Calahan v. Pain Mgmt. Grp., P.C.

• Decision Date: 31 July 2017
• Docket Number: Case No. 3:16-cv-0847
• Parties: CYNTHIA CALAHAN, Plaintiff, v. THE PAIN MANAGEMENT GROUP, P.C. and DECENNIAL MANAGEMENT, LLC, Defendants
• Court: U.S. District Court — Middle District of Tennessee

CYNTHIA CALAHAN, Plaintiff, v. THE PAIN MANAGEMENT GROUP, P.C.and DECENNIAL MANAGEMENT, LLC, Defendants

Case No. 3:16-cv-0847

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

July 31, 2017

Judge Aleta A. Trauger

MEMORANDUM

Plaintiff Cynthia Calahan filed this action in May 2016, asserting claims under the Family and Medical Leave Act ("FMLA") and the Americans With Disabilities Act Amendments Act of 2008 ("ADAAA"). Generally, the plaintiff alleges that the defendants, The Pain Management Group, P.C. ("PMG") and Decennial Management, LLC ("Decennial"), violated her rights under both statutory schemes when they terminated her employment while she was on FMLA leave.

Now before the court is the defendants' Motion for Summary Judgment. (Doc. No. 28.) The motion has been fully briefed and is ripe for review. For the reasons set forth herein, the motion will be granted in part and denied in part. Specifically, PMG is entitled to summary judgment, as the plaintiff recognizes, but material factual disputes preclude summary judgment for defendant Decennial Management.

I. MATERIAL FACTS

PGM is a physician practice that operates six clinics and an ambulatory surgical center in Middle Tennessee.¹ Decennial purchased PMG's physician practice and the related ambulatory surgery center in November 2014. Shortly thereafter, in February 2015, Decennial took over PMG's administrative functions and employed all non-clinical staff then working at PMG. (April 4, 2017 Dep. of R. Brown ("Brown Dep.") at 9-10, Doc. No. 29-14.) Cynthia Calahan, who had formerly been employed by PMG, became employed by Decennial beginning in February 2015.

Calahan was employed as a custodian, and her work for PMG and Decennial primarily involved cleaning both the practice's primary clinic, located in Antioch, and the ambulatory surgery center, which was located across the parking lot from the Antioch clinic. Calahan's regular tasks included laundry, cleaning the employee breakroom, cleaning bathrooms, sweeping, mopping, taking out the trash, cleaning medical machines, stripping and waxing the surgery center floors, wiping down exam beds, and ordering cleaning supplies. The plaintiff testified that some of these duties were to be performed on a daily basis, some on a weekly basis, and others—like stripping and waxing the surgery center floors—as infrequently as once every three to six months. (April 10, 2017 Dep. of C. Calahan Dep. ("Pl. Dep.") at 22, Doc. No. 29-1.)

According to Ryan Brown, General Counsel for Decennial, Decennial became aware shortly after taking over the management of the PMG clinics and surgery center that PMG's main clinic in Antioch and the surgery center were not being cleaned adequately and that their cleanliness was not at the necessary standard in light of the services offered. (Brown Dep. 14-16.) The record is unclear regarding whether Brown had personal knowledge about the cleanliness of the clinic. Jason Haley, COO, also testified that it was apparent to him as soon as Decennial took over from PMG that "things were not as clean as they should be and [we were]receiving complaints." (April 5, 2017 Dep. of J. Haley ("Haley Dep.") at 18, Doc. No. 29-21.)

Lee Ann Hess, the front end manager, became Calahan's direct supervisor sometime after Decennial acquired PMG. (May 8, 2017 Dep. of L. Hess ("Hess Dep.") at 13, Doc. No. 34-1.) Haley and Hess both testified that they spoke to the plaintiff several times about patient and other complaints, in particular about trash cans not being emptied and bathrooms not being cleaned. (Haley Dep. 14-15; Hess Dep. 14, 82-83.) In response, the plaintiff points out she was never written up and that no formal documented disciplinary action was ever taken against her. (Brown Dep. 16-17; Haley Dep. 15-16.) Hess testified that the plaintiff's performance improved after she and Haley communicated to the plaintiff more specific expectations regarding her duties and time management. (Hess Dep. 88.) Raif Erim, Decennial's President at the time, testified that he expected there to be a write-up on Calahan's performance in her personnel file but admitted he had not seen one. (April 10, 2017 Dep. of R. Erim ("Erim Dep.") at 34, Doc. No. 29-25.) He and Hess both testified that Decennial employed a sort of informal "three-strikes" policy of first issuing a verbal reprimand and then, if the problem was not corrected, following up with at least one written reprimand. (Erim Dep. 13-14; Hess Dep. 53-54.) It is evident from their testimony and that of others that, at least during the relevant time frame, Decennial had no clearly articulated disciplinary policy. (Brown Dep. 17-18; Haley Dep. 14-15.)²

It is undisputed that the plaintiff began to have knee problems as early as the summer of 2014. She began taking Supartz injections in her knees to help reduce the pain in March andApril 2015. When these proved ineffective, it became apparent that she would need to undergo knee replacement surgery. (Pl. Dep. 40-41, 45.) She testified that she let Erim and Haley know at least a month before formally requesting leave that she would need time off. (See Pl. Dep. 45 ("I know I went to them at least a month before and told them I was looking at surgery but I didn't know when.").) Haley recalled that they knew "a couple of months" before Calahan took leave that she was seeing a doctor . . . and looking into having surgery in the near future." (Haley Dep. 21.)

Calahan officially notified Erim that she needed to take FMLA leave on June 4 or 5, 2015, and she submitted the paperwork to him requesting FMLA leave on June 11. (Compl. ¶ 7; Pl. Dep. 52.) She requested leave from June 16, 2015 through September 16, 2015. (Id.; see Doc. No. 29-11.)

According to Decennial, it had begun looking at options for outsourcing cleaning and janitorial services during the first quarter of 2015, in particular because the company wanted to obtain a higher level of accreditation for the surgery center, which required adherence to a higher standard of cleanliness. (Brown Dep. 21; Haley Dep. 22, 26; Erim Dep. 27.) Erim testified that "the process was sort of already underway" when the company received notice from the plaintiff that she planned to take leave. (Erim Dep. 27.) Upon receiving that notice, according to Erim, Decennial's management concluded that they "needed to bring somebody in to start that process sooner rather than later." (Id.) He claims that, at the time the plaintiff went on leave, the company "had not come to any conclusion as to whether we might still be able to utilize her or not in that role [janitorial] or any other role . . . going forward." (Id. at 27-28.) Haley likewise testified that, although they started looking into other options earlier, he thought the decision to move forward with outsourcing was "maybe" made in the summer of 2015, "[k]nowing after she told us the time frame of when she would be out, we needed to plan accordingly." (Haley Dep. 22.) Prior to receiving notice of when the plaintiff would be on leave, they were "still in the planning phases. . . . So, a certain date had not been set yet, but it would have been in the near future." (Id. at 24.)

Jason Haley, Decennial's COO, testified that he contacted two or three cleaning companies to obtain quotes for services, but he believes these companies may have provided verbal quotes. (Haley Dep. 24, Doc. No. 29-21.) He did not indicate when he contacted these companies and could not recall the names of any cleaning services other than Jani-King of Nashville ("Jani-King"). (Haley Dep. 26.) Jani-King submitted a formal written proposal for services to Decennial dated May 21, 2015. (Brown Dep. Ex. 6, Doc. No. 29-20, at 1.) Thus, it appears to be undisputed that Decennial contacted Jani-King sometime after Calahan had advised Decennial of her need to use FMLA leave.

Decennial made the decision to accept Jani-King's proposal by late May or early June 2015, and it executed a contract with Jani-King on June 5, 2015. (See Doc. No. 29-10.) The contract had an effective date of June 8, 2015 and a two-year term. (Id. ¶¶ 1.1, 1.2.) Calahan knew before going on leave that Decennial had employed a cleaning service to perform her functions while she was on leave; she, in fact, met with the Jani-King employee who would be taking over her functions to "tell her what all [she] did." (Pl. Dep. 64.) She was not told before taking leave that the cleaning service had been employed permanently or that her job was being "outsourced." (Haley Dep. 24-25.)

On August 13, 2015, the plaintiff contacted Haley to notify him that her doctor had authorized her to return to work on August 17, 2015, a month earlier than anticipated, the only limitation being that she should avoid stripping and waxing floors until being re-evaluated at her next post-operative visit on September 11, 2015. (Doc. No. 29-3, at 5.) Haley responded on August 14, 2015 via text, stating: "Cynthia, this is Jason. Raif and I are still discussing potential roles etc at the company. We will contact you next week after we're able to sit down." (Pl. Dep. Ex. 2, Doc. No. 29-3, at 12.) He added, "You don't have to plan to come in until we contact you. Thank you." (Id. at 13.) The plaintiff replied that she did not understand why she could not "come back to cleaning." (Id.)

Haley did not respond, but the plaintiff met with Haley and Hess on August 18, 2015. At that meeting, Haley advised Calahan that Decennial had decided to outsource janitorial and cleaning services and that he did not know "for sure if they had anything available or when they would have anything available." (Pl. Dep. 59.) The plaintiff asked if she was fired; he responded, "I didn't say that. This is what I'm telling you." (Id.) Decennial, however, submitted a Separation Notice to the Tennessee Department of Labor, stating that the plaintiff's employment was terminated effective August 18, 2015, because the company "contracted...