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Bornhauser v. Cibola General Hospital

United States District Court, D. New Mexico

May 30, 2017



         THIS 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 granted.


         Plaintiff 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.

         Plaintiff 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.

         The 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).

         I. Facts[1]

         Defendants 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”).

         Plaintiff 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.

         A. Plaintiff's Work Performance

         Defendants present facts showing that Plaintiff's job was in jeopardy.

         On 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.

         On 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 before.

         The 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.”

         B. Termination of Employment

         By 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.

         The 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, 2014.

         Later 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.”).

         Plaintiff 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.

         Plaintiff 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 ...

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