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Larimer v. U.S. Bank National Association

United States District Court, D. Kansas

July 17, 2018

Amy Larimer, Plaintiff,
v.
U.S. Bank National Association, Defendants.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge.

         Plaintiff Amy Larimer filed this lawsuit against her former employer asserting claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”), as amended by ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553, 42 U.S.C. § 12101 et seq., and claims of interference and retaliation in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. This matter is presently before the court on defendant's motion for summary judgment on all claims (doc. 29). As explained below, the motion is granted in part and denied in part. Specifically, the motion is granted as to plaintiff's FMLA claims and is denied as to plaintiff's ADA claims.

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Plaintiff Amy Larimer began her employment with defendant U.S. Bank National Association in March 2004. Beginning in April 2010, plaintiff began working as a Customer Service Manager in defendant's Overland Park, Kansas contact center. With the exception of a period of time between June 2012 and June 2014 when plaintiff worked as a recruiter in the Overland Park contact center, plaintiff remained employed as a Customer Service Manager in Overland Park until the termination of her employment in September 2015. From January 2015 through the end of her employment, plaintiff reported to Jodi Shireman, defendant's Regional Service Manager. It is undisputed, however, that plaintiff routinely communicated with Ms. Shireman about both personal and work-related issues as early as August 2014. Ms. Shireman, in turn, reported to Jeremiah Allen, the Site Director. At all pertinent times, Stephanie Gandia was the Human Resources business partner supporting the Overland Park contact center.

         Beginning in December 2014, plaintiff began discussing concerns about her health with Ms. Shireman. She advised Ms. Shireman that she had been diagnosed with hyperthyroidism in December and plaintiff continued to discuss her health problems with Ms. Shireman into early 2015. Plaintiff advised Ms. Shireman that her doctors were exploring the possibility that plaintiff had fibromyalgia and that she was continuing to experience various symptoms such as pain, swelling and fatigue. Ultimately, plaintiff was diagnosed with fibromyalgia in July 2015 and she advised Ms. Shireman of that diagnosis at that time. Throughout this time period, plaintiff asked for limited time off to attend doctors' appointments and for days when she was feeling unwell. Plaintiff's evidence suggests that Ms. Shireman knew that plaintiff's requests were related to her ongoing health problems, including her fibromyalgia and symptoms stemming from that condition. The record is devoid as to the specific number of days that plaintiff requested off, but the parties agree that plaintiff's requests were limited in number. It is undisputed that defendant never denied any of plaintiff's requests for time off. It is also undisputed that plaintiff never asked to use FMLA leave for those days off; never filled out any FMLA paperwork; never contacted Human Resources about taking FMLA leave; and never contacted defendant's FMLA administrator. Rather, when she first approached Ms. Shireman about the need for occasional days off, plaintiff suggested that she would simply use her vacation time or “comp” time, and Ms. Shireman agreed that plaintiff's approach was acceptable. Other than taking limited time away from work, plaintiff did not need or request any accommodations to perform her job.

         On August 3, 2015, less than one month after she was diagnosed with fibromyalgia and advised Ms. Shireman of that diagnosis, Ms. Shireman placed plaintiff on a Performance Improvement Plan (“PIP”). The record reflects that plaintiff had never before been disciplined or coached regarding her performance. In fact, her most recent performance review reflected a “highly effective” overall rating. In any event, in the August 3, 2015 PIP, Ms. Shireman identified 6 “questionable situations” that had allegedly occurred over the prior six-month period, beginning in January 2015. According to the text of the PIP, the sixth incident was “severe enough to lead to this discipline.” The sixth incident is described in the PIP as follows:

July 28-after conducting an attendance audit, another manager questioned the likelihood of one of Amy's bankers [sic] attendance availability. Pulling the detail of the audit, there were discrepancies in reporting calculations found as well as the total point value from 2014 not used in the overall point value. This discrepancy was sufficient enough that the banker should have been termed some time ago as well as, if having been properly placed on a final or other accountability, would not have made incentive; a significant financial negligence. These findings were inconsistent with the findings in the rest of the site and put the site at risk.

         The first five incidents involved various issues, including plaintiff's failure to attend a certain meeting that she was selected to attend and her failure to notify Mr. Allen that she would be absent; a banker who, at the time of termination, was paid all available time, instead of just accrued time, causing the banker to owe defendant in excess of $1300 (the PIP does not explain plaintiff's involvement in or responsibility for this incident); and plaintiff's decision to issue a banker a “stern verbal warning” instead of a written warning based on the banker's failure to read all required disclosures during customer calls.

         Defendant's evidence suggests that both Ms. Shireman and Ms. Gandia believed that the sixth incident described in the PIP potentially constituted a violation of defendant's policy strictly prohibiting incentive gaming. Under that policy, employees are prohibited from manipulating records, opening bogus accounts, slamming products, falsifying applications, or skewing results in any way for the benefit of themselves or other employees. In other words, the policy prohibits employees from doing things to unfairly skew their sales results for the purpose of earning incentives. Ms. Shireman testified that she issued the PIP in part because she perceived that plaintiff was gaming the incentive program. It is undisputed that plaintiff's incentives were tied, at least in part, to the incentives earned by her team.

         After plaintiff received the PIP, she issued an attendance warning to the banker described in the sixth incident of her PIP and then left for a previously scheduled vacation. After receiving the warning, the banker raised his voice at Ms. Shireman and caused a “distraction” in the workplace, resulting in his termination. According to defendant, Ms. Shireman and Ms. Gandia believed that if plaintiff had been appropriately “handling” that banker all along, the “blowup” would not have occurred. Shortly thereafter, plaintiff failed to identify a mistake with an employee's standard weekly hours showing correctly in “the system, ” potentially resulting in that employee's incentive goal being lower (and thus, more easily attainable) than it should have been. According to defendant, Ms. Shireman, Ms. Gandia and Mr. Allen decided to terminate plaintiff's employment on September 22, 2015 as a result of the incidents identified in the PIP; the issue with the banker disrupting the workplace; and plaintiff's failure to identify the mistake with her employee's standard weekly hours.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Disability Discrimination ...


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