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Taulbee v. University Physician Group

United States District Court, E.D. Michigan, Southern Division

July 26, 2017

KELLY TAULBEE, Plaintiff,
v.
UNIVERSITY PHYSICIAN GROUP, operating under the assumed name of WAYNE STATE UNIVERSITY PHYSICIAN GROUP, Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         This lawsuit asserting interference and retaliation claims under the Family Medical Leave Act (“FMLA”), disability discrimination, and a hostile work environment based on disability arises from Defendant's termination of Plaintiff's employment on September 23, 2014. The matter presently is before the Court on Defendant's motion for summary judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 20.) The motion has been fully briefed. (ECF Nos. 23, 24.) Finding the facts and legal arguments sufficiently outlined in the parties' briefs, the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f).

         I. Factual and Procedural Background

         On May 1, 2010, Plaintiff began working at Defendant Wayne State University Physician Group (“UPG” or “Defendant”) as a registered nurse in its Department of Consumer Relations triage call center (“Call Center”). In this position, Plaintiff took calls from patients, assessed symptoms, identified a clinical course of action, and followed through on the recommended course of action (e.g. scheduling appointments with the appropriate provider, refilling prescriptions, instructing patients to go to the emergency room or urgent care, etc…). The Call Center handles calls for a system of 300 physicians and their patients. Plaintiff was one of 15-25 people staffing the Call Center.

         Call Center employees worked from 8:30 a.m. until 5:00 p.m. (Def.'s Mot., Ex. 14 at 103.) They regularly had to work beyond 5:00, however, to process prescriptions filled during the day and call back patients who left messages. (Id. at 124-25.) According to Plaintiff, employees complained about this mandatory overtime and tried to devise processes to complete the work before 5:00. (Id. at 126.)

         Call Center employees were required to report to work, log into the system, and be available to begin taking calls promptly at 8:30 a.m. (Def.'s Mot., Ex. 3, ECF No. 20-5.) During her deposition in this matter, Plaintiff acknowledged that an employee signing in a minute after 8:30 was considered late. (Id., Ex. 14 at 104-05, ECF No. 21-1 at Pg ID 305.) On November 1, 2012, Plaintiff's direct supervisor, Rita Russell, sent Plaintiff an email memorializing their conversation on October 26 regarding Plaintiff's repeated non-compliance with UPG's attendance policy (i.e., not being logged onto the phone by 8:30 a.m.). (Id., Ex. 5, ECF No. 20-7.) Russell warned Plaintiff in the email that “[c]ontinued incidents of non-compliance … will result in further disciplinary action up to and including termination.” (Id.)

         On November 5, 2012, Plaintiff sent an email to Miriam Bielski, UPG's vice president of consumer relations, asking whether a discrepancy between the time on Plaintiff's computer and the system recording her log in time was causing her to appear tardy. (Id.) Plaintiff noticed a discrepancy between the time on the computer and the time on the manual phone that sat on her desk. (Id., Ex. 14 at 74, 80, ECF No. 21-1 at Pg ID 298, 299.) Plaintiff claims that once she figured out what the discrepancy was in late 2012, she stopped getting tardy notices. (Id. at 80-81, ECF No. 21-1 at Pg ID 299.) Nevertheless, on May 13, 2014, Plaintiff was placed on a work plan (“Work Plan”) requiring her to, among other things, “[b]e on time and prepared to start and end [her] day at the scheduled time. (Id., Ex. 6, ECF No. 20-8.)

         Plaintiff logged in late every day the last two weeks of July 2014, and a total of eleven times that month. (Id., Ex. 8, ECF No. 20-10.) While Plaintiff worked only eight days in August 2014, she signed in late four times. (Id., Ex. 9, ECF No. 20-11.) Bielski pointed this out to Amy Pezzotti, UPG's executive director of human resources, in an email on August 25, 2014. (Id.) Pezzotti responded that if Plaintiff is coming in late and not improving regarding the Work Plan, “we will move to termination.” (Id.)

         Plaintiff's Work Plan also addressed what Defendant describes as her continuing unprofessional behavior. According to a performance appraisal for the period July 22, 2011 to August 31, 2012, co-workers reported that Plaintiff exhibited a “negative attitude related to departmental policies, procedures, [and] processes.” (Id., Ex. 17 at 2, ECF No. 21-4 at Pg ID 364.) In late March 2014, two of Plaintiff's co-workers, Ruth Proffer and Lisa Neumann, described Plaintiff's behavior as “disruptive, ” “negative”, “distracting” and “disrespectful” in emails to their supervisors, Bielski or Mike Meyer, the latter who had replaced Russell. (Id., Ex. 13.) An April 4, 2014 email from Bielski to Pezzotti described Plaintiff's “ongoing verbal negativity on the floor” and negative comments she had made concerning Meyer. (Id., Ex. 12 at 1, ECF No. 20-14 at Pg ID 269.) Bielski related:

It has come to my attention from various sources including patient complaints that [Plaintiff] is verbally negative on the floor and is upsetting team mates as well as staff outside the department who overhear her ongoing negative comments relating to the corporation, Mike and his management, as well as her dislike for call center protocol decisions.

(Id. at 2, ECF No. 20-14 at Pg ID 270.)

         On July 1, 2014, Bielski emailed Pezzotti, reporting that she had to speak to Plaintiff “regarding her inappropriate behavior and engagement of new employees.” (Id., Ex. 15, ECF No. 21-2 at Pg ID 355.) According to Bielski, Plaintiff was “bullying newcomers into saying how much they are getting paid”, commenting “on how many nurses have come and gone, ” and reporting that “she is planning on going to Henry Ford[.]” (Id.) Pezzotti requested an update from Bielski in a July 23, 2014 email. (Id., Ex 15, ECF No. 21-2 at Pg ID 352.) Bielski responded that Plaintiff was “continuing some of her negative activity.” (Id., ECF No. 21-2 at Pg ID 351.) Bielski sent an email to Plaintiff the following day, providing Plaintiff with examples of the negative activity that she “need[s] to discontinue.” (Id. at Pg ID 354.) In an August 25, 2014 email, Bielski informed Pezzotti that Plaintiff continued to make negative comments and engage in negative disruptive banter, which new employees Phillip Cramer and Tracy Meloche reported to Plaintiff's then-supervisor Cheryl Grega. (Id. Ex. 9, ECF No. 20-11.)

         Bielski complained to Pezzotti again on September 19, 2014, indicating that Plaintiff's “negativity and constant dissatisfaction is bringing down [Bielski's] new staff.” (Id., Ex. 10, ECF No. 20-12.) Bielski requested that they move to dismiss Plaintiff the following Monday or Tuesday. (Id.) During her deposition, Plaintiff acknowledged making negative comments to her co-workers about her work hours, leave time, her pay compared to new hires, and criticizing Meyer. (Id., Ex. 14 at 86-87, 90, ECF No. 21-1 at Pg ID 301-02.)

         On September 22, 2014, Pezzotti emailed Nicole Mascia, UPG's senior vice president and chief operating officer, seeking permission to terminate Plaintiff's employment. Pezzotti indicated that Bielski wanted to terminate Plaintiff who had “been on a work plan since 5/13/14 and no improvement. Feedback has been consistent with the same problems.”[1] (Id., Ex. 10, ECF No. 20-12.) Plaintiff was terminated on September 23, 2014.

         Prior to her termination, on July 3, 2014, Plaintiff had submitted a request for “CTO” from September 24-30, 2014. (Id., Ex. 20, ECF No. 21-7.) “CTO” stands for “combined time off” for vacation and sick leave, which employees accrued in a single bank. (Id., Ex. 2A at 19, ECF No. 20-3 at Pg ID 141.) In the space on the leave request form asking for “Special Considerations for request” Plaintiff wrote: “out of town family wedding[.]” (Id., Ex. 20, ECF No. 21-7.) However, Plaintiff testified at her deposition that there were multiple reasons for her requested time off: “a brother in rehab treatment, … a sister-in-law dying of cancer, … [her] grandma dying of old age[, a]nd [her] fibro flares in the fall from going from that summer to fall.” (Id., Ex. 14 at 142, ECF No. 21-1 at Pg ID 315.) Although acknowledging that the wedding was the only reason she put down on the leave request form, Plaintiff testified that her supervisors were aware of these other things. (Id. at 142-44.) Yet, Plaintiff admitted during her deposition that for this September leave, she never filled out an FMLA request form. (Id. at 145.) In fact, Plaintiff testified that she never requested FMLA leave or filed disability paperwork. (Id.)

         While the leave form reflects that Grega denied Plaintiff's request on August 25, 2014 (id., Ex. 20, ECF No. 21-7), Plaintiff claimed the decision had not been communicated to her and she had to go to management every Friday in the weeks leading up to the requested time off to see if her request had been approved. (Id., Ex. 14 at 141-43, ECF No. 21-1 at Pg ID 314-15.)

         At the end of the workday on Friday, September 19, 2014, Plaintiff sent an email to Bielski inquiring about the status of her “request for CTO.” (Id., Ex. 18, ECF No. 21-5 at Pg ID 375.) Plaintiff wrote: “I would like to know the status of this, today if possible, so that I can finalize plans for next week.” (Id.) When Bielski had not responded and was absent the following Monday, Plaintiff sent an email to Grega in the morning, with the subject line “CTO request.” (Id.) Plaintiff expressed that she hoped the matter would be finalized that day. (Id.) Grega sent an email to Pezzotti, asking what to tell Plaintiff regarding her CTO, as the decision had been made at that point to terminate her employment.[2] (Id.; Ex. 16.) Pezzotti responded the next morning, Tuesday September 23, seeking to arrange a time to deliver the news to Plaintiff that she instead was being fired. (Id., Ex. 18.)

         Pezzotti planned to meet with Plaintiff and Grega at 4:00 p.m. (Id.) In the meantime, however, Plaintiff came to Grega's office asking to go home sick. (Id.) Grega conveyed this to Pezzotti in an email, adding:

She states that the stress of not knowing what is going on with her leave request is making her “physically ill.” She says she has a fever and cough, etc. She [is] “going to try to stick it out for the day.” What do I do now? …

(Id.) Plaintiff testified at her deposition that she also told Grega that “If you don't give me my time I'm going to have to go on medical.” (Id., Ex. 14 at 145, ECF No. 21-1 at Pg ID 315.) According to Plaintiff, Grega responded: “Don't let me hear that.” (Id.) Pezzotti came down shortly thereafter and informed Plaintiff of her termination.

         Plaintiff was diagnosed with fibromyalgia in 2010 or 2011. (Id. at 21.) According to Plaintiff, her illness never prevented her from working. (Id. at 28, 38.) In fact, Plaintiff testified that she has “hardly even missed a day's work.” (Id. at 42.) While Plaintiff testified that she spoke with her doctors about taking a leave from work if she needed it, they never told her “You should take time off … now.” (Id. at 24-25.) According to Plaintiff, the only work accommodation her doctors recommended was that she get up from her chair and move around occasionally: “just to get up and walk or even just get up and stretch.” (Id. at 25.) Plaintiff told each of her direct supervisors at UPG about her doctors' recommendations and they allowed her to do this. (Id. at 28.)

         While Plaintiff's supervisors did not object to her getting up to walk around occasionally, she claims that they did not like her extended bathroom breaks. (Id. at 69-70.) According to Plaintiff, Russell started following her to the bathroom and Sue Janutol once yelled at her for going to the bathroom too often. (Id. at 71- 72.) Plaintiff complained to human resources about the incident with Janutol and Bielski responded, indicating that they would discuss the matter with Janutol. (Id. at 72.) In an email to Bielski, Janutol indicated that Plaintiff was not only going to the bathroom during these breaks, but also making personal phone calls. (Def.'s Mot., Ex. 23.) Plaintiff in fact admitted that she was using the opportunity to return phone calls. (Id., Ex. 14 at 71.) In any event, Plaintiff testified that Janutol never yelled at her again. (Id. at 73.)

         According to Plaintiff, it was hard to get time off at UPG because of a staffing shortage. (Id. at 30.) As far as Plaintiff could recall, however, there was never an occasion where she was denied time off to see her physician. (Id. at 30-31.) Plaintiff related that when she had surgery early in her employment, she had no trouble getting leave for that, either. (Id. at 25-26.) According to Plaintiff, ...


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