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Hughes v. Blue Cross and Blue Shield of Kansas, Inc.

United States District Court, Tenth Circuit

July 9, 2013

MARY A. HUGHES, Plaintiff,
v.
BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, JUDGE

This matter comes before the court on defendant’s Motion for Summary Judgment (Dkt. 67). Defendant argues that plaintiff cannot prove her claims of retaliation and interference under the Family Medical Leave Act (“FMLA”). Plaintiff argues that existing genuine issues of material fact preclude summary judgment. After reviewing the parties’ briefs and the evidence submitted with them, the court grants summary judgment to defendant.

I. Uncontroverted Facts

Plaintiff Mary Hughes was hired as a Benefits Administration Analyst by defendant Blue Cross Blue Shield of Kansas, Inc. on September 8, 2009. Plaintiff’s job duties included, among other things, preparing monthly reports, communicating information to defendant’s employees and former employees about their benefits, and downloading information about the employees’ 401(k) plan from Fidelity Investments. During her employment with defendant, plaintiff reported directly to Lisa Burgoon, Human Resources Information Systems Benefits Communication Supervisor. Burgoon reported to Abby Lear, Manager – Employee Benefits and Corporate Health Services. Lear reported to Bob Young, Director – Human Resources. During plaintiff’s employment, Tonya Terrel was defendant’s EEO/Affirmative Action Coordinator. Terrel approved or denied all of defendant’s employees’ FMLA leave requests.

In 2009 and 2010, plaintiff received positive performance reviews and, accordingly, received merit pay increases. In conjunction with her 2010 performance review, plaintiff replied to an email from Burgoon requesting suggestions for departmental improvement. Plaintiff responded that, among other things, she would like for Lear to be sure to provide “sufficient time to approve things when deadlines are coming.” Def.’s Ex. 9 at 2.

In March 2011, plaintiff told Burgoon that, at some point, she might need time off to have sinus surgery. Burgoon told plaintiff to keep her posted about the surgery.

In March 2011, plaintiff made an error while performing the 401(k) file download from Fidelity. Errors made during the 401(k) file download process may present significant problems, including causing employees’ paychecks and 401(k) investment allocations to be inaccurate. On March 25, 2011, Burgoon sent plaintiff an email regarding the error plaintiff had made. Burgoon pointed out the error and told plaintiff how to avoid making such an error in the future. Burgoon also told plaintiff that because of the severity of the error, Burgoon would include the error in plaintiff’s file for her next performance review.

On March 30, 2011, plaintiff emailed Burgoon, stating that she was tentatively scheduled to undergo sinus surgery on May 12, 2011. Plaintiff did not file a request for FMLA leave. Plaintiff later decided, of her own volition, to reschedule the surgery.

On April 20, 2011, Burgoon gave plaintiff a memorandum entitled “Job Performance Concerns.” The memorandum referenced, among other things, a February 2011 meeting between plaintiff and Burgoon regarding missed deadlines and plaintiff’s 401(k) download error. The memorandum also outlined various accommodations defendant had made in an attempt to improve plaintiff’s job performance, followed by suggestions of ways that plaintiff might improve her performance in the future. The memorandum was signed and dated by plaintiff and Burgoon on April 21, 2011.

On May 11, 2011, plaintiff submitted a request for intermittent FMLA leave so she could care for her husband, who was diagnosed with prostate cancer. Defendant informed plaintiff that she was eligible for FMLA leave and her request would be granted once plaintiff submitted a letter of certification from her husband’s physician. Plaintiff provided the letter on May 24, 2011 and received notice the same day that her FMLA leave was approved. Plaintiff subsequently applied and received approval for FMLA leave several times until her final request on October 28, 2011.

Terrel testified that in the summer of 2011, Lear expressed a desire to replace plaintiff through a reduction in force. Terrel told Lear that a reduction in force cannot be used to replace an employee, because it requires the elimination of the employee’s position. Plaintiff’s use of FMLA leave was not discussed during this meeting. Later that summer, defendant hired Tyler Scott to the position of HRIS Specialist, a position with different requirements and duties than the position held by plaintiff – Benefits Administration Analyst.

On September 27, 2011, plaintiff submitted a request for FMLA leave from October 12 through October 26, 2011, so she could undergo sinus surgery. October is a particularly busy time of year for plaintiff’s department because the department prepares for defendant’s annual enrollment period for employees, which begins on November 1. Before plaintiff’s surgery, Lear indicated to plaintiff that the timing of her surgery was not good because it coincided with the busy time of year. Nevertheless, defendant approved plaintiff’s request on October 6, 2011.

On October 28, 2011, following plaintiff’s return to work from sinus surgery, Burgoon gave plaintiff another performance concerns memorandum. The memorandum noted an overall improvement since the April performance concerns memo, but addressed, in detail, three specific concerns about plaintiff’s job performance. The memorandum concluded with a warning that failure to meet expectations could result in further disciplinary action, including termination. The memo was signed and dated by plaintiff and Burgoon.

On October 31, 2011, plaintiff made an error while downloading the 401(k) file from Fidelity. Instead of downloading the file once, plaintiff downloaded the file twice. Kim Farkas, one of defendant’s employees, notified Burgoon of the error on November 7, 2011. Burgoon met with plaintiff on November 9, 2011 to discuss the error. Plaintiff claims she was unaware of the error until it was brought to her attention by Tyler Scott. Burgoon, however, noticed records in the system that did not comport with plaintiff’s recitation of the events leading to the error. Based on this meeting, Burgoon formed the opinion that plaintiff was not being truthful about how the error occurred and decided to terminate plaintiff. Burgoon then met with Lear, who agreed that Burgoon had made the correct decision. Pursuant to company policy, Burgoon and Lear met with Terrel to discuss the decision to terminate plaintiff. Terrel approved the termination.

On November 8, 2011, plaintiff requested FMLA leave to be taken later that month. That same day, defendant pre-approved plaintiff’s request, pending receipt of ...


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