a medical records review nurse, whose role was very similar to Plaintiff’s role, was exempt under the professional exemption. In Isett v. Aetna Life Ins. Co., 2018 WL 46972778, *1 (D. Conn. Sept. 30, 2018), the court found that an Appeals Nurse Consultant-RN – who reviewed claims for health insurance benefits denied by the insurance company – was also exempt. Both the Powell and Rieve courts have noted that they are “unaware of any case in which a registered nurse has been found not to satisfy the primary duty test.” Powell, 518 F.Supp.2d at 39; Rieve, 870 F.Supp.2d at 864. As with Plaintiff here, the plaintiffs in the above cases used manuals to assist them in performing their jobs. Yet this precluded none of the courts from ruling they were exempt professionals under the FLSA. In rejecting an argument to the contrary, the Rieve court noted, “although the Manual here contained guidelines as to Plaintiff’s handling of each case, she must still deal with the individual intricacies of each patient’s case.” Rieve, 870 F.Supp.2d at 865. “Even if [p]laintiff follows the same routine for each patient based on the FCM Manual, like the plaintiff in Powell, her decisions are fact-specific and tailored to each of her patient’s individual situations. Such individualized attention is probative of the advanced knowledge required to carry out Plaintiff’s duties.” Id. Precisely the same can be said for the decisions made by Plaintiff in this case. Plaintiff was assigned as the contact responsible for the admission review, post-discharge calls, and discharge planning for Humana Plan members for several long-term nursing facilities. Her main role was to collaborate with other healthcare providers in reviewing actual and proposed medical care and services, and offering alternatives, for Humana Plan members against established Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 25 of 29 PageID #:776 26 CMS Coverage Guidelines review criteria. Her decisions were fact-specific and tailored to each member’s individualized situation and she needed to use her advanced knowledge in making those decisions. Plaintiff’s claims must be dismissed because she is exempt under the professional exemption. 2. The Administrative Exemption Applies. The administrative exemption also applies to Plaintiff’s role. This exemption applies to employees (1) compensated on a salary basis at not less than $455 per week; (2) whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) whose primary duty includes the exercise of discretion and independent judgment matters of significance. 29 C.F.R. § 541.200. There is no question that Plaintiff’s role satisfied the first and third prong. On the second prong, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment. 29 C.F.R. § 541.201(a). Clearly, Plaintiff’s work was related to servicing Humana’s insurance business; she held a vital role regarding controlling approved medical procedures to those which were medically necessary for individual members. Although Plaintiff was not producing Humana’s product, she was assisting with managing its product. A review of the regulations proves this point. The regulations list several functional areas of a business, work within which would be considered “directly related to management of general business operations” for purposes of the exemption. Two of those areas listed are “quality control” and “legal and regulatory compliance.” 29 C.F.R. § 541.201(b). Plaintiff’s role was very similar to work in both areas and, as such, the second prong is satisfied. Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 26 of 29 PageID #:777 27 On the third prong, the requisite exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. This was Plaintiff’s very job. The portion of the regulations that describes the factors to be considered in determining whether the employee exercises the requisite discretion and independent judgment supports that Plaintiff is exempt. Regarding Plaintiff’s role, the answer to each probing questions from the regulations is “yes”: “whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval whether the employee has authority to negotiate and bind the company on significant matters…” 29 C.F.R. § 541.202(b). Plaintiff exercised the requisite discretion and independent judgment to satisfy the administrative exemption. HIC surely would not have paid Plaintiff the substantial salary she received if her education, background and judgment as a RN was unnecessary to perform her job duties. Additionally, recent DOL letters support that Plaintiff is subject to the administrative exemption. In an opinion letter dated January 5, 2018, the DOL considered the exempt status of two positions at a medical staffing company which served as their employer’s main resource on clinical issues: Clinical Coordinators (who had to be RNs with three years’ experience) and Coordinators (who did not need to be RNs). The DOL concluded both were exempt administrative employees. See Wage and Hour Opinion Letter FLSA2018-12 (Jan. 5, 2018). And a second opinion letter from that date concluded that “evaluating and approving information to ensure accuracy and relevancy” and “reviewing reports and recommendations” constitute the exercise of Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 27 of 29 PageID #:778 28 discretion and independent judgment regarding matters of significance. See Wage and Hour Opinion Letter FLSA-2018-13 (Jan. 5, 2018). These duties parallel many tasks Plaintiff performed, further underlining that Plaintiff was performing exempt work. Plaintiff’s overtime claims must be dismissed. CONCLUSION For all the foregoing reasons, Defendants respectfully urge this Court to grant its Motion for Summary Judgment in its entirety and to dismiss Plaintiff’s Amended Complaint. Dated: April 12, 2019 Jennifer L. Colvin (ARDC# 6274731) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 155 North Wacker Drive, Suite 4300 Chicago, IL 60606 312.558.1220 jennifer.colvin@ogletreedeakins.com Respectfully submitted, By: /s/ Jennifer L. Colvin One of The Attorneys for Defendants HUMANA INSURANCE COMPANY, NANCY KAVALLE, and DONNA SCHOENHEIDER Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 28 of 29 PageID #:779 CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that on April 12, 2019, the foregoing Memorandum In Support of Motion for Summary Judgment was filed electronically with the Clerk of Court using the ECF system, which sent notification of such filing to the following: Renae Unruh 335 Cascade Lane Oswego, IL 60543 renaelynnrn@outlook.com Pro Se Plaintiff On the same date, the undersigned attorney also sent a copy of this filing by FedEx to Renae Unruh at the above noted address. /s/ Jennifer L. Colvin 38068382.1 Case: 1:17-cv-01782 Document #: 87 Filed: 04/12/19 Page 29 of 29 PageID #:780