772 F.3d 478 (7th Cir. 2014), 13-3652, Taylor-Novotny v. Health Alliance Medical Plans, Inc.

Docket Nº:13-3652
Citation:772 F.3d 478
Opinion Judge:Ripple, Circuit Judge
Party Name:KIERSTEN M. TAYLOR-NOVOTNY, Plaintiff-Appellant, v. HEALTH ALLIANCE MEDICAL PLANS, INC., Defendant-Appellee
Attorney:For KIERSTEN M. TAYLOR-NOVOTNY, Plaintiff - Appellant: Gerald W. Smith, Attorney, SMITH LAW FIRM, P.C., Mahomet, IL. For HEALTH ALLIANCE MEDICAL PLANS, Defendant - Appellee: Tracy C. Litzinger, Attorney, Leonard W. Sachs, Attorney, HOWARD & HOWARD ATTORNEYS PLLC, Peoria, IL.
Judge Panel:Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
Case Date:November 26, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 478

772 F.3d 478 (7th Cir. 2014)

KIERSTEN M. TAYLOR-NOVOTNY, Plaintiff-Appellant,

v.

HEALTH ALLIANCE MEDICAL PLANS, INC., Defendant-Appellee

No. 13-3652

United States Court of Appeals, Seventh Circuit

November 26, 2014

Argued May 28, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Central District of Illinois. No. 2:12-cv-02132-jes-jag -- James E. Shadid, Chief Judge.

For KIERSTEN M. TAYLOR-NOVOTNY, Plaintiff - Appellant: Gerald W. Smith, Attorney, SMITH LAW FIRM, P.C., Mahomet, IL.

For HEALTH ALLIANCE MEDICAL PLANS, Defendant - Appellee: Tracy C. Litzinger, Attorney, Leonard W. Sachs, Attorney, HOWARD & HOWARD ATTORNEYS PLLC, Peoria, IL.

Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.

OPINION

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Ripple, Circuit Judge

Kiersten M. Taylor-Novotny brought this action against her former employer, Health Alliance Medical Plans, Inc. (" Health Alliance" ), under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. § § 2601-2654, and Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq. Specifically, she contended that Health Alliance had failed to accommodate her multiple sclerosis as the ADA required, had discriminated and retaliated

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against her based on her disability, had interfered with her FMLA rights, and had discriminated against her based on her race. She also asserted a state law claim of intentional infliction of emotional distress. The district court granted summary judgment for Health Alliance on each of her claims.1

We now affirm the district court's judgment. Ms. Taylor-Novotny cannot succeed on her ADA discrimination claim because she did not establish that she was disabled within the meaning of the ADA and because she was not meeting Health Alliance's legitimate expectations for punctuality and accountability. Her failure to meet Health Alliance's legitimate expectations also forecloses her race discrimination claim. She cannot succeed on her ADA failure-to-accommodate claim because she did not establish that the additional accommodation that she sought from Health Alliance was reasonable. Further, the evidence that she offers for her ADA retaliation claim is insufficient to form a convincing mosaic suggesting that Health Alliance retaliated against her because she sought accommodations for her multiple sclerosis. Finally, her FMLA interference claim must fail because Health Alliance never denied Ms. Taylor-Novotny FMLA leave.

I

BACKGROUND

A. Facts

Ms. Taylor-Novotny, an African-American woman, began her employment with Health Alliance in November 2005. She was hired by Jeff Polk, who also is African-American, for the position of Contract Specialist I. As a Contract Specialist I, Ms. Taylor-Novotny was a salaried, rather than hourly, employee. Her job responsibilities included document preparation, negotiating and reviewing contract terms with medical providers, planning proactively for contract renewals, and documenting activities related to medical provider contracts in a contracting management system. At the time Ms. Taylor-Novotny was hired, she had not been diagnosed with multiple sclerosis.

Almost immediately, Ms. Taylor-Novotny encountered difficulties with punctuality and attendance. Cherie Fletcher, Ms. Taylor-Novotny's immediate supervisor, discussed the issue of tardiness with her in May 2006, and again in December 2006. When Ms. Taylor-Novotny received her first annual performance review in January 2007, Fletcher rated her overall performance as average, but rated her attendance and punctuality as marginal. Fletcher noted that Ms. Taylor-Novotny " routinely" arrived late and that she had an " unusual" number of appointments during the work day, including at least thirty appointments noted by Fletcher.2

In March 2007, Health Alliance adjusted Ms. Taylor-Novotny's work schedule to make it easier for her to arrive on time. Specifically, the company pushed back her start time from 8:00 to 8:30 a.m. Shortly after this adjustment, in April 2007, Ms. Taylor-Novotny was diagnosed with multiple sclerosis.

The adjustments to Ms. Taylor-Novotny's schedule did not have the desired result. Ms. Taylor-Novotny was tardy twenty-nine times between March 28, 2007, when her start time was changed, and

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September 10, 2007. In October 2007, Fletcher met with Ms. Taylor-Novotny to discuss her " [c]ontinued [t]ardiness" and to implement a " Corrective Action Plan." 3 The plan required Ms. Taylor-Novotny to check in with Fletcher upon arrival each day. To assist Ms. Taylor-Novotny in her efforts to arrive in a timely fashion, Health Alliance again adjusted her start time to 8:45 a.m. The plan warned Ms. Taylor-Novotny that continued tardiness would result in progressively more serious discipline, beginning with warnings and ending with termination. Ms. Taylor-Novotny signed the plan.

Ms. Taylor-Novotny's December 2007 performance evaluation recorded ongoing problems with tardiness. She was rated " Average" in most categories, but " Marginal" in the categories of " Initiative" and " Attendance and Punctuality." 4 The review indicated that Ms. Taylor-Novotny had an " ongoing problem with tardiness despite the adjustment of her work hours on two different occasions." 5 She was reminded that a " corrective action plan [had been] implemented" in October 2007 and that, despite Ms. Taylor-Novotny's status as a salaried employee, " there [wa]s still an[] expectation that she ha[ve] predictable attendance and office hours." 6

On May 25, 2008, Ms. Taylor-Novotny submitted an FMLA Certification to Health Alliance for her multiple sclerosis. Her physician recommended that she work two days a week from home and noted that she " may miss work for appts/testing/or due to [her multiple sclerosis] diagnosis." 7 Health Alliance approved " intermittent time off as needed to manage [her] condition as specified by [her] physician." 8 Health Alliance noted, however, that it was Ms. Taylor-Novotny's " responsibility to let [her] manager know each time an absence from work will be necessary, as well as whether or not [her] absence should be charged to this approved Family Leave." 9

In December 2008, Ms. Taylor-Novotny began working from home three days per week. Her " Work From Home" agreement required her to abide by all company policies and procedures and to advise Health Alliance if she were ill, had an appointment, or encountered other interferences with her work.10

Six months later, in May 2009, Ms. Taylor-Novotny submitted an additional FMLA Certification to Health Alliance. Her physician noted that she had delivered a baby in April 2009 and stated that she " may miss work for appts/testing/and possibly due to [multiple sclerosis] itself." 11 Health Alliance again approved " [i]ntermittent time off as needed." 12 The approval again advised Ms. Taylor-Novotny that she had to " let [her] manager know each time an absence from work will be necessary, as well as whether or not [the] absence should be charged to this approved Family Leave." 13

In her June 2009 performance evaluation, Ms. Taylor-Novotny earned an overall

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rating of " Achieves Requirements." 14 The evaluation warned, however, that " [t]ardiness remains an issue and concern despite numerous discussions" and that " [d]espite the fact that [Ms. Taylor-Novotny] is a salaried employee, there is still an expectation that she has predictable office hours." 15 The evaluation, which she signed, set goals for her to improve her punctuality.

Ms. Taylor-Novotony maintains that she told Health Alliance staff in early 2010 that excessive fatigue from her multiple sclerosis caused her tardiness. On March 9, 2010, Ms. Taylor-Novotny submitted a note from her neurologist, dated February 11, 2010, that specified that she should not work in the office more than two half-day periods per week.16 At Health Alliance's request, Ms. Taylor-Novotny submitted a recertification from her neurologist, dated April 21, 2010, clarifying his recommendations. That recertification noted her " extreme [multiple sclerosis] fatigue" and recommended that her work in the office be limited to two half-days per week.17 Health Alliance once more approved " [i]ntermittent time off as needed." 18 In addition to a standard form letter, Health Alliance's FMLA Specialist, Deb Beeson, sent Ms. Taylor-Novotny an email noting that " [w]hen you miss work for this reason, please notify your manager/director [that] it is for a Family Medical Leave (FMLA) reason." 19

Some time in March 2010, Ms. Taylor-Novotny also began consulting with Health Alliance about ADA accommodations for her multiple sclerosis. These discussions led Health Alliance to implement several changes in Ms. Taylor-Novotny's physical work arrangement. For example, Health Alliance offered to have another employee retrieve documents from the printer and deliver mail for Ms. Taylor-Novotny. It also worked with her to reduce the files and other items that she needed to carry between her home and the office. These accommodations were successful in alleviating some of the fatigue related to Ms. Taylor-Novotny's condition. At this time, Ms. Taylor-Novotny also requested that she be allowed to use her badge scans to document her arrival times, instead of being required to inform her supervisor directly when she was late and the reason for her tardiness. Because the badge scans only recorded the time of entrance, but neither provided advance notice of, nor the reason for, the late arrival, Health Alliance refused this request.

Ms. Taylor-Novotny also met with Fletcher, Polk, and Tara Swearingen, Vice President of Human Relations, on March 19, 2010, to discuss Ms. Taylor-Novotny's continued tardiness. Swearingen reiterated that Ms. Taylor-Novotny " must contact [Fletcher] every...

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