Oncale v. CASA of Terrebonne, Inc.
| Decision Date | 25 June 2020 |
| Docket Number | CIVIL ACTION No. 19-14760 SECTION I |
| Parties | NICOLE ONCALE v. CASA OF TERREBONNE PARISH, INC. ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is defendants CASA of Terrebonne, Inc. ("CASA"), Donna Brunet ("Brunet"), and Carl McNabb's ("McNabb") (collectively, the "defendants") motion1 to dismiss plaintiff Nicole Oncale's ("Oncale") complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted in part and denied in part.
This case arises from Oncale's claims against the defendants for disability discrimination, failure to accommodate a disability, and retaliation in violation of the Rehabilitation Act ("RA"); interference with and denial of leave in violation of the Family Medical Leave Act ("FMLA"), and retaliation for requesting and taking such leave; retaliation for exercising rights pursuant to the Employment Retirement Income Security Act ("ERISA"); intentional interference with a contract in violation of Louisiana law; engaging in unfair or deceptive acts or practices in violation of theLouisiana Unfair Trade Practices Act ("LUTPA"); and intentional infliction of emotional distress.2
Accepting all of the factual assertions in Oncale's complaint as true, they are as follows: Oncale began working for CASA as a community relations coordinator in 2013.3 CASA receives federal financial assistance, which it uses, in part, to employ staff.4 In June 2018, Oncale was diagnosed with Stage 3B inflammatory breast cancer.5 Oncale informed her supervisor, Brunet, of her diagnosis, and Brunet assured her that her job was not in jeopardy and that CASA would provide her with the necessary time to recover.6
With CASA's approval, Oncale began taking paid time off for chemotherapy treatment on July 5, 2018.7 As of July 16, 2018, Oncale had accrued eighty hours of vacation and forty hours of sick time for the year.8 During her six months of chemotherapy treatment, she took off about a week and a half each month from work.9 Although, to earn "flex time" Oncale worked many thirteen-hour days to compensate for the time she took off during treatment, Brunet informed Oncale in August 2018 that she would soon exhaust all of her paid time off.10
Brunet permitted Oncale to take unpaid time off during the summer and fall of 2018, consistent with CASA policy, which refers to the FMLA and states that employees are eligible for up to three months of personal leave, including leave for medical reasons.11 In October 2018, Brunet gave Oncale an "outstanding" performance review, but reprimanded her for being tardy to work.12 However, Oncale's tardiness was due to her chemotherapy treatments, for which CASA had already approved time off.13
On November 14, 2018,14 Oncale informed Brunet, via email, that her mastectomy surgery was scheduled for December 4, 2018.15 Oncale advised Brunet that she anticipated being away from work for four to six weeks following the surgery, but that she would also require some time off prior to the surgery for preoperative appointments.16 Brunet inquired as to whether this would be the only surgery that Oncale would be having, and Oncale responded that radiation would follow this first surgery for thirty minutes a day for a period of six weeks, followed by a second surgery that would be scheduled three to six months after radiation was completed.17
The following week, Brunet stopped speaking to Oncale.18 On November 21, 2018, Oncale asked Brunet whether she and CASA's board president, McNabb, were planning to fire her.19 Brunet and McNabb confirmed that they were considering terminating Oncale due to her need to take leave.20 Brunet subsequently informed Oncale that leave for her first surgery was covered by the FMLA, but that this leave would expire while she recovered from the surgery.21
On November 27, 2018,22 Oncale emailed the board of CASA, including McNabb, and requested a meeting to discuss CASA's intention to terminate her employment.23 Oncale stated in the email that, "I have to have the surgery or I will die" and that she would require four to six weeks of leave after the surgery for recovery.24 Oncale also inquired as to whether she would be able to keep her job, and she stated that she needed to know for purposes of insurance and income.25 Oncale never received a response to her email.26 That same day, Oncale informed Brunet that she could potentially return to work just four weeks after her surgery, instead of six, but Brunet did not respond.27
Brunet and McNabb met with Oncale on November 28, 2018, two days before Oncale took leave for her surgery.28 Brunet said that she spoke with the Honorable Ernestine Grey, president of National CASA, who informed her that Oncale was protected by the FMLA, and that Brunet needed to terminate Oncale because she was a "liability."29 Brunet informed Oncale that she was qualified to take twelve weeks of leave pursuant to the FMLA, but that by December 27, 2018, such leave would expire.30 Brunet explained to Oncale that CASA was going to terminate her employment because her anticipated return date, four weeks post-surgery on January 4, 2019, was a few days after the expiration of her FMLA leave.31 Brunet and McNabb told Oncale that they would mail her a letter stating that she was terminated as of November 28, 2018.32
Brunet and McNabb stated that Oncale was also being terminated because of her inability to return as a full-time employee after surgery.33 Oncale responded that she could, in fact, work full time after surgery, but Brunet stated that she did not believe Oncale, as Oncale had to undergo radiation post-surgery.34 Oncale explained that her doctor advised her that radiation was less harsh than chemotherapy, and she reminded Brunet that she had already worked through chemotherapy.35 Oncalemade clear that she planned to work while receiving radiation and that she only needed leave for her upcoming surgery.36 Oncale further clarified that she would not need time off for daily radiation, as she could receive treatment after work each day.37 Brunet again disagreed, stating that she had witnessed a friend experience radiation and had "googled" it.38
McNabb then requested to speak with Oncale's oncologist regarding how the radiation would affect her ability to work, to which Oncale agreed.39 Oncale asked Brunet and McNabb to allow her to remain employed until at least December 27, 2018, the day her FMLA leave expired.40 Brunet and McNabb agreed, and they confirmed that Oncale would be fired if she did not return to work by December 27, 2018.41 McNabb told Oncale to "go ahead" and sue them if she wished, as "no one has ever won before."42 During this meeting, Brunet and McNabb also expressed that Oncale had always performed exceptionally.43
During the next few days following the November 28, 2018 meeting, McNabb spoke with Oncale's oncologist who confirmed that Oncale would be able to work while receiving radiation.44
On December 4, 2018, Oncale underwent the mastectomy surgery as scheduled.45 On December 21, 2018, Brunet emailed Oncale to see how she was doing.46 Oncale responded that she was not experiencing any health issues, but that she would still require radiation for thirty minutes per day.47 Oncale also requested certain accommodations, including time off for physical therapy (once per week for thirty minutes for six weeks) and immunotherapy (one day off per month).48 Oncale stated that she assumed that Brunet or CASA's board would have to make the decision as to whether to continue to work with her treatment schedule.49 Brunet never responded to Oncale's email.50
On December 26, 2018, Oncale followed up with Brunet via email, inquiring as to whether Brunet was waiting to see if Oncale would return to work the following day or waiting for the board's reply as to Oncale's ongoing treatment schedule.51 Brunet called Oncale later that day and informed her that she was terminated.52 Brunet stated that Oncale could maintain her insurance coverage at her own expense of over $400 per month.53 Oncale expressed her belief that the decision was unfair,considering that she was not given the chance to return to work by December 27, 2018 as previously discussed.54
Oncale alleges that she could have returned to work earlier, with different accommodations, had she known that she was going to be terminated.55 For example, Oncale could have arranged to work from home or for an AmericaCorps56 VISTA member to temporarily cover some of her job duties while she was absent.57 According to Oncale, she was terminated before she had the opportunity to discuss these potential accommodations with CASA.58
CASA replaced Oncale with Christine Aucoin, who was not disabled and had not taken leave pursuant to the FMLA.59 Soon thereafter, CASA also hired Anna Merlos, who is also not disabled, for the position of office manager.60 CASA never offered Oncale reinstatement to her previous position or the position of office manager, despite her being qualified to perform the job duties associated with both of these roles.61
Unlike Oncale, CASA permitted other employees not experiencing medical issues to take up to six months of unpaid leave without being terminated.62 Forexample, in late 2016, Jerri Thompson, then the office manager, took three months of leave after the passing of an immediate family member.63 In early 2017, she again took three months of leave, and CASA permitted her to return following this time off.64 In 2017, CASA provided Sulma Reyes, the advocate supervisor, with six months of leave following the birth of her children.65
After losing her job in December 2018, Oncale began to suffer increased anxiety and experienced depression for the first time.66 As a result, she is under the care of a psychiatrist and primary care physician, and she is prescribed medication for depression and anxiety.67 Oncale has also experienced a loss of income because she has...
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