Kerry v. Sun Life Fin. (Us) Servs. Inc.

• Decision Date: 15 January 2019
• Docket Number: 2:17-CV-376-LEW
• Parties: SHELLY KERRY, Plaintiff v. SUN LIFE FINANCIAL (US) SERVICES INC., Defendant
• Court: U.S. District Court — District of Maine

SHELLY KERRY, Plaintiff v. SUN LIFE FINANCIAL (US) SERVICES INC., Defendant

2:17-CV-376-LEW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

January 15, 2019

DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

In this diversity action, the Plaintiff, Shelly Kerry, alleges the Defendant, Sun Life Financial (U.S.) Services Company, Inc. retaliated against her in violation of the Maine Human Rights Act ("MHRA") for engaging in activity protected under the Maine Whistleblower Protection Act ("MWPA") and failed to accommodate Plaintiff's alleged disability in violation of the MHRA. Am. Compl. (Doc. No. 14). Defendant moves for summary judgment on the claims, asserting that the termination of Kerry's employment violated neither the MWP nor the MHRA. Mot. Summ. J. (Doc. No. 33). I grant the motion for the reasons set forth in this Decision and Order.

FACTS

The facts are drawn from the parties' stipulations, if any, and from their statements of material facts submitted in accordance with Local Rule 56. The Court will adopt a statement of fact if it is admitted by the opposing party and is material to the dispute. If a statement is denied or qualified by the opposing party, or if an evidentiary objection is raised concerning the record evidence cited in support of a statement, the Court will review those portions of the summary judgment record cited by the parties, and will accept, for summary judgment purposes, the factual assertion that is most favorable to the party opposing the entry of summary judgment, provided that the record material cited in support of the assertion is of evidentiary quality and is capable of supporting the party's assertion, either directly or through reasonable inference. D. Me. Loc. R. 56; Boudreau v. Lussier, 901 F.3d 65, 69 (1st Cir. 2018). If not supported by a specific citation to the record, I will disregard a statement of fact, denial, or qualification. Richardson v. Mabus, 203 F. Supp. 3d 86, 104 (D. Me. 2016).¹

Sun Life hired Plaintiff on August 3, 2015, to serve as a Senior Consultant, Long Term Disability Claims ("LTD") on the Behavioral Health Claims Team. Joint Statementof Material Stipulated Facts ("JSMSF") ¶¶ 9, 12. In this position, Kerry reported to Rebecca Moya, the Senior Manager, LTD, who, in turn, reported to Lisa Doherty, Director, LTD. Id. ¶ 10.

When Kerry was offered her position, she received a copy of Sun Life's Employee Handbook. Defendant's Statement of Material Facts ("DSMF") ¶¶ 3, 9. She also had access to this handbook on the Sun Life intranet site. DSMF ¶ 10. The handbook outlined Sun Life's prohibition on retaliation as well as specific procedures for requesting a medical accommodation.² DSMF ¶¶ 7, 8.

On November 18, 2015, Moya tasked Kerry with the responsibility of writing her first denial letter for a claim that Sun Life initially approved but would deny going forward based on the determination that the claimant's need for long-term disability benefits was not medically supported. DSMF ¶ 29. Following her review, Kerry advised Moya that she felt Sun Life should conduct an additional investigation into whether or not the claimant should be required to pay back prior benefits received due to his receipt of other income. DSMF ¶ 30. In response to Kerry's concerns, Moya explained that Sun Life made the decision to not expend claims resources on an in-depth investigation because it was unlikely the claimant's income exceeded the level at which Sun Life could require repayment of benefits received. DSMF ¶ 31. Kerry strongly disagreed with Sun Life'sactions and she expressed her perspective that every claim should be investigated equally and that it was not appropriate for Sun Life to make a business decision to forgo the expense of further investigation.³ DSMF ¶ 32.

In her later statements on the topic, Kerry asserted that the "Fair Claims Act" requires insurers such as Sun Life to investigate all claims equally, which, in her view, necessitated additional investigation into the claimant's work history. Deposition of Shelly Kerry-Feagans 53:2-10 (Doc. No. 24-1, #315) ("Kerry Dep."). Furthermore, she asserted it was illegal under the Fair Claims Act to make a business decision to forego additional investigation into the claim.⁴ DSMF ¶ 32; Kerry Aff. ¶ 5 (Doc. No. 41, # 1036); Kerry Dep. 55:14-16 (Doc. No. 24-1, #315). However, when voicing her concerns to Moya, Kerry admits she never explicitly mentioned any law, including the misnamed "Fair Claims Act." Kerry Dep. 55:5-7 (Doc. No. 24-1, # 315); Rosenstein Decl. ¶¶ 15-16 (Doc. No. 34-9, #841). Instead, she questioned whether the handling of the claim fell within "fair claims processing," which, based on Kerry's later clarification, was a component of the "FairClaims Act," by which Kerry evidently means the Unfair Claims Settlement Practices provision of the Maine Insurance Code, 24-A M.R.S.A. § 2436-A. DSMF ¶ 36; Kerry Dep. 55:7-12 (Doc. No. 24-1, #315).

Despite these concerns, Kerry sent a follow-up email to Moya later that day which stated: "I did not think you advised [the individual who made the decision to deny the claim] to do the wrong thing. Sorry if it came off like that. I would never do that." DSMF ¶ 33. A month later, Kerry emailed Moya's supervisor, Doherty, regarding the claim and stated: "This is not to say I believe it's right or wrong, I just wanted to explain that it[']s an adjustment for me and I am trying to do the best I can with it." DSMF ¶ 34. Furthermore, she later characterized the issue to Human Resources representatives as a "mistake handled by my manager and another analyst." DSMF ¶ 50; Rosenstein Decl. Ex. 2, 2 (Doc. No. 34-14, #947).

Kerry asserts that from this point forward, Moya began to treat her poorly and became hostile towards Kerry. Plaintiff's Statement of Material Facts ("PSMF") ¶ 38. Kerry asserts this hostility was manifested in many ways, including Moya "chang[ing] her tone to sound angry" or stern, Moya referring to Kerry as "Ms. Shelly" in a sarcastic tone, or Moya generally trying to intimidate her. PSMF ¶¶ 38-40, 42. As examples of this new hostility, Kerry points to two separate meetings with Moya.

First, on December 14, 2015, Moya scheduled a meeting with Kerry "to ensure [she was] keeping track of [her] claims and [her] workload." DSMF ¶ 22. Nearly a month prior to this request, Kerry had been assigned a claim, had discussed the claim with Moya, and had even performed work on the claim. DSMF ¶ 22. However, on December 14, 2015,Kerry reached out to Moya because she was unsure whether she was responsible for the claim. DSMF ¶ 22. Because Moya believed Kerry should have known about the assigned claim, she requested a telephone meeting. DSMF ¶ 22. On December 15, 2015, Moya called Kerry as planned and Kerry answered the call at her desk. DSMF ¶ 23. Among other topics of discussion, Moya asked Kerry about the condition of her health and Kerry disclosed she was suffering from an earache at the time. DSMF ¶¶ 23, 27. Although she was allegedly uncomfortable with the topic, Kerry did not express her uneasiness during the call and did not inform Moya that she was sitting at her desk (a public area where others may be able to overhear the conversation). DSMF ¶ 24. Following the call, Kerry emailed Moya and expressed her discomfort with discussing her health during the call as well as Moya's failure to warn her regarding the content of their meeting. DSMF ¶ 25; PSMF ¶ 42. In a follow-up meeting, Kerry explained to Moya that she felt as though Moya was "trying to intimidate her and find a reason to fire her." PSMF ¶ 42.

Second, in late December 2015, Moya and her manager, Doherty, requested Kerry travel to Portsmouth during inclement weather to meet with them.⁵ DSMF ¶ 39; PSMF ¶ 47. During this meeting, Moya and Doherty provided Kerry with a review that outlined several concerns they had with Kerry's work performance⁶ and they discussed thoseconcerns. DSMF ¶ 40; Kerry Dep. Ex. 10 (Doc. No. 24-11, #457-59). Kerry denies that the performance issues existed, instead asserting that she had been unaware of any performance issues.⁷ PSMF ¶ 48. Furthermore, Kerry asserts that Moya conducted the meeting in an "intimidating" manner and even "yell[ed] at [Kerry] in an unprofessional manner."⁸ PSMF ¶¶ 46, 49. At the close of this meeting, Moya and Doherty agreed to set up additional training for Kerry to address the performance issues they discussed. DSMF ¶ 41.

On January 11, 2016, Kerry left on an approved leave of absence to undergo surgery to address a thyroid condition. DSMF ¶ 42. Kerry was initially scheduled to return to work on February 19, 2016, but post-surgical complications delayed her return to work. DSMF ¶ 42; JSMSF ¶ 13. Kerry was subsequently approved to receive benefits under Sun Life's Short-Term Salary Continuance ("STSC") Program through February 29, 2016. JSMSF ¶ 14; DSMF ¶ 44. After a request for an additional extension due to continued post-surgical complications, Kerry was approved to receive STSC benefits through March 31, 2016. DSMF ¶¶ 44, 69, 70.

While on leave, Kerry reached out to Sun Life's Human Resources department with concerns regarding her manager, Moya. DSMF ¶ 46. In her initial email request to HR, Kerry indicated she would like to speak with the Human Resources department about"returning to work soon with another manager." DSMF ¶ 46; Rosenstein Decl. ¶ 11-12 (Doc. No. 34-9, #840). Although Kerry asserts in her summary judgment affidavit that she was requesting an accommodation because she felt anxiety due to the perceived retaliation from Moya, Kerry Aff. ¶ 13 (Doc. No. 41, #1038); PSMF ¶ 58, in fact, Kerry consistently requested an accommodation due to Moya's alleged retaliation and inappropriate conduct. Response to PSMF ¶ 58; Rosenstein Decl. ¶ 29 (Doc. No. 34-9, # 844); Rosenstein Decl. Ex. 2 (Doc. No. 34-14, #946-47) (Kerry requested to be transferred to a new manager so that she would "not be treated in an unfair way or be assessed...