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Martin v. Nebraska Methodist Health System, Inc.

United States District Court, D. Nebraska

February 21, 2019



          John M. Gerrard Chief United States District Judge

         The plaintiff, Kimberly L. Martin (formerly Kimberly Marx), brings this action alleging in her amended complaint (filing 1-2) claims of disability discrimination under both state and federal law (Neb. Rev. Stat. § 48-1104 and 42 U.S.C. § 12101 et seq.), retaliation pursuant to both state and federal law (Neb. Rev. Stat. § 48-1114 and 42 U.S.C. § 12203), violation of the Family Medical Leave Act (42 U.S.C. § 2601 et seq.), whistleblower retaliation (§ 48-1114), and violation of the Nebraska Wage Payment and Collection Act (Neb. Rev. Stat. § 48-1228 et seq.). The defendant, Nebraska Methodist Health, has moved the Court for summary judgment regarding all claims. (Filing 48) The Court will grant Methodist's motion and dismiss Martin's amended complaint.


         Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.


         Martin began working for Methodist on May 29, 2007. Filing 1-2 at 2. Between 2013 and her eventual separation from Methodist on November 16, 2016, Martin was a mammographer providing services at two of Methodist's imaging facilities. Filing 49 at 3. Beginning May 1, 2013, Sue Collins, the Imaging Services Leader, began directly supervising Martin and the other mammographers. Previously, Collins was the direct supervisor of Jeanine Halstead, and Halstead directly supervised Martin and the other mammographers. When Halstead's job was eliminated, Collins assumed her direct supervision responsibilities. Filing 55-8 at 3-4.

         Martin believes that she started having difficulties with Collins in 2012 when she raised concerns about the appearance of the walls at the new Women's Hospital Clinic. It was discovered that a discoloration on the walls was caused by an over-spray of alcohol from spray bottles used to clean the mammography equipment. Filing 55-5 at 39-44. Martin reported her concerns to Collins but said that Collins told her there wasn't money in the budget to repaint the walls. Sometime later, Martin addressed her concerns about the walls to individuals higher up the Methodist management chain from Collins, and the walls were then repainted. Although Martin cannot recall if Collins ever criticized her for going over Collins' head to upper management, Collins' supervisor, Jennifer Brase, told Martin that she should address such matters within the department. Filing 55-5 at 43.

         In December 2013, Martin again went outside Methodist's management chain to report what Martin believed was a violation of Methodist's policy. Martin's friend, Kathy Schultz, was concerned because the person filling Collins' supervisory role while Collins was on vacation was angry at Schultz when Schultz, contrary to the substitute supervisor's instruction, called a patient back for additional mammogram images. Filing 49 at 4. Martin suggested that Schultz should report her concern to the Clinic's administrator, which Martin then did on Schultz' behalf.

         On January 13, 2014, Collins prepared a Methodist misconduct documentation form regarding Martin. Filing 49-3. The report was critical that Martin "often goes outside of the Division and involves other MHS Administrators in issues that pertain to imaging." Collins also documented that she spoke with Martin about her cell phone use while in the clinic. Martin, however, believed that Collins was singling her out on the cell phone issue and began taking photos of other mammographers-Martin's coworkers-using their cell phones during clinic hours. Filing 55-5 at 212-16.

         In April 2014, issues arose when Martin requested family medical leave to care for her adult son who had broken his leg in a trampoline accident. Filing 55-5 at 73-74, 77-82. Leave was initially denied by the Director of Employee Relations because Martin's son was an adult. But that decision was rescinded and Martin was granted the requested leave. Although Martin claims that Collins later told her she would have to make up the time that she was out on family medical leave by being on-call (a comment Collins disputes), the hours were never actually made up. Filing 49 at 6-7.

         A meeting was held on September 2, 2014, between Collins and Martin to go over Collins' 2014 evaluation of Martin's job performance. Filing 55-5 at 164-75; filing 49-5. The evaluation form required both Martin and Collins to rate Martin's performance on a 4-point scale. Generally, Collins' ratings were equal to or exceeded Martin's self-ratings except in one category: Collins rated Martin lower regarding her workflow. Although the evaluation appears to be favorable overall, Martin perceived it to reflect a poor performance. Filing 1-2 at 2-3. Claiming that she did not trust Collins, Martin surreptitiously recorded the meeting on her phone. Filing 55-5 at 165-66; filing 55-4 exhibit B-3. The recording reflects that the tone of both Collins and Martin during the evaluation was cordial, if not friendly, and positive. Among the issues discussed were conflict resolution with others, and how at times Collins may not have understood Martin. Near the end of the recording (which is presumably the end of the meeting), Collins can be heard to say that she was there to help Martin with whatever she needed.

         In January 2015, Martin requested, and was granted, family medical leave regarding her younger son's medical conditions. In April she requested additional family medical leave concerning her own serious health condition, and again leave was granted. Filing 1-2 at 3. In late April 2015, Martin met with Lori Beaver, the Methodist Physicians Clinic administrator, regarding concerns about her job security. Filing 55-5 at 152. Martin claimed that she was being harassed and retaliated against for reporting violations of company policy. Filing 1-2 at 3. Martin played Beaver a portion of the recorded performance evaluation meeting with Collins. Filing 55-5 at 152-53. Beaver instructed Martin to contact Paula Pittman, Methodist's Director of Employee Relations, in the human resources department, which she did. Filing 55-7 at 2.

         Martin met with Pittman on May 6 and complained about the same job security issues she reported to Beaver. Filing 1-2 at 3. Martin played her recording of the meeting with Collins and claimed that Pittman's eyes got "as big as golf balls at part of the recording she heard." Filing 55-5 at 200. Martin also claims that Pittman agreed to keep their meeting confidential. Pittman's recollection is different. She recalls that Martin was concerned she was being forced to use paid time off when she would rather not draw from her paid time off bank, and had additional questions about how Collins was interpreting other Methodist policies. Filing 55-7 at 20. Pittman said that Collins portrayed the recording as a "smoking gun" of Collin's harassing behavior, but Pittman heard it differently. Filing 55-7 at 22-23. What Pittman heard was Collins sharing "many wonderful things" about Martin's performance, with just a few constructive criticisms. Pittman told Martin that she did not share her view of what the recording reflected and that there were some perception issues on Martin's part regarding her interactions with Collins.

         Martin requested and was given additional family medical leave in June 2015. She was absent for approximately three weeks. On July 28, Collins called Martin into her office to discuss a disciplinary action. Filing 1-2 at 3-4. Martin claims that the first thing Collins said to her when she walked into Collins' office was "do you have your cell phone on you?' Filing 55-5 at 210. Martin said she did, so Collins told her to put it in her locker. Martin believed that Pittman must have told Collins that she recorded their last meeting, and that by having her put her cell phone away Collins would prevent Martin from recording this meeting. But apparently Martin was prepared for just such an occurrence and when she put her cell phone away, she still had a different recording device that she used to surreptitiously record the meeting yet again. Filing 55-4 exhibit B-1. The recording reflects that this meeting was contentious.

         Collins presented Martin with a written warning that addressed issues concerning Martin's workflow, timely completion of quality control duties, Martin's unilateral decision to assist another staff member with bone density scans, and her continuing use of her cell phone during work hours. Filing 49-6 at 1. Although not included in the written warning text, other staff members had expressed their concerns to Collins about Martin and her behaviors. In the recording, Collins can be heard to say that Martin continually pushes the envelope and that she knows what she is doing. Martin can be heard to accuse Collins of creating a hostile work environment and that she was being singled out on the cell phone issue.

         Martin had been diagnosed with several mental health conditions- nearly all of which predated her problems with Collins. As of August 2015, Martin was receiving treatment for obsessive-compulsive disorder (OCD), attention-deficit hyperactivity disorder (ADHD), major depressive disorder, and generalized anxiety disorder. Filing 49-7 at 26. Without going into unnecessary detail, Martin's personal life was more chaotic than the difficulties she was experiencing at Methodist. On September 11, Martin submitted another family medical leave request regarding her own serious health conditions. Filing 55-4 at 3-4. She requested leave from September 14 to October 14, and her leave request was approved. On October 10, Martin requested an extension of her leave through November 14, which once again was approved. Filing 1-2 at 4; filing 55-7 at 63.

         On November 5, Martin's treating therapist, Kimberly Rist, provided a handwritten note to Methodist regarding Martin's capacity to return to work. Filing 49-7. The note provided that Martin "can return to work on November 9, 2015 with no restrictions except that she will require an accomadation (sic) of not being supervised by Sue Collins." The note was faxed to Methodist's Employee Health nurse Roberta Opperman, the person charged with implementing an employee's return to work. Filing 55-9 at 3, filing 55-5 at 228. Pittman also received a copy of the note, but not from Opperman.

         That same day, Pittman emailed Opperman informing her that Martin was released to return to work on November 9 with "the accommodation of not having to work for her current supervisor Sue Collins." Filing 55-9 at 48. Pittman wrote that Methodist was unable to accommodate Martin's request, and Pittman believed the request was not reasonable or practicable for Methodist to do. Opperman replied that she had met with Martin prior to receiving Pittman's email and knew about the therapist's return to work accommodation. Opperman also knew that the requested accommodation would not be accepted and told Martin as much. Martin, yet again, surreptitiously recorded her meeting with Opperman, and it is evident in listening to the recording that Martin was disappointed when Opperman told her about the accommodation denial. Filing 55-4 exhibit B-2. Pittman asked Opperman if Martin still planned to return if her supervisor wasn't changed, and Opperman replied that she didn't ask Martin that question. Filing 55-9 at 49.

         The return-to-work process at Methodist for someone with behavioral health issues included participation in the employee assistance program. Filing 55-9 at 9-10. Opperman scheduled Martin's first appointment with the employee assistance program for November 6. On November 9, Martin's employee assistance program counselor reported that Martin was safe to return to work but that she continued to assert that she could not return to work under Collins' supervision. Filing 55-9 at 14. Opperman met with Martin several times during the return to work process and directly asked her if there was anything else that Methodist could do to return her to work. Opperman said Martin repeatedly told her that she could not return to work if she had to report to Sue Collins. Filing 55-9 at 11-12.

         On November 6, attorney Heather Voegele emailed a letter to Pittman that demanded settlement of Martin's claims. Filing 55-1 at 15. Absent from Voegele's letter was any discussion of Martin's return to work. Instead, Voegele demanded a lump-sum settlement regarding Martin's damages and attorney fees, as well as a "mutually agreed upon reference letter and statement for reference inquiries, in order for her to pursue future employment." Filing 49-8 at 3. Voegele's letter seemed to indicate Martin did not intend to return to her job at Methodist. Pittman forwarded the letter to her superior and was told to "decline the offer and tell them to get in line." Filing 55-1 at 15.

         Pittman's response to Voegele was not as abrupt. On November 9, Pittman emailed Voegele and politely informed her that Methodist believed Martin's allegations were without merit and Methodist would reject the settlement demand. Filing 55-7 at 67. In addition, Pittman asked Voegele how the interactive process to return Martin to work at Methodist should unfold- would Voegele handle the discussion or would Martin prefer "to visit with HR and Employee Health directly." Voegele responded the next day by email but did not address Pittman's question about the interactive process. Instead, Voegele merely acknowledged knowing that the accommodation proposed by Martin's therapist was denied. Pittman emailed a reply within an hour, and again asked Voegele about engaging in the interactive process to return Martin to work, writing: "[i]f your client is willing to explore other options or engage further in the process she can call me at the below number." Filing 55-7 at 66.

         Voegele and Pittman exchanged more emails on November 11. Voegele first asked what accommodations Methodist would be willing to make. Filing 55-7 at 65. Pittman responded by again inviting Martin to engage in the interactive process, but she did not suggest alternate accommodations. Although Pittman invited Martin's participation in the interactive process to facilitate her return to work, it is clear that she and others at Methodist hoped Martin would not return. In an email dated November 5, Collins told her supervisor, Jennifer Brase, "It's been so nice the past 2 months for everyone"- referring to Martin's absence on family medical leave. Filing 55-1 at 17. Brase responded by speculating that "I don't think we will see her back." Collins' response was, "I hope you are right." On November 12, after Martin and Voegele had not indicated a willingness to engage in the interactive process, Pittman emailed Opperman to remind her that if Martin called, Methodist's position was that they offered and encouraged Martin's engagement in the interactive process. Filing 55-7 at 65.

         On November 13, Voegele emailed Pittman asking where things stood regarding Martin's employment. Filing 49-9 at 1. Pittman responded that she understood that Martin was released to return to work on November 16, and that Methodist was unable to change Martin's supervisor-an accommodation Methodist felt was unreasonable. Voegele emailed back: "Please explain to me how [Martin] can be cleared to come back to work when her accommodation is not being met?" Pittman answered via email: "The requested accommodation of a new supervisor is not reasonable. We have repeatedly indicated a willingness to interactively evaluate any other needed accommodations, and have been made to understand that none are requested." Apparently in response, Voegele prepared a correspondence to Pittman asserting that it was Martin's therapist who required her to no longer report to Collins, and since Methodist refused to accommodate Martin in a manner that would allow her to return to work, Methodist had constructively discharged Martin. ...

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