Allen v. Wireless, CIVIL ACTION NO. 3:12-cv-482 (JCH)

• Decision Date: 06 June 2013
• Docket Number: CIVIL ACTION NO. 3:12-cv-482 (JCH)
• Court: U.S. District Court — District of Connecticut
• Parties: QUEEN M. ALLEN and WALTRINA R. WHITMAN, Plaintiffs, v. VERIZON WIRELESS, et al., Defendants.

QUEEN M. ALLEN and WALTRINA R. WHITMAN, Plaintiffs,

v.VERIZON WIRELESS, et al., Defendants.

CIVIL ACTION NO. 3:12-cv-482 (JCH)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JUNE 6, 2013

RULING RE: MLS GROUP OF COMPANIES' MOTION TO DISMISS (Doc. No. 91),

PROFESSIONAL DISABILITY ASSOCIATES' MOTION TO DISMISS (Doc. No. 92),

VERIZON WIRELESS'S MOTION TO DISMISS (Doc. No. 93), METLIFE'S MOTION

TO DISMISS (Doc. No. 98), METLIFE'S MOTIONS TO STRIKE (Doc. Nos. 125, 129),

and PLAINTIFFS' MOTION FOR LEAVE TO FILE SUR-REPLY (Doc. No. 128).

I. INTRODUCTION

Plaintiffs Queen M. Allen ("Allen") and Waltrina R. Whitman ("Whitman") bring this suit against defendants Verizon Wireless ("Verizon"), Metropolitan Life Insurance Company s/h/a MetLife ("MetLife"), MLS Group of Companies ("MLS"), and Professional Disability Associates ("PDA"), alleging 27 state and federal claims related to Allen's requests for leave pursuant to the Family Medical Leave Act ("FMLA") and for short-term disability ("STD") as well as the release of Whitman's confidential medical information in the process of administering those requests. Before the court are Verizons', Metlife's, MLS's, and PDA's Motions to Dismiss the plaintiffs' Fifth Amended Complaint.

II. STANDARD OF REVIEW

Upon a motion to dismiss pursuant to Rule 12(b)(6), the court must determine whether a plaintiff has stated a legally-cognizable claim by making allegations that, if true, would shows he is entitled to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S.544, 557 (2007) (interpreting Rule 12(b)(6), in accordance with Rule 8(a)(2), to require allegations with "enough heft to 'sho[w] that the pleader is entitled to relief'"). The court takes the factual allegations of the complaint to be true, Hemi Group, LLC v. City of New York, 130 S. Ct. 983, 986-87 (2010), and from those allegations, draws all reasonable inferences in the plaintiff's favor, Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).

To survive a motion pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S. Ct. at 1949 (2009) (quoting Twombly, 550 U.S. at 556).

The plausibility standard does not impose an across-the-board, heightened fact pleading standard. Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008). The plausibility standard does not "require[] a complaint to include specific evidence [or] factual allegations in addition to those required by Rule 8." Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (holding that dismissal was inconsistent with the "liberal pleading standards set forth by Rule 8(a)(2)"). However, the plausibility standard does impose some burden to make factual allegations supporting a claim for relief. As the Iqbal court explained, it "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949 (citations and internal quotations omitted). Under the Second Circuit's gloss, the plausibility standard is "flexible," obliging the plaintiff "to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Boykin, 521 F.3d at 213 (citation omitted); accord Arista Records, 604 F.3d at 120. Further, the court must construe pro se pleadings "broadly, and interpret them to raise the strongest arguments that they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000).

III. FACTUAL BACKGROUND

Allen was employed by Cellco Partnership d/b/a Verizon from November 8, 2004 to January 14, 2011, first as a customer service representative and later as a business support coordinator. Fifth Am. Compl. (Doc. No. 88) ¶ 7. From 2004 through 2007, Allen received a "performing" evaluation, which means she consistently attained and may have periodically exceeded job requirements. Id. In 2008, Allen received a "leading" evaluation, which means she consistently exceeded job requirements above and beyond expectations. Id. In July 2009, she received a "performing" evaluation. Id. at ¶ 11.

Metlife administers Verizon's claims for leave pursuant to the FMLA as well as for STD. Id. at ¶ 127. Verizon and Metlife have entered into a service agreement for this purpose. Id. at ¶ 334. Diane Anderson, a Verizon employee, coordinates requests for leave with Metlife. Id. at ¶ 186.

Allen requested leave for January 29, 2009, through February 13, 2009. Id. at ¶ 9. When Allen returned to work, she completed a "return to work" form, which represented that she suffered from a serious illness. Id. at ¶ 155. In August 2009, Allen was taken off a telephone call and brought into a meeting with Verizon's Management Team. Id. at ¶ 158. The Management Team discussed her net promoter score performance, which is a score rated by the consumer, and they discussed how Allen needed to improve her performance. Id. Allen was emotional after the meeting and felt undermined. Id.

Allen experienced high anxiety and depression in response to the meeting. Id. at ¶ 163. She sought psychiatric care and took time off from work, from September 2009 through November 2009. Id. at ¶ 163. She was originally denied FMLA and STD benefits for this period. Id. at. ¶ 222, Ex. 7. However, on appeal, Metlife reinstated her short-term benefits for that period. Id. at Ex. 8. In October 2009, Allen sought an accommodation for her anxiety and depression and requested a position that did not require her to be on the telephone. Id. at ¶ 165. Verizon informed Allen that there were no offline positions available and did not offer other options. Id.

Allen requested leave from February 6, 2010, through February 21, 2010, this time to care for her mother, Whitman. Id. at ¶ 23. As part of her request for leave—claim number ending in 5978—Allen provided Whitman's confidential medical information in the form of a certification ("FMLA certification"). Id. at ¶¶ 23, 41.

Allen submitted another claim—claim number ending in 8494—for FMLA leave and STD for March 8, 2010, through June 24, 2010. Id. at ¶ 24. Allen suffered from allergies and fatigue, she recently had her wisdom tooth pulled, and she wasundergoing pulmonary and sleep testing. Id. at Ex. 15. Laura Cosme, an employee at Metlife, gained unauthorized access to Whitman's FMLA certification on March 26, 2010, while processing claim 8494. Id. at ¶ 41, Ex. 15. Shelly Bennett of Metlife denied Allen's 8494 claim for STD by letter on April 1, 2010. Id. at ¶ 43. In that letter, Bennett acknowledged that Metlife contacted Linda M. Spiegel, APRN ("Speigel"), who was Whitman's, not Allen's, health care provider. Id. at ¶¶ 3, 43. The information regarding Spiegel's care of Whitman was provided in the FMLA certification. Id. at ¶ 43.

Allen's request under the FMLA was denied on April 5, 2010. Id. at Ex. 17. The denial of Allen's claim for STD was overturned months later. Id. at ¶ 92, Ex. 12. On July 14, 2010, Verizon sent Allen a memorandum on how to manage her time off as well as a "final written warning." Id. at ¶ 169. When an employee receives a "final written warning," she is unable to apply for jobs within Verizon. Id.

Allen later requested leave—unrelated to her request to care for her mother—from November 15, 2010, through January 14, 2011. Id. at ¶ 28. This claim ended in the number 8804. Id. at ¶ 44. Allen requested leave because she had a chronic serious health condition involving depression, anxiety, and severe pain in her mouth. Id. at ¶¶ 70, 82, 187. On November 23, 2010, Metlife emailed Allen to inform her that she needed to complete a medical authorization form so her physician could release medical information necessary for evaluating her claim. Id. at ¶ 178. Allen gave her physician the required forms. Id. at ¶ 188.

Metlife provided MLS and PDA's Independent Medical Peer Reviewer access to Allen and Whitman's private information. Id. at ¶¶ 141, 405. MLS used information from Whitman's FMLA certification in its peer review of Allen's STD claim. Id. at ¶ 378.PDA's Independent Medical Peer Reviewer created a report regarding the basis for Allen's claim. Id. at ¶ 149. In that report, PDA represented Whitman's medical history as though it were Allen's history. Id. at ¶ 185.

Metlife denied Allen's 8804 STD claim, stating that, "[t]he information available noted you received treatment, however, lacked the objective evidence sufficient to document a condition or symptoms that were of a level of severity that would be consistent with functional impairment and inability to perform your job." Id. at ¶ 81. Allen alleges that Metlife used Whitman's certification to deny her claim. Id. at ¶ 150. On January 4, 2011, Allen attempted to appeal her claim for STD and FMLA benefits. Id. at ¶ 181. Metlife acknowledged Allen's appeal request on January 14, 2011, and provided the administrative file to Allen in June 2011. Id. at ¶¶ 183-84.

While Allen was absent from work, Allen emailed her supervisor, Debra Bushman ("Bushman"), daily regarding her health. Id. at ¶¶ 189, 196. Bushman informed Allen that, as of January 1, 2011, she could no longer communicate her absences to Bushman via email. Id. at ¶ 189. She had to call the Call Center...