Merendo v. Ohio Gastroenterology Grp., Inc.

Decision Date27 February 2019
Docket NumberCase No. 2:17-cv-817
PartiesBENITA MERENDO, Plaintiff, v. OHIO GASTROENTEROLOGY GROUP, INC., Defendant.
CourtU.S. District Court — Southern District of Ohio

CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

OPINION AND ORDER

This matter is before the Court on Defendant Ohio Gastroenterology Group, Inc.'s ("Defendant") Motion for Summary Judgment (ECF No. 12), Plaintiff Benita Merendo's ("Plaintiff") Memorandum in Opposition (ECF No. 15), and Defendant's Reply (ECF No. 17). For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment. (ECF No. 12).

I.
A. Factual Background

In June 2011, Plaintiff began working as a full-time Billing Representative for Defendant. (Pl.'s Aff. ¶ 4, ECF No. 15-2). Plaintiff's primary job functions included: communicating with patients; entering patient demographic, insurance, and medical information into Defendant's computer system; contacting insurance companies; verifying insurance eligibility; and answering phone calls. (Pl.'s Exhibit A, ECF No. 15-3).

Because Plaintiff could access and view confidential patient medical information, she was subject to Defendant's confidentiality policy. (Def.'s Exhibit B, HIPPA Confidentiality/Security Compliance Agreement, ECF No. 13-2). Under the terms of the policy: "an employee may only refer to a patient's chart or access computer information when it is essential to his or her work responsibilities. Referring to medical information for other purpose or otherwise breaching this duty of confidentiality may be a cause for immediate dismissal." (Id.) (underline in original). On June 2, 2011, Plaintiff signed Defendant's Employee Acknowledgment and Receipt and HIPPA Confidentiality/Security Compliance Agreement. (Id.). Plaintiff also received HIPPA training and email reminders regarding patient confidentiality throughout the course of her employment. (Id.). For example, on December 16, 2013, Defendant sent a HIPPA Security Awareness reminder on December 16, 2013 which stated: "Your role may allow access to patient accounts. Unless, you are working directly with the patient or provider you should not be in the patient's record. This includes your own record if you are a patient of the practice." (Pl.'s Depo. Exhibit B).

Plaintiff testified that, on or around June 17, 2014, she was approved for and began taking intermittent Family Medical Leave Act ("FMLA") leave for her medical conditions, including: gastroesophageal reflux disease ("GERD"), chronic sinusitis, depression, anxiety, bronchitis, neck pain, trapezius strain, chronic venostasis, bilateral knee pain, seasonal allergies, hypoglycemia, and high blood pressure. (Pl.'s Aff. ¶ 7). Plaintiff also testified that she requested reasonable accommodations for her medical conditions. (Id. ¶ 8). In her deposition, Plaintiff testified as follows:

Q. During the three years prior to your termination, you took FMLA leave every year; correct?
A. Yes.
Q. You actually took it most months; can we agree?
A. Yes.
Q. And during that time, had you ever been suspended?
A. No.
Q. During that time you got regular raises; right?
A. Yes.
Q. During that time was your job ever threatened you might be terminated?
A. I was talked to about my absenteeism.
Q. [Were you] ever told you might be terminated during the three years prior to the time you accessed your medical records three times in 24 hours before you were terminated?
A. No.
Q. Okay. You had requested accommodations for your disabilities multiple times in the years that you worked for Ohio Gastro; is that right?
A. Say that again, please.
Q. You requested accommodations for your disabilities multiple times in the years that you work with Ohio Gastro?
A. Yes.
Q. During all those years you requested accommodations, you continued to receive raises; correct?
A. On my merit and for what I did, yes.

(Pl.'s Depo. 44:8-45:16, ECF No 16-1).

According to a letter from Human Resources Manager Heather Foisset ("Manager Foisset") to Director of Operations Megan Dana ("Director Dana"), Plaintiff got "combative" in a December 8, 2015 meeting regarding her FMLA leave. (Def.'s Exhibit J, ECF No. 12-1). Manager Foisset wrote: "I was stern with her so she may complain (I gave Frank a heads up too). Going forward, I am going to have a witness with me every time I talk to her as she twists mywords. She thinks I'm out to get her when in reality I am trying to help her with her FMLA." (Id.).

On May 20, 2015, Plaintiff received a low score of "2" out of "5" on the Attendance and Punctuality section of Defendant's 2014-2015 Annual Billing Performance Evaluation. (Pl.'s Exhibit B, ECF No. 15-3). The evaluation noted: "Benita is on FMLA," and further stated: "Benita is very dependable and strives to keep all her tasks up to date; however, she's been sick lately and has had to take a lot of days off and I know her work is not where she would want it to be." (Id.). On May 18, 2016, Plaintiff received the same score on the Attendance and Punctuality section of Defendant's 2015-2016 Annual Billing Performance Evaluation. (Pl.'s Exhibit C, ECF No. 15-3). This time the evaluation stated: "Benita has missed a few days of work." (Id.). Plaintiff testified that: "[b]ased on this score and comments, I believe that OGGI was discriminating against me due to my serious medical conditions and disabilities, which required me to take FMLA leave." (Pl.'s Aff. ¶ 12).

Plaintiff testified that she requested several accommodations from Defendant which were never granted. Specifically, Plaintiff testified:

Q. . . . if you could tell me all of the times that you requested an accommodation and you were not granted that accommodation while employed at Ohio Gastro Enterology.
A. There were perfume smells. The air vents. The telephone. That's all I can remember right now.
Q. All right. So you—
A. Oh, restroom.
Q. Let's take those one at a time. Let's start with restroom. You requested an accommodation with respect to the restroom. Tell me about that.
Q. Because of being on the phones, customers, patients were on hold for a period of time. Amber had told us we were not allowed to use the restroom during thephone time. And she had stated that in one of our meetings. And she told us we had to be on the phone during that time. Somebody said, what about the restrooms? And she said, go before or after. And because of the medicine I'm on, I would have to use the restroom frequently. Being on the phones at that time, I would need to use the restroom. And there was a time where I had to use the restroom, but because I was told we had to use it before or after, I had literally peed myself at my desk.

(Pls.' Depo. 66:11-67:13). Plaintiff testified that she explained her situation to Billing Manager Amber Pohlman ("Manager Pohlman") as follows:

Q. You went to her [Manager Pohlman] personally a couple of days later and she said to you, get someone to watch the phones while you go [to the restroom]?
A. Yes.
Q. You explained to her, that might not work sometimes?
A. Yes.
Q. Sometimes it would work; sometimes it might not?
A. Yes.
Q. She said, do the best you can?
A. Yes.
Q. Did she leave it at that?
A. Yes.
Q. Was there any other accommodation you asked with respect to the phones?
A. To be taken off the phone rotation.
Q. Did they accommodate you in that regard?
A. No.

(Id. at 72:20-73:14). In her affidavit, Plaintiff testified that Manager Pohlman "did not seem to understand my condition and appeared resistant to my requests." (Pl.'s Aff. ¶ 16).

Finally, Plaintiff testified that Defendant failed to make adequate accommodations concerning air vents and perfume smells. (Pl.'s Depo. 75:19-77:20). According to Plaintiff, she suffered sinus infections due to an air vent directly above her desk. (Id. at 75:21-76:3). Plaintiff testified that Defendant made numerous attempts to adjust or fix the thermostat, but eventually declined to correct the issue because "the part that was needed to help deflect the air was expensive." (Id. at 76:18-19). In addition, Plaintiff testified that an employee wore a certain perfume scent which caused her nasal cavity to swell. (Id. at 77:1-16). Plaintiff testified that management sent emails asking individuals not to wear perfume in response to her complaints. (Id. at 77:2-6). However, Plaintiff further testified:

for a period of time I was good, you know, [the smells] subsided. And then all of a sudden, it started back up again. And we were told [management was] not going to stop people from wearing perfumes. The one person that wore this particular perfumed lotion felt that her rights were being infringed on.

(Id. at 77:6-12).

On May 16, 2017, Plaintiff met with Manager Foisset and Manager Pohlman regarding her FMLA certification paperwork. (Pl.'s Aff. ¶ 19). Plaintiff testified that Manager Foisset and Manager Pohlman "suddenly instructed me to submit a separate FMLA Certification of Health Care Provider for each of my serious conditions." (Id.). Plaintiff testified the change "didn't make sense" because her FMLA paperwork was previously accepted with "everything listed on one sheet." (Pl.'s Depo. 57:7-8). According to Plaintiff's testimony, she asked Manager Foisset "am I the only one that has to [complete separate forms for different conditions]? " (Id. at 105:16-17). Plaintiff testified that Manager Foisset responded: "you are the only one with this many problems." (Id. at 105:17-18). Plaintiff further testified that "[Manager Foisset's] tone to me was telling me I am a problem." (Id. at 109:3).

Plaintiff acknowledged that her new certification form was due in June 2017, but she failed to produce the form on time. (Id. at 59:7-14). According to Plaintiff, the delay was prompted by her doctor's refusal to fill out a separate form for each condition. (Id. at 61:21-62:1). Plaintiff testified: "at the time, I was going to see Dr. Stock. And I let [Manager Foisset] know that when she wanted [the FMLA paperwork] I wouldn't be able to give it to...

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