Wheeler v. Jackson Nat'l Life Ins. Co.

• Decision Date: 04 January 2016
• Docket Number: Civil No. 3:14-cv-0913
• Citation: 159 F.Supp.3d 828
• Parties: Josh Wheeler, Plaintiff, v. Jackson National Life Insurance Co. d/b/a Jackson National Life Distributors d/b/a Jackson National Financial Services, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

159 F.Supp.3d 828

Josh Wheeler, Plaintiff,

v.Jackson National Life Insurance Co. d/b/a Jackson National Life Distributors d/b/a Jackson National Financial Services, Defendant.

Civil No. 3:14-cv-0913

United States District Court, M.D. Tennessee, Nashville Division.

Filed January 4, 2016

Brian C. Winfrey, The Winfrey Firm, Nashville, TN, for Plaintiff.

Mary Leigh Pirtle, Robert W. Horton, Bass, Berry & Sims, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Pending before the court are three Rule 56 motions. The defendant Jackson National Life Insurance Co. (“JNL”) has filed a Motion for Summary Judgment (“JNL Motion”) seeking dismissal of all claims brought by the plaintiff Josh Wheeler (“Wheeler”) (Docket No. 32), to which Wheeler has filed a Response in opposition (Docket No. 46), and JNL has filed a Reply (Docket No. 59). Wheeler has also filed a Motion for Summary Judgment seeking judgment on all claims (Docket No. 37), to which JNL has filed a Response in opposition (Docket No. 53), and Wheeler has filed a Reply (Docket No. 63). Finally, JNL has filed a Supplemental Motion for Summary Judgment (Docket No. 71), to which Wheeler has filed a Response in opposition (Docket No. 76), and JNL has filed a Reply (Docket No. 83). For the following reasons, Wheeler's motion will be denied and JNL's motions will be granted.

BACKGROUND¹

This case involves claims by Wheeler against his former employer, JNL, for discrimination and retaliation based on disability. Wheeler brings this action for equitable relief and damages against JNL under (1) the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq . (“ADA”), as amended by the ADA Amendments Act of 2008; (2) the Tennessee Disability Act, Tenn. Code Ann. 8–50–103 (“TDA”); (3) Tennessee common law; (4) the Tennessee Public Protection Act, Tenn. Code Ann. § 50–1–304 (“TPPA”); and (5) the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. , (“FMLA”).²

I. Facts

Wheeler is a resident of Tennessee. JNL is a Delaware corporation with a principal place of business in Denver, Colorado and a corporate headquarters in Lansing, Michigan. JNL maintains an office in Franklin, Tennessee. JNL, through its subsidiaries, markets and wholesales a variety of annuities to independent and regional broker-dealers, “wirehouses,” independent agents and financial institutions (collectively, JNL's “customers”) through its External and Internal Wholesalers.

External Wholesalers meet face-to-face with JNL's customers. JNL pairs an External Wholesaler with an Internal Wholesaler (“IW”), the latter of whom provides in-office support via telephone or email, such as scheduling the External Wholesaler's business meetings, closing sales, and helping agents get the products and information they need. When IWs are not performing specific tasks for their assigned External Wholesaler, they are primarily responsible for logging into the telephone “Queue” to take inbound customer service calls. The Queue is essentially an overflow call system, where callers are put on hold if the IW they hope to reach is otherwise occupied. Rather than “parking” the caller on hold, calls are routed to the individuals who are logged into the Queue as available. Generally, the more individuals that are logged into the Queue and available to take overflow calls, the less time a JNL caller has to wait on hold before their call is answered. Employees are only able to log into the Queue at JNL's office because that system permits JNL to monitor and record their calls in compliance with the supervisory obligations required by the Financial Industry Regulatory Authority (“FINRA”) rules.

Wheeler was initially hired as an IW in JNL's Denver, Colorado office on April 7, 2008. JNL annually evaluated Wheeler as “Meets Expectations” or “Exceeds Expectations” each year that he worked as an IW. Wheeler took FMLA leave while employed in Denver for continuous leave related to bipolar disorder from August 11, 2009 through August 21, 2009 and for narcolepsy from February 10, 2010 through April 23, 2010. JNL recognized and regarded Wheeler as having a disability and health impairments. Wheeler's conditions include narcolepsy, bipolar disorder, anxiety, emotional deregulation, and depression. Wheeler's conditions are episodic in nature. As discussed infra , Wheeler's doctors have opined that episodes of some of Wheeler's conditions prevent him from working during an episode. Wheeler's doctors have not opined that he is incapable of work during time between episodic flare-ups.

At Wheeler's request, JNL transferred Wheeler to its Franklin, Tennessee office on May 7, 2011. Shortly after his transfer to Franklin, Wheeler provided JNL with FMLA Certification forms (“FMLA Certification”) that were completed by his psychiatrist, Dr. Steven Nyquist (“Dr. Nyquist”), and his psychologist, Dr. Mona Bennett (“Dr. Bennett”), both of whom were treating Wheeler for bipolar disorder, that stated that Wheeler would need leave from work to attend doctor's appointments for his bipolar disorder. On February 3, 2012, Wheeler provided JNL with an FMLA Certification from Dr. Bennett that indicated that Wheeler may need intermittent leave one to three days per month for flare-ups for his bipolar disorder in addition to his doctor's appointments.³

On March 9, 2012, Wheeler was hospitalized for his bipolar disorder, and his physicians indicated that he would require continuous leave through April 9, 2012. On April 9, 2012, Dr. Bennett urged JNL to consider offering Wheeler “a position that would provide reasonable balance and pacing of schedule to promote return of healthy emotional regulation” and stated that Wheeler would be unable to return to work until April 23, 2012. Wheeler had exhausted his FMLA leave as of April 5, 2012, and JNL extended Wheeler's unpaid general leave of absence through April 22, 2012.

Thereafter, in response to Wheeler's unpredictable attendance as an IW, JNL created a Floating Internal Wholesaler (“FIW”) position that permitted Wheeler to remain an IW, but relieved him of the usual practice that he be teamed with a specific External Wholesaler. JNL specifically took into account the episodic and unpredictable nature of Wheeler's health conditions in creating the FIW job for Wheeler. JNL reviewed and approved Wheeler's placement as an FIW in 2012 “as an accommodation.” An FIW's primary duty was to support the distribution team by being logged into the Queue to take overflow calls for the Internal Wholesalers to reduce caller wait time. The FIW job description clearly states that the “activity standards” of the position are to have six hours of Queue and/or talk time per day or three hours when making 35 logged calls. (Docket No. 35-1 at p. 104.) The job description explicitly states that “the [FIW] is expected to be on the phone and in the Queue during their working hours (7:30-4:30)...taking and responding to calls from the Queue is the number one priority.”⁴ (Id. ) The FIW was also responsible for serving as a backup for absent IWs.

According to Wheeler, his health-related absences had little to no impact on the production of the business unit in which he worked as an FIW, and Wheeler's supervisors did not need to re-assign job tasks, hire temporary workers, or burden other associates with Wheeler's work when he was not present. JNL avers, however, that, while Wheeler's absences had little to no impact on the production of the External Wholesalers, since Wheeler was not assigned to an External Wholesaler, Wheeler's absences caused the Queue to back up because there was no one assigned to cover for him if he missed work, meaning that customers waited on hold longer and that some sales may not have been closed as a result.⁵ In addition, HR Generalist Heather Robinson (“Robinson”) explained to Wheeler that his job responsibilities were “critical” to JNL's business⁶ and, in his 2012 performance evaluation, Wheeler's former immediate supervisor, Desk Director Kyle Anthony (“Anthony”), told Wheeler that his role was an “important one” and that the team relied upon him for correct information. Anthony also testified that he had to assign another IW to cover Wheeler's tasks when Wheeler was absent because there was no one else to perform his job.

On September 14, 2012, Wheeler was hospitalized for bipolar disorder. As of September 14, 2012, Wheeler had exhausted his rolling twelve-week allotment of FMLA leave. JNL agreed to accommodate Wheeler with an unpaid general leave of absence from September 14, 2012 through October 26, 2012, which was the date his rolling twelve-week FMLA leave balance would replenish. JNL granted Wheeler FMLA leave from October 26, 2012 until he was able to return to work on November 26, 2012. In total, therefore, JNL granted Wheeler two general leaves of absence in 2012.⁷

Wheeler received a performance evaluation of “Meets Expectations” for 2012. This covered part of the time he worked as an IW and part of the time he worked as an FIW. Wheeler did not subsequently receive a performance evaluation for any part of 2013.

After missing five days of work on an intermittent basis in early 2013, Wheeler requested intermittent FMLA leave. On March 21, 2013, JNL provided to Wheeler a Notice of Eligibility and Rights & Responsibilities under the FMLA (“FMLA Eligibility Notice”).⁸ Dr. Bennett provided certification for the intermittent leave in April 2013, but he did not estimate the frequency or period of intermittent leave on this FMLA Certification. JNL approved Wheeler for intermittent FMLA leave for the period of March 14, 2013 through June 14, 2013. JNL advised Wheeler that, if he needed to call in due to his serious health condition, he had to state at the time of the call-in that his time away was due to the FMLA condition.⁹ Wheeler missed four additional days for intermittent leave during March and April of 2013.

On April 24, 2013, Anthony left employment with JNL. On May 17, 2013, ...