Hubbard v. Blue Cross Blue Shield Ass'n

• Decision Date: 09 April 1998
• Docket Number: No. 96 C 7121.,96 C 7121.
• Citation: 1 F.Supp.2d 867
• Parties: Mary HUBBARD, Plaintiff, v. BLUE CROSS BLUE SHIELD ASSOCIATION, Defendant.
• Court: U.S. District Court — Northern District of Illinois

1 F.Supp.2d 867

Mary HUBBARD, Plaintiff, v. BLUE CROSS BLUE SHIELD ASSOCIATION, Defendant.

No. 96 C 7121.

United States District Court, N.D. Illinois, Eastern Division.

April 9, 1998.

COPYRIGHT MATERIAL OMITTED

Gail K. Rabinowitz, Chicago, IL, Elizabeth Hubbard, Hubbard & O'Connor, Ltd., chicago, IL, Kwame Yves Raoul, Jean-Baptiste & Raoul, Chicago, IL, for Plaintiff.

Marry Hubbard, Calumet Park, IL, pro se.

Paul Jordan Cherner, Kerryann Marie Haase, Steven Jay Teplinsky, Michael, Best & Friedrich, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

This dispute centers on allegations that defendant Blue Cross Blue Shield subjected plaintiff Mary Hubbard to various forms of employment discrimination during her tenure, ultimately terminating her while she was on medical leave. Specifically, Hubbard claims in her amended complaint that Blue Cross violated the Family Medical Leave Act ("FMLA")29 U.S.C.A. 2601 et seq., 28 U.S.C. § 2617 and 28 U.S.C. § 1331, by firing her while she was on leave (Count I); and violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by failing to promote her because she is female (Count III) and by retaliating against her for complaining that sex played a role in her non-promotion (Count IV).¹ Before this Court is Blue Cross' Motion for Summary Judgment on all counts.

RELEVANT FACTS

The following facts are drawn from the parties' Local General Rule 12 statements of fact.² In March 1987, Hubbard began working for Blue Cross as a secretary. She advanced through a series of promotions to the level of Billing Manager in Blue Cross' Operations Service Center ("OSC"). Def.'s Facts ¶¶ 5-6. She worked in this position, apparently without incident, from November 1994 until early June 1995, when OSC was reorganized by the department manager, Michael Lacivita. Def.'s Facts ¶ 9. Lacivita rewrote the job descriptions for two of the four Billing Manager employees, promoting them to Billing Manager II — a supervisory position.³ Id. ¶ 11; Def.'s Resp. Add'l Facts ¶ 8. Those promoted, Anthony Fortier and Kenneth Thompson, were male. Def.'s Facts ¶ 11. Two females, Hubbard and Ju-Ton Loving, remained in Billing Manager positions and subsequently lost their offices. Pl.'s Facts ¶ 9; Hubbard Aff. ¶¶ 2, 5. Under the OSC reorganization, Hubbard reported to her former peer, Fortier, an employee with whom she had been having some personal differences. Def.'s Facts ¶ 18; Pl.'s Add'l Facts ¶ 20.

Shortly after the reorganization, Lacivita gave Hubbard a positive one-year performance review. Pl.'s Add'l Facts ¶ 21. Signed on June 21, 1995,⁴ the review awarded Hubbard a "CME" rating — meaning that she "consistently meets and at times exceeds expectations."⁵ Pl.'s Facts Ex. 6, at 6. A generally glowing review, it marked only two areas for Hubbard's improvement: the need to "be even more aggressive in getting her ideas expressed" and to follow up "with the many open items a billing manager has to deal with" — although Lacivita admitted that the main reason for the open items was "Mary's own initiatives in resolving billing issues that she has surfaced," and later conceded that Hubbard "in fact closes out most items very quickly." Id. at 2, 5. Otherwise, Hubbard was "masterful at handling our customers ... in difficult situations," possessed "top-notch" customer service skills, and was "driven to provide client satisfaction. She represents HMO-USA in a positive, professional manner." Id. at 2-3. Although the evaluation did not specifically address Hubbard's attitude toward or relationships with superiors, Lacivita did note as "particular strengths" that Hubbard "[i]nteracts courteously and professionally with peers, subordinates, and other employees" and that she "[c]reates a positive corporate image in dealing with co-workers ...." Id. at 3-4.

Notwithstanding her positive review, Hubbard was dissatisfied with her working conditions after the reorganization. She lodged two complaints — one to Beth Williams in the Human Resources Department and one to Lacivita. Pl.'s Add'l Facts ¶¶ 9-10. Hubbard complained to Williams about the fact that two males had been promoted to Billing Manager II. Pl.'s Add'l Facts ¶ 10. To Lacivita, Hubbard indicated that "sex played a role" in her non-promotion; she testified that she indicated this by asking him "why the women los[t] their office[s] and the men didn't." Hubbard Dep. at 578. Hubbard did not, however, specifically tell Lacivita that she believed she did not get the promotion to Billing Manager II because she is female. Id.

On July 12, 1995, approximately one week after Hubbard complained to Williams and Lacivita,⁶ Hubbard received a Documented Verbal Warning ("DVW"), which is a step toward termination. Def.'s Facts ¶ 20; Pl.'s Add'l Facts ¶ 12. Fortier issued the DVW at Lacivita's direction. Fortier Dep. at 116; Lacivita Dep. at 25, 42. In the month since Fortier had begun supervising Hubbard, he noticed certain behaviors on her part that he felt justified the DVW. First, he testified that Hubbard did not pay attention to detail. Fortier Dep. at 105. Second, he testified that Hubbard "had a history of arriving late and leaving early," although he could neither point to a specific occasion nor estimate how often she trimmed work hours. Id. at 106-08. Fortier's final justification for the DVW was Hubbard's insubordination. He testified that Hubbard refused to provide him on one occasion with information about her accounts, remarking to Fortier that it was "not a good day," and she was "not in the mood" to discuss them. Id. at 109-10. Fortier conveyed Hubbard's performance expectations following the DVW in a memo dated July 12. See Def.'s Facts Ex. 7. Before Fortier issued the DVW, he learned from Lacivita that Hubbard had complained about her non-promotion to both Lacivita and Williams — although it is unclear from the record whether he knew the basis for Hubbard's objection to her non-promotion. Id. at 115-16; Pl.'s Add'l Facts ¶ 12.

Lacivita testified that he and Fortier had met with Beth Williams in early July to "explore our options" in disciplining Hubbard. Lacivita Dep. at 25. Personally, Lacivita wanted Hubbard fired. Lacivita Dep. at 25-26. He testified that a single incident of insubordination — an incident he never witnessed, but only heard about from Fortier — prompted the DVW and, he felt, justified her termination. Id. at 26; Pl.'s Add'l Facts ¶ 18. According to Lacivita, Hubbard "created a scene at her cubical when given an assignment"; he explained that "[s]he refused to accept the assignment and she spoke in tones that were clearly disrespectful to her supervisor." Lacivita Dep. at 26-27. Lacivita instructed Fortier to issue the DVW without any further investigation.

Lacivita admitted that Fortier's report was inconsistent with his four-month experience supervising Hubbard and with her entire personnel history. Lacivita Dep. at 40. Hubbard's personnel file revealed no previous incidents of insubordination. Id. at 28. Lacivita acknowledged that Hubbard had never been insubordinate toward him either, and was cordial when he approached her with suggestions for improvement. Pl.'s Add'l Facts ¶ 15.

What followed was a deterioration in Hubbard's employment situation. Between July and September, Hubbard admits that she filled out time sheets indicating her attendance on four days that she was actually absent and that she frequently turned in her time sheets late. Def.'s Facts ¶¶ 24-26. Lacivita received reports from several sources that Hubbard was missing deadlines and refusing assignments. Lacivita Dep. at 48. She often arrived at work late and left early. Prior to the OSC reorganization, however, Hubbard was given informal permission to keep flexible hours because she was taking classes outside of work. Blue Cross admits that Lacivita instructed Fortier to monitor and log Hubbard's arrival, and that no such log was kept on any other employee, even though several were regularly late for work. Pl.'s Add'l Facts ¶¶ 26-33.

On September 25, 1995, Hubbard was placed on a Corrective Action Program ("CAP"). Def.'s Facts ¶ 27. The CAP was a probationary program that was to last 90 days. It required Hubbard to meet several performance goals, including arriving at work on time, reducing unreported absenteeism, completing time sheets correctly, ceasing insubordinate and hostile responses to work assignments, and providing Fortier with face-to-face bi-weekly status reports. The CAP stated that Hubbard's failure to meet any one of these performance objectives would result in her termination. Def.'s Facts Ex. 9. Hubbard denies that she ever responded in a hostile or insubordinate manner to receiving work assignments. Pl.'s Resp. ¶ 28.

While on the CAP, Hubbard continued to make errors on her time sheets and to turn them in late. Def.'s Facts ¶ 32. Fortier reported these incidents on Hubbard's first bi-weekly review, dated October 6, 1997. In addition, on both this and a subsequent review dated October 20th, Fortier reported that Hubbard continued to exhibit hostility and to resist work assignments. Id. ¶ 33. The October 20th review also faulted Hubbard for tardiness on one occasion. Id. ¶ 34. Hubbard refused to sign these reviews; however, she did not specifically contest them in writing or contact anyone to register her disagreement. Def.'s Facts ¶ 36.

Lacivita testified that on Friday, October 20, 1995, he met with Fortier and two Human Resources employees, Kari Kronborg and Tenia Glass, to discuss Hubbard's employment situation. Lacivita Dep. at 70. At that time, he claims, the four of them decided to terminate Hubbard effective Monday, October 23, 1995. Id. at 70-71. But Hubbard did not return to work on or after October 23. Def.'s Facts ¶ 41. She filed for short-term disability for depression, and began leave under the Family and Medical Leave Act ("FMLA") on November 11, 1995. Id. ¶ 42.

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