Boyd v. Humana Insurance Company

MOTION for Summary Judgment and Brief In Support

W.D. Okla.January 16, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA Case No. CIV–17–710–HE CATHERINE BOYD, Plaintiff, vs. HUMANA INSURANCE COMPANY, Defendant. DEFENDANT HUMANA INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT VICTOR F. ALBERT, OBA #12069 BRANDON D. KEMP, OBA #31611 Of the firm: OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C 101 Park Ave., Ste. 1300 Oklahoma City, OK 73102 Telephone: (405) 546-3755 Facsimile: (405) 652-1401 Email: victor.albert@ogletree.com Email: brandon.kemp@ogletree.com Attorneys for Defendant, Humana Insurance Company January 16, 2018 Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 1 of 38 i TABLE OF CONTENTS INTRODUCTION ............................................................................................................. 2 STATEMENT OF UNDISPUTED MATERIAL FACTS ............................................. 3 I. Humana and Its Policies ............................................................................................ 3 II. Plaintiff’s Employment at Humana ........................................................................... 5 III. Plaintiff’s Workplace Issues .................................................................................. 7 IV. Plaintiff’s Absences Were Not FMLA-protected .................................................. 9 STANDARD OF REVIEW ............................................................................................. 12 ARGUMENT & AUTHORITIES .................................................................................. 13 I. Plaintiff Cannot Establish an FMLA Interference Claim........................................ 13 A. Plaintiff cannot establish the first prima facie element that she was entitled to FMLA leave. .............................................................................................................. 15 i. Plaintiff failed to provide the required medical certification so she was not eligible for FMLA leave regarding her daughter’s broken arm. ............................ 15 ii. Plaintiff did not provide Humana any notice for any other absence that would implicate FMLA eligibility. ................................................................................... 18 B. Plaintiff cannot establish the second prima facie element that Humana took adverse action to interfere with her right to take FMLA leave. ................................. 20 C. Because any adverse action taken against Plaintiff was unrelated to her taking FMLA leave, Plaintiff cannot establish an FMLA interference claim. ..................... 22 II. Plaintiff Cannot Establish an FMLA Retaliation Claim. ....................................... 23 A. Because Plaintiff did not engage in any protected activity, Plaintiff cannot state a claim for FMLA retaliation. ....................................................................................... 25 B. Plaintiff cannot prove that Humana’s legitimate, non-discriminatory reasons for terminating her were pretext for discrimination. ....................................................... 27 CONCLUSION ................................................................................................................ 29 Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 2 of 38 ii TABLE OF AUTHORITIES Cases Page(s) Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242 (10th Cir. 2000) ................................................................................... 12 Allender v. Raytheon Aircraft Co., 339 F.Supp.2d 1196 (D.Kan.2004) .............................................................................. 15 Baldwin-Love v. Electronic Data Sys. Corp., 307 F. Supp. 2d 1222 (M.D. Ala. 2004) ...................................................................... 25 Branson v. Price River Coal Co., 853 F.2d 768 (10th Cir. 1988) ..................................................................................... 27 Brown v. Pension Bds., 488 F. Supp. 2d 395 (S.D.N.Y. 2007) .......................................................................... 26 Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282 (10th Cir. 2007) ....................................................................... 14, 20, 25 Carter v. Arbors E., Inc., No. 2:09-CV-968, 2011 WL 1641153 (S.D. Ohio May 2, 2011) ................................ 26 Carter v. Rental Uniform Serv. of Culpeper, Inc., 977 F.Supp. 753 (W.D.Va.1997) ................................................................................. 19 Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000) ................................................................................... 25 Castellano v. Charter Communs., 2013 WL 6086050 (W.D. Wash. Nov. 19, 2013) ........................................................ 21 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..................................................................................................... 12 Dalpiaz v. Carbon Cty., 760 F.3d 1126 (10th Cir. 2014) ................................................................................... 23 Dey v. Marshall, No. 01 C 9810, 2002 WL 773989 (N.D. Ill. Apr. 29, 2002) ....................................... 19 Franzen v. Ellis Corp., 543 F.3d 420 (7th Cir. 2008) ....................................................................................... 21 Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 3 of 38 iii Gaige v. SAIA Motor Freight Line, LLC, 672 F. App’x 787 (10th Cir. 2016) .............................................................................. 15 Geromanos v. Columbia Univ., 322 F. Supp. 2d 420 (S.D.N.Y. 2004) .......................................................................... 21 Goodman v. Bestbuy, Inc., No. CIV 05-1657 .......................................................................................................... 26 Gunnell v. Utah Valley State Coll., 152 F.3d 1253 (10th Cir. 1998) ................................................................................... 24 Hartman v. Dow Chem. Co., 657 F. App’x 448 (6th Cir. 2016) ................................................................................ 28 Jones v. Denver Pub. Sch., 427 F.3d 1315 (10th Cir. 2005) ................................................................................... 14 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ..................................................................................................... 24 McGuiness v. East W. Indus., 857 F. Supp. 2d 259 (E.D.N.Y 2012) .......................................................................... 25 McKinzie v. Sprint/United Mgmt. Co., No. CIV.A.03-2348-GTV, 2004 WL 2634444 (D. Kan. Nov. 16, 2004).............. 20, 22 Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164 (10th Cir. 2006) ....................................................................... 24, 27, 28 Miller v. Venator Group, Inc., No. 00 C 0454, 2000 WL 648186 (S.D.N.Y. May 18, 2000) ...................................... 19 Novak v. MetroHealth Med. Ctr., 503 F.3d 572 (6th Cir. 2007) ....................................................................................... 25 O’Reilley v. Rutgers, 2006 WL 141895 (D.N.J. Jan. 19, 2006) ..................................................................... 14 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) ....................................................................................................... 21 Robinson v. Farmers Servs. L.L.C., No. 10-CV02244-JTM, 2010 WL 4067180 (D. Kan. Oct. 15, 2010).......................... 16 Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 4 of 38 iv Rocky v. Columbia Lawnwood Reg’l Med. Ctr., 54 F. Supp. 2d 1159 (S.D. Fla. 1999) .......................................................................... 26 Seguin v. Marion Cty. Health Dep’t, No. 5:13-CV-96-OC-10PRL, 2014 WL 3955162 (M.D. Fla. Aug. 13, 2014) ............................................................................................................................ 22 Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160 (10th Cir. 2007) ................................................................................... 27 Thomas v. Dolgencorp, LLC, 645 F. App’x 948 (11th Cir. 2015) .............................................................................. 28 Statutes 29 U.S.C. § 2611(11) ......................................................................................................... 19 29 U.S.C. § 2612(a)(1)………………………………. ..................................................... 14 29 U.S.C. § 2614(a)(1) ...................................................................................................... 14 Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. ........................................ passim Other Authorities 29 C.F.R. § 825.302(c) ...................................................................................................... 18 29 C.F.R. § 825.303(a) ...................................................................................................... 18 29 C.F.R. § 825.305(a) ...................................................................................................... 15 29 C.F.R. § 825.305(b) ................................................................................................ 16, 17 29 C.F.R. § 825.305(c) ...................................................................................................... 16 29 C.F.R. § 825.312(b) ...................................................................................................... 14 29 C.F.R. § 825.313(b) ...................................................................................................... 17 29 CFR § 825.302(a) ......................................................................................................... 18 29 CFR § 825.302(d) ......................................................................................................... 19 29 CFR § 825.303(c) ......................................................................................................... 19 Rule 56 of the Federal Rules of Civil Procedure ........................................................... 1, 12 Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 5 of 38 v Local Rule 56.1……………………………………………………………… ................... 1 Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 6 of 38 1 Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 56.1 of the Western District of Oklahoma Local Rules, Defendant, Humana Insurance Company (“Humana”), requests the Court to issue an Order granting summary judgment in its favor on all of Plaintiff’s remaining claims, namely the alleged interference and retaliation claims under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. The evidence establishes that Plaintiff was absent from, late to, or left early from work 22 times in a seven-month period, which was a gross violation of Humana’s attendance policies. Plaintiff’s employment with Humana was terminated for the legitimate, non-discriminatory reason of these excessive unprotected absences, tardies, and early departures from work. Plaintiff was not terminated for any absences, tardies, or early departures that were protected by FMLA leave, and Humana did not interfere with Plaintiff’s opportunity to take FMLA leave. Rather, Plaintiff never submitted the requisite medical certification for her absences that might have qualified for FMLA leave and her other absences were otherwise unprotected. Further, even if Plaintiff had FMLA leave for the absences related to her daughter’s broken arm, Plaintiff nevertheless would have been absent from, been tardy to, or left early from work 17 times in a seven month period for unprotected reasons. This still would have an unacceptable violation of Humana’s attendance policies. The Court should enter summary judgment against Plaintiff and in favor of Humana on all of Plaintiff’s remaining claims. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 7 of 38 2 INTRODUCTION This case is straightforward, and it should be resolved through summary judgment. Plaintiff began her employment at Humana in 2011 at Humana’s Tulsa, Oklahoma office as a Medical Record Retrieval Specialist. In 2014, Plaintiff transferred to a work-from-home position covering the Oklahoma City metro territory. In 2015, Plaintiff began having substantial problems with absences, tardies, and leaving early from work, related to her taking liberties with her work-from-home position. Plaintiff also had issues following other Humana policies regarding use of company credit cards, use of company rental cars, and disclosure of potential conflicts of interest. Initially, Plaintiff was coached by her supervisors on these issues. When these coachings did not work, Plaintiff was placed on a performance improvement plan (referred to by Humana as a Competency & Contribution Improvement Plan “CCIP”). Despite these efforts, Plaintiff continued to have attendance issues following her placement on a performance improvement plan. Because Plaintiff could not correct her attendance problems, Humana ultimately made the legitimate, non-discriminatory business decision to terminate Plaintiff’s employment. In her Petition, Plaintiff alleges that during 2015 and into 2016, she was experiencing certain events that might have qualified for protections under the Oklahoma Administrative Workers’ Compensation Act (the “Oklahoma AWCA”) or the FMLA. These arguments are an irrelevant diversion. First, the Court has dismissed Plaintiff’s Oklahoma AWCA claims, and Plaintiff’s absences for worker’s compensation treatment were not considered in the decision to terminate Plaintiff’s employment. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 8 of 38 3 Second, during her employment, Plaintiff only raised the issue of FMLA leave regarding her absences to care for one of her daughters after that daughter broker her arm. At that time, Humana’s leave administrator informed Plaintiff that she was eligible for FMLA leave and provided her all of the necessary paperwork to apply for and receive FMLA leave. Yet, Plaintiff never returned the required certification from her daughter’s doctor to substantiate that that medical care qualified as an FMLA-covered injury, even after Humana’s leave administrator extended her deadline. Further, though Plaintiff alleges that one of her supervisors told her that FMLA leave “was not an option,” this did not happen. And even if it had, it would not be enough to support an FMLA interference claim or an FMLA retaliation claim. In the end, excluding her absences for worker’s compensation treatment, Plaintiff was absent from, late to, or left early from work 22 times in a seven-month period, which clearly violated Humana’s attendance policies. None of these absences were protected leave, and Humana did not interfere with Plaintiff’s opportunity to take FMLA leave for any absence that might have qualified. The Court should enter summary judgment against Plaintiff and in favor of Humana on all of Plaintiff’s remaining claims. STATEMENT OF UNDISPUTED MATERIAL FACTS I. Humana and Its Policies 1. Humana is a medical insurance provider that, among other things, offers Medicare, individual, family, and employer group plans. (Ex. 1, Aff. J. Sandy, at ¶ 3). 2. Humana has adopted various policies called the “Humana Associate Work-Life Policies & Processes,” which govern Humana employees. (Ex. 2, Aff. N. Steverson, at ¶ 3). Among other things, these policies address attendance expectations; Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 9 of 38 4 the taking of leave, including FMLA leave; the use of company credit cards; conflict of interests; and the use of company rental cars. Id. Versions of these policies were in force at the time that Humana employed Plaintiff. Id. at ¶ 4. 3. For example, at the time of Plaintiff’s employment and termination, Humana maintained a policy regarding expectations and use of paid time off, which was entitled “Paid Time Off (PTO)—Traditional Benefit Program” (the “PTO Policy”). (Ex. 2, Aff. N. Steverson, at ¶ 5). The PTO Policy provided that “[e]xcessive use of PTO during any one period of time and/or excessive unwarranted use on unscheduled PTO can be disruptive to morale and the daily operations of Humana’s business.” (Ex. 2-1, Aff. of Nancy Steverson, PTO Policy at 1). 4. At the time of Plaintiff’s employment and termination, Humana also maintained a policy regarding employee attendance requirements, which was entitled “Attendance Expectations.” (Ex. 2, Aff. of Nancy Steverson, at ¶ 6). Among other things, the Attendance Expectations Policy informed Humana employees that “all associates are expected to be punctual and in attendance every day they are scheduled to work” and that “[r]epeated absences and tardiness, even for good reasons, may result in termination due to the need for fill availability of associates to serve customers.” (Ex. 2-2, Aff. N. Steverson, Attendance Expectations Policy at 1). 5. The Attendance Expectations Policy made clear that “[u]nscheduled absences are disruptive to the daily operations of any organization” and that both “scheduled” and “unscheduled” absences would be considered in managerial decisions, with “unscheduled” absences considered to be more serious. (Ex. 2-2, Aff. N. Steverson, Attendance Expectations Policy at 2). The Attendance Expectations Policy further Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 10 of 38 5 provided that excessive absence and tardiness “may result in the manager initiating an improvement plan” and that “[g]enerally, absence or tardiness is excessive when an associate has reached three to five absences within a six month period, been tardy two to four times within the past month or has exhibited a pattern of inappropriate absence or tardiness. The combination of absences and tardiness may be considered when determining whether absence and tardiness is excessive.” Id. 6. At the time of Plaintiff’s employment and termination, Humana also maintained a policy governing FMLA leave, which was entitled “Family and Medical Leave Act (FMLA)” (the “FMLA Policy”). (Ex. 2, Aff. N. Steverson, at ¶ 7). As permitted by the FMLA, at all times the FMLA Policy provided that “[a]ssociates requesting an FMLA leave of absence must submit a medical certification within 15 calendar days after the start of the leave.” (Ex. 2-3, Aff. N. Steverson, FMLA Policy (Jan. 14, 2015) at 4); (Ex. 2-4, Aff. N. Steverson, FMLA Policy (Feb. 2, 2016) at 4). The FMLA Policy also made clear that an “associate may be subject to disciplinary action or termination or employment if he/she does not submit the completed medical certification within 15 calendar days after the start of his/her FMLA leave of absence.” Id. II. Plaintiff’s Employment at Humana 7. On or about July 15, 2010, Plaintiff began working at Humana’s Tulsa, Oklahoma office as a contract employee. (Ex. 3, Plaintiff Dep., at 21:7–8). 8. On March 13, 2011, Humana hired Plaintiff as a fulltime employee in a Medical Record Retrieval Specialist position with the Medicare Risk Adjustment department at Humana’s Tulsa, Oklahoma office. (Ex. 3, Plaintiff Dep., at 21:7–8). Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 11 of 38 6 9. The next day, as part of her on-boarding, Plaintiff signed an acknowledgement that she “commit[ted] to accessing, and becoming familiar with each of the Humana Associate Work-Life Policies & Processes … within [her] first week of employment” and “agree[d] to abide by the Humana Associate Work-Life Policies & Processes.” (Ex. 4, Plaintiff’s Depo., Ex. 1). 10. Throughout her employment Plaintiff had access to the Humana Associate Work-Life Policies & Processes through the homepage on her Humana laptop, and Plaintiff, from time to time, did in fact access and review these policies. (Ex. 2, Aff. .N. Steverson, at ¶ 9); (Ex. 3, Plaintiff’s Depo., at 80:14–81:7). 11. As a Medical Record Retrieval Specialist, Plaintiff’s job duties included reviewing and retrieving medical records from healthcare providers both online and in person at providers’ offices. See (Ex. 3, Plaintiff’s Depo., at 53:6–55:7). 12. Humana requires a Medical Retrieval Specialist to be punctual in performing her job duties to maintain positive working relationships with healthcare providers and limit disruptions to healthcare providers’ operations. (Ex. 3, Plaintiff’s Depo., at 62:20–63:24). 13. In August 2014, a Medical Record Retrieval Specialist position opened for the Oklahoma City metro territory. (Ex. 3, Plaintiff’s Depo., at 22:4–14). Plaintiff transferred from her position in Tulsa, Oklahoma to this position. Id. In this new position, Plaintiff worked from home instead of at an office. Id. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 12 of 38 7 III. Plaintiff’s Workplace Issues 14. In 2015, Plaintiff began to have issues with attendance, being tardy to work and appointments, and leaving work early that would ultimately violate Humana’s Attendance Expectation Policy. (Ex. 5, Plaintiff’s Depo., Ex. 19). 15. Around the same time, Plaintiff also had issues following Humana’s credit card, rental car, and conflict of interest policies. (Ex. 5, Plaintiff’s Depo., Ex. 19). 16. On February 17, 2015, Plaintiff was coached by her then supervisor, Sandy Dorrell, for improper use of Humana’s internal instant messaging program. (Ex. 6, February 17, 2015 email). 17. On November 13, 2015, Plaintiff was coached by her then supervisor, Jill Duhr, for irregularities in her use of company rental cars and credit cards and for failing to make timely contact with her jobsites. (Ex. 7, November 18, 2015 email). 18. On January 25, 2016, Plaintiff was again coached by her supervisor, Jessica Sandy, regarding a variety of topics. (Ex. 8, January 27, 2016 email). Among other things, Plaintiff failed to disclose a potential conflict of interest. Id. At the time, Plaintiff was also coached for taking 19 paid-time-off absences in the preceding four months, which was excessive under Humana’s policies. Id. 19. On February 19, 2016, Plaintiff was placed on a Competency & Contribution Improvement Plan (“CCIP”), primarily for her excessive unprotected absences. (Ex. 5, Plaintiff’s Depo., Ex. 19). The CCIP identified at least 20 days in the preceding seven months on which Plaintiff was absent from, tardy to, or left early from work. Id. at 1. Importantly, none of the absences identified in the improvement plan were for workers’ compensation injury appointments. See (Ex. 9, Email from J. Sandy to Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 13 of 38 8 Plaintiff (Feb. 23, 2016), at Boyd Bates 60). Further, the absences identified did not include a vacation Plaintiff had taken over the Christmas holidays. (Ex 3, Plaintiff’s Depo., at 202:11–13). 20. Instead, the CCIP identified the 20 days within the prior six months on which Plaintiff was absent from, tardy to, or left early from work because she overslept, was “ill,” took PTO for a holiday, misjudged traffic, or was attending an unprotected appointment. (Ex. 10, Plaintiff’s Depo., Ex. 18, at 20); (Ex. 5, Plaintiff’s Depo., Ex. 19); (Ex. 11, Plaintiff’s Resp. Disc., at 13–15); (Ex. 12, Plaintiff’s Supp. Disc. Resp., at 8–9). None of these absences were for protected FMLA leave. (Ex. 3, Plaintiff’s Depo., at 205:5–8). 21. Plaintiff was informed in the CCIP that “[n]o additional instances of absence (full or partial days), including tardiness, may occur prior to May 19, 2016.” (Ex. 5, Plaintiff’s Depo., Ex. 19, at 2). Plaintiff was advised in the CCIP that “[i]f at any time, during a six-month period, additional absences have occurred and [her] total instances of absence are considered excessive, [her] employment may be terminated.” Id. 22. Nevertheless, instead of following the expectations set out in the CCIP, Plaintiff was tardy to work twice in the very next week after she was placed on the CCIP. (Ex. 13, Plaintiff’s Depo., Ex. 16, at 1). On February 25, 2016, Plaintiff was admittedly tardy to an appointment with her then supervisor, Jessica Sandy, explaining that she was caught in traffic. (Ex. 12, Plaintiff’s Supp. Disc. Resp., at 9). The next day, February 26, 2016, she was late reporting to work for the day, explaining that she must have overslept. (Ex. 12, Plaintiff’s Supp. Disc. Resp., at 10). See (Ex. 3, Plaintiff’s Depo., at 192:17– 193:5). Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 14 of 38 9 23. Around the same time, on February 24, 2016, Plaintiff appealed her CCIP to Humana’s human resources department. See (Ex. 14, Plaintiff’s Depo., Ex. 17). 24. On March 1, 2016, Humana’s human resources department responded to Plaintiff regarding her appeal. (Ex. 14, Plaintiff’s Depo., Ex. 17). After reviewing Plaintiff’s appeal, Humana determined that the “CCIP was delivered in accordance with Humana’s Attendance Expectations” and that “the decision to deliver the CCIP was fair, appropriate, and warrant[ed] no further consideration.” Id. 25. On March 2, 2016, Humana terminated Plaintiff’s employment for her failure to follow the attendance expectations established in the CCIP. (Ex. 13, Plaintiff’s Depo., Ex. 16). IV. Plaintiff’s Absences Were Not FMLA-protected 26. During her employment, Plaintiff did not follow Humana’s policies regarding FMLA leave for any of the absences, tardies, or early departures from work, including all of those identified in the CCIP. (Ex. 2, Affidavit of N. Steverson, at ¶ 7); (Ex. 13, Plaintiff’s Depo., Ex. 16); (Ex. 5, Plaintiff’s Depo., Ex. 19). 27. Plaintiff alleges that her absences identified in the CCIP related to her daughter’s broken arm could have qualified for FMLA leave. (Pet. [Doc. 1-2], at ¶ 21). Nevertheless, even though Humana provided to Plaintiff all the proper paperwork to apply for FMLA leave, Plaintiff failed to follow Humana’s medical-certification requirements. (Ex. 2, Aff. N. Steverson, at ¶ 10); (Ex 3, Plaintiff’s Depo., at 158:6–12). 28. Specifically, Plaintiff alleges that on January 12, 2016, her daughter broke her arm. (Pet. [Doc. 1-2], at ¶ 21). Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 15 of 38 10 29. On or about January 14, 2016, Plaintiff notified Humana that she would be absent from work because of her daughter’s broken arm. (Ex. 3, Plaintiff’s Depo., at 165:12–25). 30. On January 21 and 22, 2016, Plaintiff exhausted her remaining PTO staying home with her daughter while she recovered from surgery on her arm. (Ex. 9, Email from J. Sandy to Plaintiff (Feb. 23, 2016), at Boyd Bates 60). 31. In all, Plaintiff was absent from work on January 13, 19, 21, 22, and 27, 2016, allegedly to take her daughter to certain medical appointments related to her daughter’s broken arm or to watch her daughter while she was held out of school. (Ex. 5, Plaintiff’s Depo., Ex. 19, at 2). 32. On January 20, 2016, Plaintiff contacted Humana’s human resources department regarding FMLA leave for her daughter’s broken arm. (Ex. 3, Plaintiff’s Depo., at 171:16–172:15); (Ex. 15, Plaintiff’s Depo., Ex. 15). Humana directed Plaintiff to UNUM, Humana’s leave administrator, and gave Plaintiff general information regarding FMLA leave, all in accordance with Humana’s FMLA policies. Id. 33. On January 21, 2016, UNUM, notified Plaintiff that she was eligible for FMLA leave for her daughter’s broken arm and that she was required to submit medical certification on or before February 4, 2016, or her leave could be denied. (Ex. 16. Plaintiff’s Depo., Ex. 12, at 1). 34. Plaintiff failed to provide the required medical certification by February 4, 2016, and on February 8, 2016, UNUM wrote to Plaintiff, extending her medical- certification deadline to February 11, 2016. (Ex. 17. Plaintiff’s Depo., Ex. 13, at 2). Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 16 of 38 11 35. Plaintiff failed to provide the required medical certification by February 11, 2016, and on February 15, 2016, UNUM denied Plaintiff’s FMLA leave for Plaintiff’s failure to substantiate the leave as FMLA-protected. (Ex. 18, Plaintiff’s Depo., Ex. 14). 36. Plaintiff actually received all communications from UNUM at her home address. (Ex. 3, Plaintiff’s Depo., at 152:15–18, 155:10–11, 157:4–6). And, at this time, Plaintiff was in communication with Humana’s HR department, which advised her of her right to apply for FMLA leave and the necessary steps to do so. (Ex. 3, Plaintiff’s Depo., at 170:6–172:15). 37. After receiving the FMLA medical certification documents, Plaintiff delivered the FMLA forms to her daughter’s doctor (which the doctor could have directly faxed to UNUM), with the intention and understanding that he would complete and return the form to UNUM if her daughter’s condition qualified for FMLA protection. (Ex. 3, Plaintiff’s Depo., at 180:5–10, 183:6–8). 38. Even though Humana explicitly instructed Plaintiff to apply for FMLA leave for any reason she thought might qualify, other than for her daughter’s broken arm, Plaintiff never asked for FMLA leave or notified Humana of a need for FMLA leave for any absence or medical issue. (Ex. 3, Plaintiff’s Depo., at 205:5–8). See (Ex. 9, Email from J. Sandy to Plaintiff (Feb. 23, 2016), at Boyd Bates 60) 39. Even if Plaintiff had provided all required certifications and otherwise qualified for FMLA leave for her daughter’s broken arm, Plaintiff still would have been absent from, been tardy to, or left early from work at least 17 times in a seven-month period for unprotected reasons. (Ex. 10, Plaintiff’s Depo., Ex. 18, at 20); (Ex. 13, Plaintiff’s Depo., Ex. 16). Even if Plaintiff had received FMLA for all of the events that Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 17 of 38 12 she alleges qualified for FMLA, Plaintiff still would have been absent from, been tardy to, or left early from work at least 15 times in a seven-month period for unprotected reasons. Id. This would still be a gross violation of Humana’s attendance policies. (Ex. 2- 2, Aff. N. Steverson, Attendance Expectations Policy). STANDARD OF REVIEW Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment, identifying each claim or defense . . . on which summary judgment is sought.” The Court should grant such a motion “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. “A fact is ‘material’ if under the substantive law it could have an effect on the outcome of the lawsuit.” Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). “An issue is ‘genuine’ if a rational juror could find in favor of the nonmoving party on the evidence presented.” Id. The movant initially bears the burden of “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met this burden, the non-movant “may not rest upon the mere allegations or denials of the adverse party’s pleading,” but rather “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). Plaintiff was terminated, because of her excessive tardiness, absences, and early departures from work. Plaintiff cannot genuinely dispute this fact, and the Court should Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 18 of 38 13 enter summary judgment against Plaintiff and in favor of Humana on all of Plaintiff’s claims. ARGUMENT & AUTHORITIES At this stage, the only surviving claims in Plaintiff’s Petition [Doc. 1-2] are for FMLA interference and FMLA retaliation. (Pet. [Doc. 1-2], at ¶ 37). See (Order [Doc. 16], at 5) (dismissing Plaintiff’s Oklahoma AWCA retaliation claim and “intentional tort” claim). Specifically, in her Petition, Plaintiff alleges that her termination was “a violation of the FMLA whether viewed as an interference with [her] FMLA rights or retaliation for her attempts to exercise those rights.” (Pet. [Doc. 1-2], at ¶ 37). Nevertheless, Plaintiff cannot establish the elements of either FMLA interference or FMLA retaliation, and the Court should enter summary judgment against Plaintiff and in favor of Humana. The Court should enter summary judgment in favor of Humana and against Plaintiff on Plaintiff’s FMLA interference claim, because Plaintiff cannot establish that she was entitled to FMLA leave, that some adverse action by Humana interfered with her right to take FMLA leave, or that Humana’s actions were related to the exercise of her FMLA rights. The Court should enter summary judgment in favor of Humana and against Plaintiff on Plaintiff’s FMLA retaliation claim, because she did not engage in a protected activity and because Plaintiff cannot establish that Humana’s legitimate, non- discriminatory reasons for terminating her were pretext for discrimination. I. Plaintiff Cannot Establish an FMLA Interference Claim. As explained next, Plaintiff’s FMLA interference claim must fail as a matter of law. Plaintiff did not submit the required medical certification for FMLA leave or provide proper notice (making her ineligible). Humana took no adverse action that actually Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 19 of 38 14 interfered with Plaintiff’s right to take FMLA leave, and Humana’s decision to terminate Plaintiff’s employment was based on Plaintiff’s excessive and continuing unprotected tardies, absences, and early departures from work. Under the FMLA, an employee has well-defined and limited rights. An employer must allow an eligible employee 12 weeks of leave for an FMLA-qualifying reason and must reinstate the employee to her former position or to an equivalent one. See 29 U.S.C. §§ 2612(a)(1), 2614(a)(1). But these rights are contingent on an employee’s submission of the required medical certification to support the request for FMLA leave. See, e.g., 29 C.F.R. § 825.312(b). Without the certification, an employer is under no legal obligation to grant an employee’s request for FMLA leave. See O’Reilley v. Rutgers, 2006 WL 141895, at 4 (D.N.J. Jan. 19, 2006) (granting summary judgment for employer on FMLA interference claim when employee refused to provide medical certification). To make a prima facie case for FMLA interference, a plaintiff must establish “(1) that [she] was entitled to FMLA leave, (2) that some adverse action by the employer interfered with [her] right to take FMLA leave, and (3) that the employer’s action was related to the exercise or attempted exercise of [her] FMLA rights.” Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005). Notably, “[i]n order to satisfy the second element of an interference claim, the employee must show that she was prevented from taking the full 12 weeks of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (emphasis added). If an employee is able to prove the first two elements of an FMLA interference claim, “the burden shifts to the employer to prove that the adverse decision was ‘[un]related to the exercise or Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 20 of 38 15 attempted exercise of [the employee’s] FMLA rights.’” Gaige v. SAIA Motor Freight Line, LLC, 672 F. App’x 787, 790 (10th Cir. 2016) (quoting Dalpiaz v. Carbon Cty., 760 F.3d 1126, 1132 (10th Cir. 2014)). In this case, Plaintiff cannot establish the first two elements of an FMLA interference claim. Even if she could, Humana’s decision to terminate her was wholly unrelated to her uncompleted attempt to exercise of FMLA leave. A. Plaintiff cannot establish the first prima facie element that she was entitled to FMLA leave. Plaintiff’s FMLA interference claim must fail, because she was not eligible for FMLA leave for any of the attendance violations that were the basis of the termination decision. As is briefed next, Plaintiff’s eligibility for FMLA protection for the absences related to her daughter’s broken arm was not established because she never returned the medical certification for such. As for all of the other absences, Plaintiff did not request leave in compliance with the FMLA and its regulations. Thus, Plaintiff cannot establish the first prima facie element of eligibility for FMLA leave. i. Plaintiff failed to provide the required medical certification so she was not eligible for FMLA leave regarding her daughter’s broken arm. Plaintiff was not eligible for FMLA for her daughter’s broken arm, because Plaintiff failed to follow Humana’s instructions to submit medical certifications. The FMLA regulations are clear that an employer may require that an employee’s FMLA leave “be supported by a certification issued by the [employee’s] health care provider … .” 29 C.F.R. § 825.305(a). An employee who does not submit required FMLA certification is not eligible for FMLA leave. See, e.g., Allender v. Raytheon Aircraft Co., Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 21 of 38 16 339 F.Supp.2d 1196, 1205 (D.Kan.2004) (holding that “[employee] cannot show that she was entitled to FMLA leave because she cannot show that she gave the required notice and certification to [employer]”). Robinson v. Farmers Servs. L.L.C., No. 10-CV02244- JTM, 2010 WL 4067180, at *3 (D. Kan. Oct. 15, 2010). An employee requesting FMLA leave “must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification.” 29 C.F.R. § 825.305(b). “If the employee … fails to provide any certification, the employer may deny the taking of FMLA leave … .” 29 C.F.R. § 825.305(c). In the case of unforeseeable leave (which includes events like Plaintiff’s daughter’s broken arm), leave may be denied for failure to provide certification as follows: In the case of unforeseeable leave, an employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 calendar days from receipt of the request for certification unless not practicable due to extenuating circumstances. For example, in the case of a medical emergency, it may not be practicable for an employee to provide the required certification within 15 calendar days. Absent such extenuating circumstances, if the employee fails to timely return the certification, the employer can deny FMLA protections for the leave following the expiration of the 15–day time period until a sufficient certification is provided. If the employee never produces the certification, the leave is not FMLA leave. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 22 of 38 17 29 C.F.R. § 825.313(b) (emphasis added). In the case of unforeseen leave, “in most cases” an employer who requires medical certification “should” request the certification “within five business days after the leave commences.” 29 C.F.R. § 825.305(b). In this case, leading up to the time her daughter broke her arm, Plaintiff exhausted almost all of her paid time off. See (SUMF, at ¶ 30). On or about January 14, 2016, Plaintiff notified Humana that her daughter had broken her arm, which ultimately required an emergency doctor’s visit, surgery, a cast-fitting, and time away from school. (SUMF, at ¶ 29). In 2016, Plaintiff was absent from work to care for her daughter on January 13, 19, 21, 22, and 27, and she exhausted the last of her paid time off staying home with her daughter on January 22, 2016. (SUMF, at ¶ 31) On January 21, 2016, UNUM, Humana’s leave administrator, notified Plaintiff that she was eligible for FMLA leave for her daughter’s broken arm and that she was required to submit medical certification on or before February 4, 2016, or her leave could be denied. (SUMF, at ¶ 33). Plaintiff failed to provide the required medical certification, and on February 8, 2016, UNUM wrote to Plaintiff, extending her medical-certification deadline to February 11, 2016. (SUMF, at ¶ 34). On February 15, 2016, UNUM denied Plaintiff’s FMLA leave after Plaintiff again failed to submit the required medical certification. (SUMF, at ¶ 35). Throughout this time, Plaintiff was in contact with Humana’s human resources department and UNUM’s leave administrators. (SUMF, at ¶ 36). From the above, Humana requested that Plaintiff provide medical certification before Plaintiff began her FMLA leave for her daughter’s broken arm; therefore, Humana Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 23 of 38 18 properly requested medical certification from Boyd. (SUMF, at ¶ 33)1 Humana was entitled to deny Plaintiff’s FMLA leave beginning February 4, 2016, and did so beginning February 11, 2016. (SUMF, at ¶¶ 34–35). Plaintiff did not provide the required medical certifications. Under applicable FMLA regulations, Plaintiff was not eligible for FMLA leave for her daughter’s appointments, because she failed to provide the required medical certification. ii. Plaintiff did not provide Humana any notice for any other absence that would implicate FMLA eligibility. In her Petition, Plaintiff alleges that she and her daughter were experiencing mental health events. (Pet. [Doc. 1-2], at ¶¶ 15, 17). Nevertheless, Plaintiff’s and Plaintiff’s daughter’s mental-health conditions did not qualify for FMLA leave, because Plaintiff did not provide notice to Humana that she needed FMLA leave. When the need for FMLA leave is not foreseeable, as in cases such as Plaintiff’s daughter’s mental-health episode, “an employee must provide notice to the employer as soon as practicable … .” 29 C.F.R. § 825.303(a). In cases where leave is foreseeable, perhaps like Plaintiff’s own mental-health condition, an employee “must provide the employer at least 30 days advance notice before FMLA leave is to begin … .” 29 CFR § 825.302(a). In either case, an employee must provide an employer “sufficient” notice to make the employer aware that the employee needs FMLA leave. 29 C.F.R. § 825.302(c); 29 § CFR 825.303(b). “An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially FMLA-qualifying.” Id. 1 On or about January 21, 2016, Humana requested Boyd provide medical certification regarding her daughter’s broken arm, but Boyd did not exhaust her non-FMLA paid time off until January 22. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 24 of 38 19 “Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.” Id. Failure to follow an employer’s “usual and customary notice and procedural requirements” is also ground to deny FMLA leave. 29 CFR § 825.302(d); 29 CFR § 825.303(c). Plaintiff did not provide Humana any notice regarding her daughter’s mental- health episode or her own mental-health condition. Regarding Plaintiff’s daughter’s mental-health condition, Plaintiff only provided Humana notice of one single outpatient treatment. (Pet. [Doc. 1-2], at ¶ 15). A heath condition that requires only one doctor’s visit is likely not a “serious health condition” that qualifies for FMLA protections, because it does not require inpatient treatment or continuing treatment. 29 U.S.C. § 2611(11). Moreover, relevant law holds that mere notice of a doctor’s appointment is not sufficient to extend a duty to an employer to inquire further about the employee’s or the employee’s family member’s health condition, let alone extend FMLA protections. See, e.g., Dey v. Marshall, No. 01 C 9810, 2002 WL 773989, at *5 (N.D. Ill. Apr. 29, 2002) (informing employer that employee was “being treated by a health care provider” was insufficient to provide notice of need for FMLA leave); Miller v. Venator Group, Inc., No. 00 C 0454, 2000 WL 648186, *3 (S.D.N.Y. May 18, 2000)(granting motion to dismiss where employee merely alleged she communicated that she had “eye problems”); Carter v. Rental Uniform Serv. of Culpeper, Inc., 977 F.Supp. 753, 761 (W.D.Va.1997) (employee’s note from doctor insufficient notice of FMLA leave as it recommended only two days off of work). Therefore, Plaintiff did not give sufficient notice regarding her daughter’s mental health to be eligible for FMLA protections. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 25 of 38 20 Plaintiff’s own mental-health condition was similarly not eligible for FMLA protections. Plaintiff has alleged that, in November 2015, she “sought the care and treatment of a doctor” for “depression, anxiety, and persistent leukocytosis.” (Pet. [Doc. 1-2], at ¶ 17). But, in her CCIP, only one of her absences in November 2015 or later (i.e., January 29, 2016) is identified as for a doctor’s appointment. See (SUMF, at ¶ 23). There are no allegations or evidence that Plaintiff’s mental-health condition required periodic visits or extended over a period of time. And, even if Plaintiff had received ongoing treatment for her mental-health condition, she was still not eligible for FMLA protections. Plaintiff never notified Humana that she might need FMLA leave for a mental-health condition. (SUMF, at ¶ 38). B. Plaintiff cannot establish the second prima facie element that Humana took adverse action to interfere with her right to take FMLA leave. Even if any of Plaintiff’s medical events were eligible for FMLA leave, Plaintiff still could not make a prima facie case for FMLA interference, because Humana took no adverse action against Plaintiff. As mentioned above, to establish an “adverse action” an employee “must show that she was prevented from taking the full 12 weeks of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (emphasis added). In other words, “when an employer’s actions provide a strong disincentive against an employee taking FMLA leave, the employer violates the FMLA. McKinzie v. Sprint/United Mgmt. Co., No. CIV.A.03-2348-GTV, 2004 WL 2634444, at *9 (D. Kan. Nov. 16, 2004) (emphasis added). Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 26 of 38 21 Further, to avoid dismissal of her FMLA interference claim, Plaintiff must establish not only interference, but also that she was prejudiced by that interference. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (“[E]ven if one proves interference under § 2615, § 2617 provides no relief unless the employee has been prejudiced by the violation … .”). Courts have soundly rejected any form of liability for technical violations that resulted in no prejudice to the employee. See Castellano v. Charter Communs., 2013 WL 6086050, at *11 (W.D. Wash. Nov. 19, 2013) (finding lost paperwork does not show sufficient interference with FMLA rights where leave was not denied); see also Franzen v. Ellis Corp., 543 F.3d 420, 426 (7th Cir. 2008) (“[S]ection 2617 provides no relief unless the plaintiff can prove that he was prejudiced by the violation.”); Geromanos v. Columbia Univ., 322 F. Supp. 2d 420 (S.D.N.Y. 2004) (finding that plaintiff’s FMLA claim based on her employer’s failure to timely inform her that her time off work was designated as FMLA leave was precluded because she used the full twelve weeks of leave to which she was entitled). In this case, Plaintiff has alleged only that one of her superiors made an offhand remark that FMLA leave “was not an option” for Plaintiff and that Humana ultimately denied Plaintiff FMLA leave after Plaintiff failed to provide her required FMLA certification. Humana vehemently denies that any Humana employee told Plaintiff that FMLA leave was not an option for her. More importantly, it is indisputable that Humana encouraged Plaintiff to apply for FMLA leave, that Plaintiff actually began the FMLA leave application process, that Humana informed Plaintiff that she was eligible for FMLA leave pending her submission of the required medical certifications, and that Humana extended Plaintiff’s deadline to submit medical certifications when Plaintiff missed her Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 27 of 38 22 initial deadline. (SUMF, at ¶¶ 32–37). Humana only denied Plaintiff FMLA leave after Plaintiff failed to meet her extended deadline to submit her medical certification. (SUMF, at ¶ 35). Such actions are as insufficient to support an FMLA interference claim. For example, in McKinzie v. Sprint/United Mgmt. Co., No. CIV.A.03-2348-GTV, 2004 WL 2634444, at *10 (D. Kan. Nov. 16, 2004), the court held that sarcastic and derogatory remarks from a supervisor regarding an employee’s FMLA leave did not constitute interference, where the employee was allowed to pursue FMLA leave. Further, cases from other circuits have held that stray comments and initial denials of leave did not constitute FMLA interference, where an employee was not actually discouraged from or ultimately denied taking leave. See, e.g., Seguin v. Marion Cty. Health Dep’t, No. 5:13- CV-96-OC-10PRL, 2014 WL 3955162, at *10 (M.D. Fla. Aug. 13, 2014). In this case, even if Plaintiff’s superior did comment on Plaintiff’s leave (which Humana denies), Plaintiff nevertheless contacted Humana’s FMLA leave administrator, was told she was eligible for leave, and was only denied leave after she failed to provide medical certifications. Humana did not interfere with Plaintiff’s medical leave, because Humana took no adverse action against Plaintiff that provided a strong disincentive against Plaintiff’s taking FMLA leave. C. Because any adverse action taken against Plaintiff was unrelated to her taking FMLA leave, Plaintiff cannot establish an FMLA interference claim. Finally, even if Plaintiff could establish the first two elements of a prima facie FMLA interference claim, the undisputed facts show that Plaintiff was terminated for Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 28 of 38 23 reasons unrelated to FMLA leave. Though it is the employer’s obligation to show that an adverse action was unrelated to FMLA leave, “the employer is not required to show that the adverse employment decision and the employee’s FMLA request are completely and entirely unrelated.” Dalpiaz v. Carbon Cty., Utah, 760 F.3d 1126, 1132 (10th Cir. 2014). And, an “indirect link is insufficient to support a theory of interference.” Id. at 1134. “For instance, if an employee’s work-performance problems are related to the same illness that gave rise to FMLA leave, the employee may still be terminated based on his work- performance problems, regardless of the indirect causal link between the FMLA leave and the adverse decision.” Id. (citing McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1108 (10th Cir.2002)). In this case, the undisputed facts are that Plaintiff was terminated after she failed to meet the requirements of her CCIP. (SUMF, at ¶ 22). Specifically, she was terminated for being tardy twice in the very next week after her CCIP was delivered to her. (SUMF, at ¶ 22). One of these tardies was allegedly caused by traffic problems, and the other was reported as Plaintiff having overslept. (SUMF, at ¶ 22). Neither tardy was for an FMLA- related reason. See id. Even if Plaintiff’s work-performance problems were in part related to an FMLA-qualifying event, the ultimate reason for her termination (i.e., the two tardies following her CCIP) was completely unrelated to FMLA leave. Plaintiff cannot establish a prima facie case for FMLA interference. The Court should enter judgment against Plaintiff and in favor of Humana. II. Plaintiff Cannot Establish an FMLA Retaliation Claim. Just like her FMLA interference claim, Plaintiff’s FMLA retaliation claim must also fail. First, Plaintiff cannot set out a prima facie claim for FMLA retaliation, because Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 29 of 38 24 she did not engage in any protected activity. Plaintiff merely started—but did not complete—the process to obtain FMLA leave. Second, even if Plaintiff could establish a prima facie claim for FMLA retaliation, she could never establish that Humana’s legitimate, non-discriminatory reasons for terminating her (namely, Plaintiff’s problems with excessive unprotected absences, tardies, and early departures from work), were pretext for discrimination. FMLA retaliation claims follow the familiar McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006) (applying the McDonnell Douglas framework to FMLA retaliation claim). Under this framework, Plaintiff bears the initial burden of proving a prima facie case of retaliation. See Metzler, 464 F.3d at 1170. To establish a prima facie case of FMLA retaliation, Plaintiff must show (1) that she engaged in a protected activity, (2) that Humana took action that a reasonable employee would have found materially adverse, and (3) that there exists a causal connection between the protected activity and the adverse action. Id. at 1171. The third prong requires Plaintiff to show that Humana acted with “bad intent” or a “retaliatory motive.” Id. If Plaintiff can make a prima facie case, the burden shifts to Humana to demonstrate that the adverse employment action was taken for a legitimate, non- discriminatory reason. Id. at 1170. If Humana does this, Plaintiff then bears the ultimate burden of proving by a preponderance of the evidence that the legitimate reasons Humana offered were not the true reasons, but a pretext for adverse action based on Plaintiff’s use of FMLA leave. Id. See also Gunnell v. Utah Valley State Coll., 152 F.3d Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 30 of 38 25 1253, 1263 (10th Cir. 1998) (explaining that the plaintiff has the ultimate burden of demonstrating that the challenged employment decision was the result of intentional retaliation). The Court should enter summary judgment in favor of Humana and against Plaintiff on Plaintiff’s FMLA retaliation claim, because Plaintiff cannot make a prima facie case and because Plaintiff could never establish that Humana’s reasons for terminating Plaintiff were pretext for discrimination. A. Because Plaintiff did not engage in any protected activity, Plaintiff cannot state a claim for FMLA retaliation. To make a prima facie case for FMLA retaliation, an employee must show that “(1) she engaged in a protected activity; (2) [her employer] took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). Under case law, an employee has engaged in a “protected activity” only when she is actually entitled to FMLA protections. Courts have routinely held that where a plaintiff fails to provide a required medical certification, the plaintiff has not engaged in a protected activity sufficient to meet the first element of a prima facie FMLA retaliation claim. See, e.g., Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 579 (6th Cir. 2007) (affirming summary judgment where physician certification was not sufficient to establish plaintiff had serious health condition); Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir. 2000); McGuiness v. East W. Indus., 857 F. Supp. 2d 259 (E.D.N.Y 2012) (granting summary judgment on retaliation claim where intermittent FMLA leave had expired after 12 months and employee did not recertify despite plaintiff’s belief that leave was “on going”); Baldwin-Love v. Electronic Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 31 of 38 26 Data Sys. Corp., 307 F. Supp. 2d 1222, 1235 (M.D. Ala. 2004) (granting summary judgment for employer on interference and retaliation claims because plaintiff failed to comply with FMLA certification requirements). Courts have also routinely held that where a plaintiff fails to give required notice, the plaintiff has not engaged in a protected activity sufficient to meet the first element of a prima facie FMLA retaliation claim. See, e.g., Carter v. Arbors E., Inc., No. 2:09-CV- 968, 2011 WL 1641153, at *10 (S.D. Ohio May 2, 2011) (holding plaintiff cannot establish prima facie case when she did not give notice of request for FMLA until one week after she was notified that she would be terminated); Brown v. Pension Bds., 488 F. Supp. 2d 395 , 410 (S.D.N.Y. 2007) (holding plaintiff who failed to provide required notice had no FMLA rights, as required for a retaliation claim); Goodman v. Bestbuy, Inc., No. CIV 05-1657 DSD/JJG, 2006 WL 3486990, at *5 (D. Minn. Dec. 4, 2006) (holding plaintiff’s inability to establish that he had provided sufficient notice to defendant of his need for FMLA leave defeated his retaliation claim); Rocky v. Columbia Lawnwood Reg’l Med. Ctr., 54 F. Supp. 2d 1159, 1170 (S.D. Fla. 1999). As discussed above, Plaintiff cannot establish that she engaged in any protected activity, because she was not entitled to FMLA leave for any of her or her daughter’s medical conditions. Plaintiff did not provide medical certifications regarding her daughter’s broken arm. (SUMF, at ¶ 35). Plaintiff did not provide sufficient notice regarding her or her daughter’s mental-health conditions to qualify for FMLA. (SUMF, at ¶ 38). She cannot establish the first element of a prima facie claim for FMLA retaliation, and the Court should enter summary judgment in favor of Humana and against Plaintiff on Plaintiff’s FMLA retaliation claim. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 32 of 38 27 B. Plaintiff cannot prove that Humana’s legitimate, non-discriminatory reasons for terminating her were pretext for discrimination. For the sake of argument, even if Plaintiff could establish a prima facie case for FMLA retaliation, it would then be Humana’s burden to offer legitimate, non-discriminatory reasons for Plaintiff’s termination. Metzler, 464 F.3d at 1170. Humana easily meets this burden. The undisputed facts show that Plaintiff was terminated for admittedly being tardy to work two times in the week following her placement on her CCIP, which required that she not be absent from or tardy to work for the next three months. (SUMF, at ¶ 21). Ultimately, the burden would revert to Plaintiff to prove by a preponderance of the evidence that Humana’s legitimate reasons for its actions were pretext for unlawful discrimination. See Metzler, 464 F.3d at 1170. Pretext for employment discrimination can be shown “by demonstrating such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reason.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007) (internal citation omitted). To avoid summary judgment, a party must produce “specific facts showing that there remains a genuine issue for trial” and evidence “significantly probative as to any [material] fact claimed to be disputed.” Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir. 1988). Thus, a plaintiff’s “mere conjecture” that her employer’s explanation for the adverse employment action is pretextual “is an insufficient basis for denial of summary judgment.” Id. at 772. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 33 of 38 28 In this case, Plaintiff has no evidence that she was terminated for anything other than legitimate, non-discriminatory reasons. The undisputed material facts show that Plaintiff had recurring issues following Humana’s policies, most notably Humana’s attendance requirements. Plaintiff was repeatedly counseled, placed on a performance improvement plan, and ultimately terminated, when she could not correct her habit of being absent from or tardy to work for unprotected reasons. At most, Plaintiff has the disputed allegation that one of her superiors said that FMLA leave was not an option for her and that fact that she was terminated more than a month after initially contacting Humana’s FMLA administrator regarding possible FMLA leave. But, “[t]o raise a fact issue of pretext, [a plaintiff] must … present evidence of temporal proximity plus circumstantial evidence of retaliatory motive.” Metzler, 464 F.3d at 1172. And, a stray remark merely skeptical of Plaintiff’s FMLA eligibility, without more, is not sufficient for a reasonable jury to find pretext. See, e.g., Hartman v. Dow Chem. Co., 657 F. App’x 448 (6th Cir. 2016) (e-mail that made no mention of FMLA leave but set forth examples of plaintiff’s apparent misuse of company time, and ended with the question, “Do we have enough to take action? Please?” along with alleged comments by a supervisor that he was skeptical of plaintiff’s need for FMLA leave but who accepted leave request after receiving doctor’s certification, was insufficient to establish pretext); Thomas v. Dolgencorp, LLC, 645 F. App’x 948 (11th Cir. 2015) (supervisor’s alleged comments that plaintiff’s “personal situations” had affected her performance, that she could not “save” plaintiff’s job, and her alleged attempts to “dig up” things about plaintiff were, at best, stray remarks that did not create a material issue of fact concerning pretext).This is especially so, given that Humana actually provided Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 34 of 38 29 Plaintiff all the required documents to apply for FMLA leave and informed her that she was eligible for FMLA leave. (SUMF, at ¶¶ 32–37). Finally, even if Plaintiff had been entitled to FMLA leave for all of the absences she alleges might have qualified, she still would have violated Humana’s attendance policies. Specifically, Plaintiff’s CCIP identified 15 times that Plaintiff was absent from, tardy to, or left early from work that were unrelated to her daughter’s broken arm, her other daughter’s mental health incident, or her own mental health issues. (SUMF, at ¶ 39). Humana’s attendance policy, which Plaintiff reviewed and had access to, provided that “three to five absences within a six month period, be[ing]tardy two to four times within the past month or … exhibit[ing] a pattern of inappropriate absence or tardiness” was prohibited and grounds for termination. (SUMF, at ¶ 5). Even if Plaintiff had received all the FMLA leave that she incorrectly alleges she was entitled to, Plaintiff still would have violated Humana’s attendance policy, and she was ultimately fired for being tardy to work twice in the week following the implementation of her CCIP for reasons that were totally unrelated to any medical or otherwise protected issue. Because Plaintiff cannot possibly establish pretext for discrimination, the Court should enter summary judgment against Plaintiff and in favor of Humana on Plaintiff’s FMLA retaliation claim. CONCLUSION Plaintiff was fired because she was absent from, late to, or left early from work 22 times in a seven-month period. The last two of these infractions occurred the week after she was warned, in writing, that any further absences or tardies for the next three Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 35 of 38 30 months would result in disciplinary action, up to and including termination from employment. None of these absences were protected by FMLA coverage. Plaintiff’s employment with Humana was terminated for the legitimate, non-discriminatory reason of these excessive unprotected absences, tardies, and early departures from work. Humana requests that the Court enter summary judgment in favor of Humana and against Plaintiff on all of Plaintiff’s remaining claims. Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 36 of 38 31 Respectfully submitted, /s/ Victor F. Albert Victor F. Albert, OBA #12069 Brandon D. Kemp, OBA # 31611 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. victor.albert@ogletree.com brandon.kemp@ogletree.com 101 Park Avenue, Suite 1300 Oklahoma City, OK 73102 Telephone: (405) 546-3755 Facsimile: (405) 652-1401 ATTORNEYS FOR DEFENDANT, HUMANA INSURANCE COMPANY Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 37 of 38 32 CERTIFICATE OF SERVICE This is to certify that on January 16, 2018, a true and correct copy of the foregoing was forwarded via ECF notification, to the following: Jacque Pearsall 2548 NW Expressway Suite 102 Oklahoma City, OK 73112 Attorney for Plaintiff /s/ Victor F. Albert Victor F. Albert 32639979.1 Case 5:17-cv-00710-HE Document 19 Filed 01/16/18 Page 38 of 38