Easter v. Asurion Insurance Services, Inc.

Citations: 96 F. Supp. 3d 789; 25 Wage & Hour Cas.2d (BNA) 659; 2015 U.S. Dist. LEXIS 27721; 2015 WL 998308Docket: No. 3:13-01372

Court: District Court, M.D. Tennessee; March 5, 2015; Federal District Court

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Plaintiff Jennifer Easter has filed claims against her former employer, Asurion Insurance Services, under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Tennessee Disability Act (TDA). Asurion has submitted a Motion for Summary Judgment, which the Court will partially grant and partially deny. 

Easter began her employment with Asurion on April 25, 2011, as a Customer Service Representative, reporting first to Shawn Bean and later to Robert Rowe, the Call Center Supervisor. Employees at Asurion are allowed to have no more than 8% absence in a month and must notify their supervisor of any absence within an hour of their scheduled start time. Exceeding this absence rate can lead to disciplinary action, including a Coaching Action Plan (CAP), a Performance Improvement Plan (PIP), and potential termination.

In her under two years at Asurion, Easter faced disciplinary action for attendance violations on nine occasions, including receiving an ACAP and a PIP due to her absence rates exceeding the 8% threshold multiple times. She acknowledges receiving these disciplinary actions but contends that her absences were due to serious health issues, specifically irritable bowel syndrome (IBS) and chronic stomach problems, for which she sought accommodations. 

Easter claims that her attendance issues were exacerbated by her medical conditions, providing instances where she communicated her need for accommodations to her supervisors. For example, she asserts that her October 2012 attendance shortfall was due to IBS and a hospital visit, and she expressed willingness to work late to compensate for absences. She also noted that her attendance problems included time spent away from her workstation for necessary bathroom breaks due to IBS, which she informed her supervisors about. Ultimately, she alleges that her supervisors indicated that once an employee exceeded the absence threshold, the reasons for the absences were irrelevant.

On February 5, 2013, the Plaintiff was placed on a Performance Improvement Plan (PIP) due to attendance issues, specifically a 28.9% absence rate in January 2013, and was instructed to improve her attendance. Failure to complete the PIP could result in termination. The Plaintiff missed work on February 26 and 28, 2013, exceeding the 8% absence limit. On March 1, 2013, she informed Mr. Rowe of her intention to apply for FMLA leave for those absences, citing a sore throat and sinus infection. 

On March 4, 2013, management, including Mr. Rowe and HR representative Ms. Sutton, decided to terminate her employment due to ongoing attendance issues. During the termination meeting, Plaintiff claimed her absences were related to Irritable Bowel Syndrome (IBS) and chronic stomach problems, seeking accommodations, while Ms. Sutton expressed doubts about the qualifications for FMLA leave regarding her stated conditions. Plaintiff alleged she was instructed to apply for FMLA leave through Unum Group, the third-party administrator, marking the first time she received guidance on the application process.

Defendant claims the termination was paused pending the FMLA claim's resolution, but Plaintiff contends she was terminated that day, supported by Mr. Rowe's deposition indicating his belief that her termination occurred on March 4, 2013. The Separation Notice filed by Asurion confirms her employment ended on that date. 

On the same day as the alleged termination, Plaintiff applied for FMLA leave for sinusitis. Unum requested medical certification by March 19, 2013, extending the deadline to March 26, 2013, when the certification was ultimately not received on time, leading to a denial of her FMLA request. Additionally, on March 15, 2013, she filed a separate FMLA request related to a colonoscopy conducted on March 14, 2013. The related medical certification noted her treatment history but did not specify her condition. On March 27, 2014, Unum approved her for intermittent leave covering March 4 to March 14, 2013.

On April 9, 2013, the Plaintiff was notified of her approval for intermittent leave from February 26, 2013, to March 2, 2013. An email from Unum to Asurion on April 8, 2013, confirmed this approval and stated that a previously denied leave request was now granted retroactively as protected leave. Asurion informed Unum that the Plaintiff was terminated on April 2, 2013, claiming her termination was due to her failure to file FMLA paperwork on time, which led Unum to believe the claim was reopened in error. Ms. Sutton alleges Unum promised to inform Plaintiff about the FMLA leave error. The lawsuit was initiated eight months later.

The standards for summary judgment indicate that a party can achieve it if there are no genuine material facts in dispute, allowing judgment as a matter of law. A genuine issue exists if reasonable jury evidence could favor the nonmoving party. Courts must view evidence favorably to the nonmoving party.

The Family and Medical Leave Act (FMLA) provides eligible employees with up to twelve weeks of leave for serious health conditions. The Sixth Circuit recognizes two FMLA violation theories: "entitlement" or "interference," which prohibits employers from denying FMLA rights and requires reinstatement, and "retaliation" or "discrimination," which prevents discrimination against employees for opposing unlawful practices. The Plaintiff claims violations under both theories. Under the interference theory, if an employer takes action based on the employee's FMLA leave, it violates the statute. The court found a genuine issue of material fact regarding whether Asurion interfered with the Plaintiff's FMLA rights by not adhering to notice requirements.

Failure to comply with notice requirements under the Family and Medical Leave Act (FMLA) can lead to claims of interference, as established in Wallace v. FedEx Corp. Employers must inform employees of their FMLA eligibility within five business days of a request for leave or upon becoming aware of a potential FMLA-qualifying reason for leave, according to 29 C.F.R. 825.300(b). An employee is only required to provide sufficient information to notify the employer of a possible need for FMLA leave, without needing to explicitly invoke FMLA rights. In this instance, the Plaintiff communicated her health issues, specifically IBS and related symptoms impacting her attendance, yet her requests for FMLA leave were largely disregarded, including being told to delay her request.

The FMLA does not impose strict liability on employers for interference claims. Instead, the McDonnell Douglas framework applies, where an employer’s legitimate, non-discriminatory reasons for actions, such as excessive absenteeism, can justify their conduct. The Defendant argues the Plaintiff was terminated for exceeding absenteeism limits and failing to meet a performance improvement plan. However, the crux of the Plaintiff's claim is that the Defendant failed to consider her health issues—her absences and tardiness—when evaluating her eligibility for FMLA leave, thus overshadowing any legitimate reasons for her termination.

Employers are prohibited from using FMLA leave as a negative factor in employment decisions, including hiring, promotions, or disciplinary actions, and cannot count FMLA leave against attendance policies. If an employer takes adverse action partly because an employee has requested or taken FMLA leave, it constitutes a denial of FMLA benefits. The term 'take' FMLA leave implies the invocation of rights rather than the actual beginning of leave, as it would be unreasonable for an employer to evade liability by terminating an employee before leave starts. Employers can defend against claims by demonstrating legitimate reasons for termination unrelated to FMLA rights.

In evaluating a claim of FMLA interference or entitlement, the court finds that self-serving testimony is permissible and cannot be disregarded solely for that reason. Conflicting testimonies regarding the employer's awareness of an employee's medical conditions suggest potential credibility issues, which are for a jury to resolve. Summary judgment is inappropriate when credibility determinations are required.

For retaliation claims under FMLA, when direct evidence is lacking, the McDonnell Douglas burden-shifting framework applies. A plaintiff must demonstrate engagement in a protected activity, suffering an adverse employment action, and a causal link between the two. If established, the burden shifts to the employer to provide a legitimate reason for the adverse action, after which the plaintiff must show that this reason is a pretext for discrimination. In this case, the plaintiff's retaliation claim fails at the causal connection stage.

Plaintiff claims she was terminated on March 4, 2012, and that Defendant had already decided to terminate her due to attendance issues prior to this date. In retaliation claims, the employer's motive is critical, as retaliation occurs when an employer acts against an employee for asserting their FMLA rights. Although Plaintiff argues that her termination closely followed her invocation of FMLA rights, this temporal proximity is irrelevant since the termination decision was made beforehand. Evidence indicates that her medical leave was not a factor in the termination, which was already decided. 

Plaintiff's claim is further weakened because she failed to demonstrate a "serious health condition" as defined by the FMLA, given that her ailments—sore throat, sinusitis, bronchitis, and ear infection—are considered routine and short-term. Additionally, she did not submit the required medical certification within the designated time frame, which absolves the employer of liability under the FMLA.

Regarding a certification from Dr. Pruitt related to a colonoscopy in April 2013, the claim also fails. This certification came after her termination and does not establish that she was incapacitated or met the criteria for a serious health condition. The certification indicates that her condition did not necessitate taking time off work.

For her ADA claim, without direct evidence, the analysis will follow a burden-shifting approach akin to that used in FMLA cases.

To establish a prima facie case of employment discrimination under the ADA using indirect evidence, a plaintiff must demonstrate five elements: (1) the plaintiff has a disability; (2) the plaintiff is qualified for the position, with or without reasonable accommodation; (3) the plaintiff experienced an adverse employment action; (4) the employer was aware or should have been aware of the plaintiff's disability; and (5) the position remained available while the employer sought other candidates or the plaintiff was replaced. Once the plaintiff establishes this case, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its actions. If the employer meets this burden, the plaintiff must then prove that the employer's explanation is a pretext for discrimination.

The ADA prohibits discrimination against qualified individuals based on disability regarding various employment aspects. The plaintiff has the initial responsibility to show they are disabled and qualified for the position, with or without accommodation. In reviewing the plaintiff's case, the court initially considered granting summary judgment due to insufficient evidence of a disability. The plaintiff's reliance on uncorroborated deposition testimony regarding an IBS diagnosis was deemed inadequate to demonstrate a disability under the ADA. Although the plaintiff referenced a prior case recognizing IBS as a disability, that case's ruling was vacated, and its applicability was limited.

Furthermore, simply having an impairment does not qualify as a disability; the plaintiff must show that the impairment substantially limits a major life activity. The plaintiff did not clarify who diagnosed the IBS or provide sufficient evidence that the impairment significantly affects a major life activity. Additionally, medical documentation indicated that the plaintiff was able to work without restrictions. While the defendant's memorandum did not address these evidentiary gaps, the ADA was not mentioned in the defendant's reply brief.

Defendant asserts that Plaintiff was terminated due to attendance issues and non-compliance with a Performance Improvement Plan (PIP), arguing that Plaintiff cannot demonstrate that these reasons were a pretext for discrimination. However, Plaintiff contends that her requests for additional bathroom breaks due to her Irritable Bowel Syndrome (IBS) were ignored, indicating a failure by Defendant to communicate as required under the Americans with Disabilities Act (ADA). The ADA defines a 'qualified individual' as someone who can perform essential job functions with or without reasonable accommodation. Employers are required to engage in an informal, interactive process to identify potential accommodations for employees with disabilities. The failure to engage in this process can constitute a violation of the ADA. Here, if the facts are viewed favorably toward Plaintiff, a jury could conclude that Defendant did not engage in this process or provide reasonable accommodations for her condition. The Sixth Circuit has indicated that a lack of engagement in the interactive process may serve as an independent ADA violation, and a termination reason may be deemed pretextual if driven by a refusal to accommodate a known disability. Summary judgment is inappropriate in ADA cases where factual disputes exist regarding whether an employer's actions were retaliatory against an employee's accommodation requests. Additionally, Defendant's claim for summary judgment on Plaintiff's Tennessee Disability Act (TDA) claim is noted but unaddressed by Plaintiff, leading to the potential abandonment of that claim per Sixth Circuit precedent. The court will allow Plaintiff's ADA claim to proceed, although it may face challenges at a later stage.

When a claim is abandoned, a district court may dismiss it without considering its merits, as established in Hicks v. Concorde Career College. Claims under Tennessee Code Annotated § 8-50-103(a) are evaluated similarly to those under the Americans with Disabilities Act (ADA), but the Tennessee Disability Act (TDA) lacks a "reasonable accommodation" requirement, leading to the court's decision to grant summary judgment on the Plaintiff's TDA claim. The court also granted summary judgment for the Defendant concerning Plaintiff's Family and Medical Leave Act (FMLA) retaliation claim, while denying it for FMLA interference and ADA claims. The Plaintiff alleged that Asurion modified the call-in period without notification, and she claimed a diagnosis of Irritable Bowel Syndrome (IBS) in December 2012; however, there is no medical documentation from that period confirming the diagnosis. The only relevant medical record is a certificate dated March 15, 2013, indicating the Plaintiff could work without restrictions. Additionally, the Plaintiff testified that FMLA claims were managed by Unum Group in 2013 and previously by The Hartford Group. She reported that when discussing her IBS with Mr. Rowe in December 2012, he advised her to wait for the new administrator to apply for FMLA leave. A certification from Dr. Andrea Beck stated the Plaintiff was unable to work due to illness from February 26-28, 2013, but did not link her condition to her IBS diagnosis. The court clarified that it does not dispute that IBS can be considered a disability under the ADA, but it requires sufficient evidence to substantiate the claim. The case law on ADA claims related to IBS varies and often depends on specific facts.