Boyd v. Humana Insurance Company

REPLY to Response to Motion re MOTION for Summary Judgment and Brief In Support

W.D. Okla.February 22, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA CATHERINE BOYD, Plaintiff, vs. Case No. CIV-17-710-HE HUMANA INSURANCE COMPANY, Defendant. HUMANA’S REPLY TO PLAINTIFF’S RESPONSE TO HUMANA’S MOTION FOR SUMMARY JUDGMENT In accordance with Local Civil Rules 7.1(i) and 56.1, Defendant, Humana Insurance Company (“Humana”), replies to the new matters raised in Plaintiff Catherine Boyd’s Response to Defendant’s Motion for Summary Judgment [Doc. 20], filed February 16, 2018 (the “Response”), and in support of Defendant Humana Insurance Company’s Motion for Summary Judgment and Brief in Support [Doc. 19], filed January 16, 2018 (the “Motion”). In filing her brief, Plaintiff continues her complete disregard for the Federal Rules of Civil Procedure and this Court’s Local Civil Rules. Plaintiff filed her Response nine days late without bothering to ask the Court’s permission. Plaintiff has also completely disregarded the Court’s summary judgment procedure, which is clearly outlined in Local Civil Rule 56.1. Nevertheless, the Motion and Plaintiff’s deficient Response establish that Humana terminated Plaintiff for the legitimate, non-discriminatory reason of excessive unprotected absences from work or tardiness in reporting to work. And, the final two unprotected tardies happened the week after she was warned in writing to not have any further unprotected attendance infractions. The Court should grant Humana’s Motion. Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 1 of 11 2 BACKGROUND & UNDISPUTED MATERIAL FACTS As set out in the Motion, this case is straightforward and uncomplicated. After moving to a work-from-home position in 2015, Plaintiff had substantial attendance and tardiness issues, as well as other problems following the Humana Associate Work-Life Policies and Processes. In a seven-month period, Plaintiff was absent from, tardy to, or left early from work 22 times. And even if certain absences that Plaintiff incorrectly asserts to have been potentially protected by FMLA are not counted against her job attendance record, Plaintiff was inarguably absent from, tardy to, or left early from work at least 15 times in that period. On February 19, 2018, Humana placed Plaintiff on a Competency & Contribution Improvement Plan (“CCIP”) to correct her attendance issues. The very next week, Plaintiff was tardy to work twice because she underestimated traffic and because she overslept. Because Plaintiff could not refrain from unprotected attendance infractions, Humana terminated Plaintiff’s employment. In her Response, Plaintiff has completely disregarded the Court’s procedure regarding factual contentions in the summary judgment process. Local Civil Rule 56.1(c) provides that the “brief in opposition to a motion for summary judgment … shall begin with a section responding, by corresponding numbered paragraph, to the facts that the movant contends are not in dispute and shall state any fact that is disputed.” (emphasis in original). Further, Local Civil Rule 56.1(e) provides that “[a]ll material facts set forth in the statement of material facts of the movant may be deemed admitted for the purpose of summary judgment unless specifically controverted by the nonmovant using the procedures set forth in this rule.” (emphasis added). Nevertheless, Plaintiff completely failed to respond to Humana’s statement of undisputed facts. Furthermore, Plaintiff has completely failed in her presentation of evidence. At the summary judgment stage, “when a movant claims that there is no genuine issue for trial Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 2 of 11 3 because a material fact is undisputed, the nonmovant must do more than refer to allegations of counsel contained in a brief to withstand summary judgment.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). In other words, Plaintiff was required to-but failed to-present sworn testimony or authenticated exhibits in support of her Response. “[I]t is not [the Court’s] job to do counsel’s work of organizing or formulating a party’s arguments.” Hauff v. Petterson, 755 F. Supp. 2d 1138, 1150 (D.N.M. 2010). “Nor is it the Court’s function to ‘scour the record in search of evidence to defeat a motion for summary judgment.’” Id. (quotation omitted). In sum, because Plaintiff failed to meet the requirements of the summary judgment procedure, Plaintiff has admitted, among other things, that she was excessively absent, that her absences were not protected by the FMLA, and that she was terminated solely for being tardy to work twice in the week after she was placed on her CCIP. Plaintiff uses much of her “Summary of the Facts” to inform and re-inform the Court that during 2015 and 2016, she was receiving treatment for a worker’s compensation injury. See generally (Resp. [Doc. 20]). Frankly, this is wasted ink. Plaintiff’s worker’s compensation absences were not considered in Humana’s decisions regarding Plaintiff’s employment. (Mot. [Doc. 19], at 7). Plaintiff does not dispute this fact. See (Resp. [Doc. 20], at 16-17). And even Plaintiff’s “Summary of Facts” recognizes that Plaintiff’s worker’s compensation was not a factor in the decisions regarding her employment. See, e.g., (Resp. [Doc. 20], at 13) (noting that Plaintiff “will not be allowed any time off … except for … her ‘WC injury’”). Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 3 of 11 4 Additionally, in her “Summary of the Facts,” Plaintiff takes a number of misleading liberties. She alleges that taking her daughter to an inpatient counseling facility was an “FMLA qualifying event.” (Resp. [Doc. 20], at 7). But, it neither qualified nor did Plaintiff seek FMLA leave for that event. (Mot. [Doc. 19], at 11). Without providing any of the support required by Federal Rule of Civil Procedure 56, Plaintiff also alleges that in November 2015, she sought care and treatment for “depression, anxiety, and persistent leukocytosis.” (Resp. [Doc. 20], at 7). She identifies one appointment on January 29, 2016, related to these alleged ailments, supported only by medical records that she produced in litigation. (Resp. [Doc. 20], at 11). Plaintiff never requested FMLA leave related to her alleged medical condition, and, as set out more completely in the Motion, a single doctor’s appointment is not sufficient to put an employer on notice of a need for FMLA leave. (Mot. [Doc. 19], at 11, 18-20). Plaintiff also acknowledges that her supervisor asked her to contact Humana’s leave administrator if she needed FMLA leave for her own alleged ailments. (Resp. [Doc. 20], at 13-14). Humana took all required steps related to Plaintiff’s eligibility for FMLA leave for her daughter’s broken arm. Plaintiff does not deny that Humana’s HR department and leave administrator told her that she was eligible for FMLA leave and gave her instructions on applying for FMLA leave. (Mot. [Doc 19], at 9-12). In fact, Plaintiff has attached an unauthenticated email to her Response that shows that she “talked to HR, who state[d] that I do qualify for FMLA.” (Resp. [Doc. 20-2], at 6). Plaintiff clearly understood that she was eligible to apply for FMLA and intended to do so, because it is undisputed that she took her FMLA forms to her daughter’s doctor and there is no evidence that she was prevented from submitting those forms. (Mot. [Doc. 19], at 11). Nevertheless, Plaintiff failed to return the required certification to Humana, and her absences related to her daughter’s broken arm were not FMLA protected. Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 4 of 11 5 Plaintiff alleges that one of her supervisors once said to her that FMLA “was not an option.” Other than her self-serving, unverified accusations, Plaintiff has no support for this allegation, and Humana denies that this happened. Even if it had, Humana’s leave administrator and human resources department both told her that she qualified for FMLA leave for her daughter’s broken arm. (Resp. [Doc. 20], at 10). Additionally, these alleged comments did not prevent her from submitting her FMLA paperwork to her daughter’s doctor. (Mot. [Doc 19], at 11). Therefore, this alleged comment caused no actual interference or retaliation. And, even if Plaintiff had received FMLA leave for all of her alleged medical events, Plaintiff does not dispute that she was still excessively absent from her job. (Mot. [Doc 19], at 11-12). Finally, in her own words, Plaintiff admits that on “March 2, 2016, [her] employment with Humana was terminated for being 30 minutes late to an onsite retrieval and then 15 minutes tardy the following day.” (Resp. [Doc. 20], at 15). That is, she admits that she was not terminated for any reason related to FMLA. Plaintiff was not terminated for anything other than not being able to make it to work on time. The Court should enter summary judgment in favor of Humana. ARGUMENT & AUTHORITIES I. Plaintiff Has Confessed Humana’s Motion. On January 16, 2018, Humana timely filed its Motion. 1 One month later, on February 16, 2018, Plaintiff filed her Response substantially out of time and without leave of Court. This Court’s Local Civil Rules are clear that a “party opposing a motion shall file a response within 21 days after the date the motion was filed.” LCvR 7.1(g) 1 The Court’s Scheduling Order [Doc. 15] set the dispositive motion deadline for January 15, 2018. That day was a federal holiday, Birthday of Martin Luther King, Jr., moving the deadline to January 16, 2018. See Fed. R. Civ. P. 6. (Humana’s counsel confirmed with the Court’s chambers that the deadline was in fact January 16, 2018.) Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 5 of 11 6 (emphasis added). According to this Court’s Local Civil Rules, “[a]ny motion that is not opposed within 21 days may, in the discretion of the court, be deemed confessed.” Id. The Court could deem the Motion confessed on this basis. But, despite the procedural deficiencies in this case, the merits mandate summary judgment to Humana, as is explained next. II. Humana Did Not Interfere with Plaintiff’s FMLA Leave. Regarding her interference claim, Plaintiff seems to allege that Humana interfered with her FMLA leave because (1) Humana did not discuss FMLA with her until her daughter broke her arm and (2) that “Humana threatened her and contrived her termination based on absences protected by the FMLA … .” (Resp. [Doc. 20], at 18-21). Plaintiff provides no law in support of these claims or against Humana’s arguments, and “it is not [the Court’s] job to do counsel’s work of organizing or formulating a party’s arguments.” Hauff v. Petterson, 755 F. Supp. 2d 1138, 1150 (D.N.M. 2010). At any rate, no reasonable jury could find for Plaintiff on an interference claim based on either of these allegations. Moreover, Plaintiff has not addressed-and therefore has confessed- Humana’s arguments that Plaintiff was not entitled to FMLA, because she did not submit her required certification or provide notice; that Humana did not take any actions that amounted to “interference”; and that Plaintiff’s termination was unrelated to the FMLA. A. Humana informed Plaintiff of the FMLA. First, Plaintiff complains that Humana should have informed her of the FMLA in August 2015, after her worker’s compensation injury; in November 2015, when she alleges she experienced “depression, anxiety, and persistent leukocytosis”; and in January 2016, when her daughter broke her arm. (Resp. [Doc. 20], at 20). As stated above, Plaintiff’s worker’s compensation injury is irrelevant. Plaintiff was allowed to attend her worker’s compensation appointments, and her absences for those appointments were Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 6 of 11 7 specifically excluded from Humana’s disciplinary considerations. Further, Plaintiff did not so much as mention her own alleged medical ailments until January 2016, simply referencing one doctor’s appointment. 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 conditions, 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); Miller v. Venator Group, Inc., No. 00 C 0454, 2000 WL 648186, *3 (S.D.N.Y. May 18, 2000); Carter v. Rental Uniform Serv. of Culpeper, Inc., 977 F.Supp. 753, 761 (W.D.Va.1997). Finally, Humana did in fact provide Plaintiff notice of her eligibility for FMLA leave for her daughter’s broken arm. Humana’s leave administrator and human resources department both told Plaintiff that she was eligible for FMLA and provided her the required forms. Humana even extended Plaintiff’s deadlines after she initially missed them. Humana did not fail to meet any of its FMLA-notification requirements, and no reasonable jury could find that Humana interfered with Plaintiff’s FMLA leave. B. Humana cannot be found liable for FMLA interference for any alleged “threat” or for Plaintiff’s termination. Plaintiff also alleges that Humana “threatened her and contrived her termination based on absences protected by the FMLA … .” (Resp. [Doc. 20], at 21). Plaintiff does not explain what she means by this, but Humana assumes that this allegation refers to Plaintiff’s allegation that a supervisor told her that FMLA leave was “not an option.” As stated in the Motion, a stray comment is not sufficient for a jury to find FMLA interference. See, e.g., McKinzie v. Sprint/United Mgmt. Co., No. CIV.A.03-2348-GTV, 2004 WL 2634444, at *10 (D. Kan. Nov. 16, 2004); 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). More Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 7 of 11 8 importantly, this alleged comment could not have interfered with anything. Plaintiff contacted Humana’s FMLA leave administrator, was told she was eligible for leave, was provided the leave forms, took those forms to her daughter’s doctor, and was only denied leave after she failed to provide medical certifications after an extension of time. As for her termination, Plaintiff has admitted that she was terminated “for being 30 minutes late to onsite retrieval and then 15 minutes tardy the following day.” (Resp. [Doc. 20], at 15). Even if Plaintiff had received FMLA leave for her all of her alleged medical issues, it is undisputed that she still would have been excessively absent and tardy. An “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. Even if Plaintiff was absent some of the time for potentially FMLA-qualifying reasons, she was terminated for oversleeping and underestimating traffic. No reasonable jury could find that Humana interfered with Plaintiff’s FMLA leave. The Court should enter summary judgment in favor of Humana. III. Humana Did Not Retaliate Against Plaintiff for FMLA Leave. Regarding her retaliation claim, Plaintiff alleges that there was a “causal connection between [her] workers’ compensation injury, her request for FMLA leave, and the termination of her employment.” (Resp. [Doc. 20], at 21). And yet again, Plaintiff fails to provide any law in support of her argument. As set out above, her worker’s compensation injury is irrelevant. Plaintiff was given time off for her treatments, and it is undisputed that her absences related to her worker’s compensation injury were not a factor in Humana’s decisions. Therefore, Plaintiff has not even set out a prima facie case of retaliation, and no reasonable jury could find in Plaintiff’s favor. Further, Plaintiff does not dispute Humana’s argument that she did not engage in a Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 8 of 11 9 protected activity. In the Motion, Humana demonstrated that none of Plaintiff’s medical events entitled Plaintiff to FMLA leave, because Plaintiff failed to provide the required medical certification or provide sufficient notice. (Mot. [Doc. 19], at 25-26). Plaintiff has not so much as responded to this argument, and the Court should grant summary judgment on this ground. Additionally, Plaintiff does not even address the second and third steps of the McDonnell Douglass factors. Instead, she admits that she was terminated for the legitimate, non-discriminatory reason of failing to meet the requirements set out in her CCIP by being tardy to work twice the very next week after she was placed on the CCIP. Plaintiff does mention that her absences were similar in 2013, 2014, and 2015, and that she received generally neutral performance reviews in 2012 and 2014. (Resp. [Doc. 20], at 22-23). But these facts only support that Humana had legitimate, non-discriminatory reasons for terminating her employment. Plaintiff’s tally of her PTO days does not include all of her tardies and early departures that were in addition to those PTO days. Compare (Resp. [Doc. 20-1], at 5-6, 19-20) with (Resp. [Doc. 20-2], at 15-17). She had 15 unprotected attendance infractions in the period covered by her CCIP and in her termination letter in addition to her PTO days. (Resp. Doc. 20-1], at 5-6, 19-20). Further, Plaintiff’s performance reviews precede her transfer to a work from home position, when she began taking unacceptable liberties with attendance and punctuality. No reasonable jury could find in favor of Plaintiff. The Court should grant summary judgment in favor of Humana. IV. Humana Did Not Willfully Violate the FMLA. Finally, Plaintiff argues that “a genuine issue of material fact exists as to whether Humana willfully violated the FMLA giving rise to liquidated damages.” (Resp. [Doc. 20], at 23). This is not the FMLA standard for liquidated damages. Further, the Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 9 of 11 10 undisputed facts show that Humana did not act “willfully.” Just as in Bass v. Potter, which Plaintiff cites in her Response, Humana provided Plaintiff instructions and multiple opportunities to submit her medical certifications. Plaintiff simply failed to meet her “several duties concomitant to” her FMLA rights, such as notice and her medical certifications. Bass v. Potter, 522 F.3d 1098, 1099 (10th Cir. 2008). No reasonable jury could find that Humana acted “willfully.” CONCLUSION For the reasons set out above and in the Motion, no reasonable jury could find for Plaintiff on her FMLA interference and retaliation claims. The Court should grant summary judgment in favor of Humana. 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 21 Filed 02/22/18 Page 10 of 11 11 CERTIFICATE OF SERVICE This is to certify that on February 23, 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 33081807.1 Case 5:17-cv-00710-HE Document 21 Filed 02/22/18 Page 11 of 11