United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
MATTER comes before the Court upon Defendants' Motion for
Summary Judgment, filed April 4, 2017 (Doc. 30). Plaintiff is
proceeding pro se. Having reviewed the parties'
briefs and the applicable law, the Court finds that
Defendants' motion is well-taken and, therefore, is
Sandra Bornhauser is suing her former employer, Cibola
General Hospital (“Cibola Hospital” or “the
Hospital”) under the Family Medical Leave Act
(“FMLA”), 29 U.S.C. §2615(a) and Americans
With Disabilities Act (“ADA”), 42 U.S.C.
§12101. Ms. Bornhauser worked as a medical coder
remotely from her home in California since before 2013. A
coder is someone who takes a healthcare provider's
patient notes and charts and turns them into numeric data
used for billing purposes. According to Defendants, Plaintiff
had been put on notice during October 2014 that her job
performance was deficient due to a high error rate in her
work. The Hospital decided to terminate her and a phone call
with Plaintiff was arranged for October 23, 2014. However,
before the phone call took place, Plaintiff announced that
she intended to take medical leave. The Hospital refrained
from discharging Plaintiff at that time and placed her on
medical leave per her request, but when her leave expired,
Plaintiff did not return to work. The Hospital considers
Plaintiff's employment to be over for lawful reasons.
claims that she suffers from a myriad of disabilities and
conditions including but not limited to the following: PTSD,
generalized anxiety, panic disorder, depression, panic
attacks, right arm rotator cuff tear, right shoulder ACL
tear, large loose foreign bodies, plantar nerve lesion in
right foot, chondromalacia patellae, etc. see Doc.
13 (Joint Status Rep't) at 2-3. Plaintiff contends that
Defendants discriminated against her on the basis of her
disabilities because she worked a full day on October 22,
2014, and received no notice of termination until after she
submitted a medical certificate on October 23, 2014.
Amended Complaint (Doc. 7) has two counts, asserted against
all Defendants: Violation of Title II of the ADA (Count I)
and Violation of the FMLA (Count II).
offer several pages of facts. The Court deems these facts to
be undisputed because Plaintiff offers no evidence or
testimony challenging those facts, as required under
Fed.R.Civ.P.56(c)(1)(A). Instead, Plaintiff offers a section
entitled “Undisputed Facts” which mirror the
facts presented by Defendants. For example, Plaintiff's
Undisputed Facts 3-9 describe Plaintiff's poor work
performance and notes that Ms. Satterley decided by October
22, 2014 that it was time to end Plaintiff's employment
because of Plaintiff's high level of coding errors.
Plaintiff also states in this section of facts that Ms.
Satterley “decided to refrain from discharging
Plaintiff and decided to honor her request for time
off.” Pltff's “Undisp. Fact” 14.
Plaintiff has therefore conceded all the material facts
presented by Defendant and rests her case on what the Court
considers to be her own interpretations of these facts and
irrelevant miscellaneous arguments, which the Court will
discuss below. As a result, Defendants' facts are deemed
undisputed. See D.N.M. LR-Civ. 56.1(b) (facts in
dispute must be numbered, non-movant must refer with
particularity to the part of record upon which nonmovant
relies to dispute a fact, and “[a]ll material
facts” that movant sets forth “will be deemed
undisputed unless specifically controverted”).
also failed to comply with several local rules of this Court.
For example, she attached 281 pages of exhibits to her
response, which is a number well in excess of the 50-page
limit, nor did she seek an extension of this limit from
opposing party. See D.N.M.LR-Civ. 10.5. None of
these exhibits are referenced in Plaintiff's brief or
highlighted as required under this Court's local rules.
See D.N.M.LR-Civ. 10.5. While the Court affords pro
se litigants some leeway, they are still expected to follow
the rules. Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005). This Court
does not intend to comb through the voluminous exhibits
presented by Plaintiff to make her case for her, particularly
when she has conceded the material facts.
Plaintiff's Work Performance
present facts showing that Plaintiff's job was in
October 1, 2014, Plaintiff's supervisor and the Health
Management Director of the Hospital, Annette
(“Annie”) Satterley, notified Plaintiff and the
other two coders working for Cibola that they were expected
to meet an average rate of 10 minutes per chart. While
passing the coding test was not a job requirement, Plaintiff
had taken the outpatient coding test three times and failed
it. She took the test once in 2013 and twice in 2014, and for
at least one of those administrations, Plaintiff took a
preparation course before the exam.
October 9 and 10, 2014, Ms. Satterley conducted an audit and
found that Plaintiff's accuracy rate was 70% when it
needed to be 95% or greater. Ms. Satterley told Plaintiff she
would need to put her on another performance improvement
plan. Plaintiff had been on performance improvement plans
October 10, 2014 performance improvement plan (described on a
form entitled “Employee Warning Record”)
reiterated the 95% accuracy standard required for all coders
and noted that Plaintiff was at 70% on the recent audit. On
October 21, 2014, a productivity concern arose when Ms.
Satterley found that Plaintiff had taken 5.75 hours to
complete 10 charts, which was outside of the hospital
mandate/expectations and beyond the 10 minute per chart
expectation that the coders had been told about on October 1,
2014. At the same time, Ms. Satterley was continuing to audit
files for accuracy. In an email on the afternoon of October
21, 2014, Ms. Satterley informed Plaintiff that she found a
large amount of errors and that Ms. Satterley needed to make
sure Plaintiff understood “that this level of errors
can lead up to and include termination.”
Termination of Employment
October 22, 2014, Ms. Satterley decided that it was time to
end Plaintiff's employment with Cibola. Ms. Satterley
called Plaintiff in the morning of October 23. Plaintiff did
not answer. Ms. Satterley left a message, saying to return
the call to Sheila Cox's office to discuss the paperwork
Plaintiff had submitted earlier in the morning.
paperwork at issue was a “Work Restrictions Form”
that Plaintiff had obtained from her physician, Dr. Rama
Thiru Pathi, on October 22, 2014 at 2:24 PM. Plaintiff
emailed that form to Ms. Satterley on October 23, 2014 early
in the morning, before Ms. Satterley called her. The October
22 Work Restrictions Form indicated that Plaintiff needed to
be off work until November 10, 2014, for a rotator cuff tear
from an injury the month before. Plaintiff had a previously
scheduled and approved vacation from November 1 through 10,
in the day on October 23, Plaintiff went to a friend's
house and placed the call to Ms. Cox on speaker phone. Ms.
Cox first said she needed to get Ms. Satterley. Plaintiff
responded by saying that because she had submitted medical
certification, the matter involved only Ms. Cox as the Human
Resource Director and contact with Ms. Satterley was
unnecessary until her return to work. Ms. Cox fetched Ms.
Satterley anyway. When Ms. Satterley came on the line,
according to Plaintiff, she told Plaintiff she was
terminating her employment as of the day before (what
Plaintiff refers to as “backdating, ”
see Ex. A at 110:23-25: “Well, you can't
backdate a termination.”).
responded by questioning why she hadn't been told earlier
and why there wasn't a final check ready, with a
certified letter asking for the return of equipment.
Plaintiff asserted that in any event she could not be
terminated on “medical cert.” At that point,
Plaintiff said she wasn't going to deal with this
anymore, that she was “starting to get into a panic
mode” and had to get off the phone, so she hung up.
That was the end of the call on October 23, 2014. Ms.
Satterley decided to refrain from discharging Plaintiff and
decided to honor her request for time off. The only dispute
offered by Plaintiff in these facts is that she claims that
Ms. Satterley decided to terminate her after she requested
medical leave. Doc. 35 at 16. However, Plaintiff offers no
facts to suggest this, and Plaintiff does not dispute any of
the other facts regarding her poor work performance, or the
fact that she did take the full FMLA leave after October 23,
2014 as recommended by her doctor. Thus, the undisputed facts
bear out Defendants' position that the Hospital decided
to terminate Plaintiff but refrained from doing so after her
doctor recommended a medical leave of absence.
views it as a coincidence that Ms. Satterley decided to end
Plaintiff's employment on the same day that Plaintiff
obtained a request from her doctor to be out on medical
leave. Sometime after November 1, 2014, Ms. Cox called
Plaintiff and asked Plaintiff to fill out FMLA leave forms.
Plaintiff had already obtained those forms or was in the
process of obtaining ...