Giles v. Transit Employees Federal Credit Union

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2015 Decided July 14, 2015
No. 14-7055
LORIE A. GILES,
APPELLANT
v.
TRANSIT EMPLOYEES FEDERAL CREDIT UNION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01103)
Richard P. Goldberg argued the cause and filed the briefs
for appellant.
Neil S. Hyman argued the cause and filed the brief for
appellee.
Before: BROWN, SRINIVASAN and WILKINS, Circuit
Judges.
Opinion for the court by Circuit Judge Brown.
Brown, Circuit Judge: Lorie Giles appeals the district
court’s grant of summary judgment to her former employer
Transit Employees Federal Credit Union (“TEFCU”) in this
2
wrongful termination case. Because no reasonable jury could
infer TEFCU dismissed Giles because of the costs associated
with insuring her, we affirm the district court’s judgment.
I
Lorie Giles worked at TEFCU for almost four years. She
began her tenure in December 2005 as a temporary employee
and became a full-time receptionist in September 2006. After
becoming a full-time employee, Giles enrolled in TEFCU’s
CareFirst BlueCross BlueShield (“CareFirst”) health
insurance. She selected the single employee, preferred
provider organization (“PPO”) plan known as the “Blue
Preferred Option 1” plan. Giles suffers from Multiple
Sclerosis (“MS”) and as treatment received expensive
monthly outpatient drug infusions from 2007 to October
2009. She took some sick leave to attend her medical
appointments but had no prolonged absences.
In 2008, Giles was involved in a couple of altercations
with TEFCU customers. On July 9, 2008, she adamantly
insisted a customer return a pen, even as the customer
explained it was actually his pen. Endia Robinson, TEFCU’s
Assistant Member Service Manager and one of Giles’s
supervisors, documented the incident and verbally warned
Giles her behavior was unacceptable. On October 1, 2008,
Giles confronted a customer for entering the building through
the wrong door and attempted to make the customer exit and
properly reenter. In response, Robinson issued a written
warning and suspended Giles for two days without pay. In
her performance evaluation for 2008, Giles received an
overall rating of Partially Achieved Requirements (“PAR”)—
the second lowest of four possible ratings—and received a
rating of Less than Expected (“LTE”)—the lowest possible
rating—for her specific receptionist duties. Giles’s role at
3
TEFCU changed in October 2008 when she became a
scanning specialist. In July 2009, Giles was again evaluated
and received an overall rating of Fully Achieved
Requirements (“FAR”)—the second-highest rating. However
she was given a PAR for her record maintenance tasks.
Robinson noted Giles had improperly filed documents, stating
“There is a large amount of documentation that is currently
filed under the incorrect account number.” J.A. 541.
During the time Giles was a participant in TEFCU’s
health insurance plan, TEFCU paid 80 percent of each
participant’s monthly premium, and the participants were
individually responsible for the remaining 20 percent.
CareFirst initiated a plan renewal and recalculated the
premium rate annually. In doing so, it explained “renewal
rates are calculated using the community claims experience
and the average group age, projected forward with a health
care inflation factor. In addition, factors such as prescription
drug utilization, legislative mandates and provider utilization
play key roles in determining health care costs.” J.A. 344.
From 2007 to 2009, the monthly premium for the Blue
Preferred Option 1 plan rose. In August 2007, it went from
$286 to $308 per month. In August 2008, the premium
changed to $375 per month, and in August 2009 it increased
to $449 per month.
In November 2009, Rita Smith replaced Percys Felder as
TEFCU’s chief executive officer (“CEO”). Smith terminated
Giles on November 24, 2009. Giles did not exercise her right
under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) to temporarily continue her health benefits,
stating she could not afford to do so. Felder testified that
beginning in May 2010, TEFCU used temporary employees
and an intern to complete the scanning tasks Giles had
previously performed. In July 2010, the monthly premium for
4
the single employee PPO plan decreased to $437 per month.
After exhausting administrative remedies before the Equal
Employment Opportunity Commission (“EEOC”), Giles filed
this action in district court alleging wrongful termination in
violation of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101 et seq., the District of Columbia
Human Rights Act (“DCHRA”), D.C. CODE § 2-1401.01 et
seq., and Section 510 of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1140. 1 The
thrust of Giles’s claims is that the cost of treating her MS was
causing the monthly premium for the Blue Preferred Option 1
plan to rise and that TEFCU dismissed her to reduce its health
care costs.
After discovery, the district court granted TEFCU’s
motion for summary judgment, finding Giles failed to put
forth sufficient evidence of her claims. Giles v. Transit Emps.
Credit Union, 32 F. Supp. 3d 66, 68 (D.D.C. 2014). The
district court further found that even if Giles’s allegations
were true, TEFCU had not violated the ADA. Id. at 73. The
district court reasoned that terminating an employee for the
costs associated with his or her health care is not termination
for a disability. Id. Therefore, the district court explained,
such a termination falls outside of the purview of the ADA,
which forbids terminations motivated by an employee’s
disability. Id. Finally, the district court denied Giles’s
motion for discovery sanctions, in which she claimed any
inadequacies in the evidence were caused by “TEFCU’s
spoliation of health-insurance invoices and communications.”
1
Giles filed her suit pro se and initially raised only the ADA claim.
After the district court appointed pro bono counsel, Giles amended
her complaint to include the DCHRA and ERISA claims. She also
raised a claim of wrongful discharge in violation of public policy,
which the district court dismissed on October 10, 2012 and is not at
issue here.
5
Id. at 74 n.3. The motion was moot in light of the sufficient
documentation of TEFCU’s health insurance premiums,
which was provided by CareFirst. Id. This appeal followed.
II
We review the district court’s grant of summary
judgment de novo. Adeyemi v. District of Columbia, 525 F.3d
1222, 1225 (D.C. Cir. 2008). Summary judgment is
warranted “only if, viewing the evidence in the light most
favorable to [Giles] and giving [her] the benefit of all
permissible inferences, we conclude that no reasonable jury
could reach a verdict in [her] favor.” Jones v. Bernanke, 557
F.3d 670, 674 (D.C. Cir. 2009).
Under the ADA, no covered employer “shall discriminate
against a qualified individual on the basis of disability in
regard to . . . [the] discharge of employees . . . and [the]
privileges of employment.” 42 U.S.C. § 12112(a). The
DCHRA similarly forbids covered employers from
terminating any individual “wholly or partially for a
discriminatory reason based upon the actual or perceived . . .
disability . . . of any individual.” D.C. CODE § 2-1402.11(a).
When evaluating claims brought under the DCHRA,
“decisions construing the ADA [are considered] persuasive.”
Grant v. May Dept. Stores Co., 786 A.2d 580, 583–84 (D.C.
2001); see also Hunt v. District of Columbia, 66 A.3d 987,
990 (D.C. 2013) (“Our decisions under the DCHRA . . .
effectively incorporate judicial construction of related anti-
discrimination provisions of the [ADA].”). To demonstrate
discrimination in violation of the ADA or the DCHRA, the
plaintiff “must prove that he had a disability within the
meaning of the ADA, that he was ‘qualified’ for the position
with or without a reasonable accommodation, and that he
suffered an adverse employment action because of his
6
disability.” Duncan v. Washington Metro Area Transit Auth.,
240 F.3d 1110, 1114 (D.C. Cir. 2001) (internal quotation
marks omitted).
Pursuant to Section 510 of the ERISA, it is unlawful,
inter alia, to “terminate an employee either in retaliation for
using a qualified employee health plan or in order to interfere
with the employee’s use of that plan.” Gioia v. Forbes Media
LLC, 501 F. App’x. 52, 54 (2d Cir. 2012) (summarizing 29
U.S.C. § 1140). To prevail on a Section 510 claim, a plaintiff
must demonstrate the employer specifically intended to
engage in prohibited activity. Barnhardt v. Open Harvest
Cooperative, 742 F.3d 365, 369 (8th Cir. 2014). “[N]o action
lies where the alleged loss of rights is a mere consequence, as
opposed to a motivating factor behind the termination.” Dytrt
v. Mountain States Tel. & Tel. Co., 921 F.2d 889, 896 (9th
Cir. 1990). “Otherwise, every employee discharged by a
company with an ERISA plan would have a claim under
§ 510.” Majewski v. Automatic Data Processing, Inc., 274
F.3d 1106, 1113 (6th Cir. 2001).
In a case such as this, where the plaintiff lacks direct
evidence of discrimination, ADA, DCHRA, and ERISA
claims are each evaluated under the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See, e.g., Adeyemi, 525 F.3d at 1226 (applying
McDonnell Douglas framework to an ADA claim);
Ottenberg’s Bakers, Inc. v. D.C. Comm’n on Human Rights,
917 A.2d 1094, 1102 (D.C. 2007) (“In reviewing
discrimination cases under the [DCHRA], we apply the
familiar burden-shifting test set forth by the Supreme Court in
McDonnell Douglas . . . .”); Smith v. District of Columbia,
430 F.3d 450, 455 (D.C. Cir. 2005) (observing “[c]ourts of
appeals routinely apply the same standards to evaluate Title
VII claims as they do ADA claims, ADEA claims, and even
7
ERISA claims.”) (citation omitted); Barnhardt, 742 F.3d at
369 (“A plaintiff can establish a § 510 [ERISA] interference
claim either by direct evidence of a specific intent to interfere
with ERISA benefits or through the McDonnell Douglas
burden-shifting framework.”); Dister v. Cont’l Grp., Inc., 859
F.2d 1108, 1112 (2d Cir. 1988) (“[T]he McDonnell Douglas
presumptions and shifting burdens of production are . . .
appropriate in the context of discriminatory discharge cases
brought under § 510 of ERISA.”).
Under the framework, the plaintiff bears the initial
burden of demonstrating a prima facie case of discrimination.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53
(1981). The burden then shifts to the employer to set forth a
legitimate, non-discriminatory reason for the challenged
action. Id. However, as we explained in Brady v. Office of
Sergeant at Arms, at the summary judgment stage, “once the
employer asserts a legitimate, non-discriminatory reason [for
its challenged action], the question whether the employee
actually made out a prima facie case is ‘no longer relevant’
and thus ‘disappear[s]’ and ‘drops out of the picture.’” 520
F.3d 490, 493 (D.C. Cir. 2008) (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 511 (1993) and Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)
(alteration in original)). At that point, the only remaining
question is “whether the plaintiff produced sufficient evidence
for a reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason and that the
employer intentionally discriminated against the plaintiff on a
prohibited basis.” Adeyemi, 525 F.3d at 1226; see also
Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014)
(stating that after the employer asserts a legitimate, non-
discriminatory reason for its action, “we proceed directly to
the heart of the matter”).
8
III
A
Here, TEFCU asserted a legitimate, non-discriminatory
reason for terminating Giles: she was a poor employee.
TEFCU points to Giles’s 2008 performance review, in which
she received a LTE for her specific duties as a receptionist
after being involved in altercations with members. TEFCU
claims it moved Giles to the scanning position to minimize
her interaction with customers. Felder, who served as
TEFCU’s CEO at the time Giles’s position was changed,
testified that Giles had not been a good employee and that
Felder decided to change Giles’s role in an effort to “keep her
on board” instead of firing her. J.A. 77. TEFCU next cites
Giles’s 2009 performance review, explaining Giles was rated
only a PAR for duties associated with the scanning position
and that the evaluation identifies several mistakes Giles made
including improperly indexing work and incorrectly recording
documents.
Smith and Felder testified that shortly after Smith took
the helm on November 19, 2009, the two had a conversation
in which Felder recommended Smith fire certain employees,
including Giles. Felder stated she had considered Giles’s past
performance reviews before recommending that she be let go.
Felder testified that she and Smith discussed both Giles’s past
performance, which Felder considered to be inadequate and
below average, and a mistake Giles made in which documents
were scanned to the wrong customers’ accounts. Felder could
not recall the precise timing of this mistake, and during her
deposition she first posited that it took place in the weeks
leading up to Giles’s termination in November 2009 but later
speculated it came to light during the second quarter of 2009.
Recounting the discussion with Felder, Smith said the two
9
decided Giles would not “work out long term with TEFCU”
and that Felder’s account of Giles’s scanning mistake was
what “vividly st[uck] out” to her. J.A. 230. Smith decided to
terminate Giles and informed her on November 24, 2009.
B
Given TEFCU’s proffer, we turn to whether Giles
“produced evidence sufficient for a reasonable jury to find
that [TEFCU’s] stated reason was not the actual reason” and
that the decision to dismiss Giles was actually motivated by a
perception that the health insurance claims related to her MS
treatment were causing the premium to increase. Brady, 520
F.3d at 495. In doing so, we consider “all relevant evidence”
presented by both Giles and TEFCU. Id.Giles argues she was not a poor performer and therefore
TEFCU’s asserted reason for her termination is pretext. She
claims her move to the scanning specialist position was
actually a promotion. Further, she points to her July 2009
performance review in which she received an overall rating of
FAR, the second-best rating. In some cases, a positive
evaluation is inconsistent with an employer’s assertion of
poor performance and therefore suggests pretext. See
Erickson v. Farmland Indus., Inc., 271 F.3d 718, 728 (8th Cir.
2001) (“A history of positive performance evaluations can be
powerful evidence of satisfactory performance.”). Here,
however, the review is consistent with Felder and Smith’s
testimony that Giles performed the record maintenance duties
associated with her scanning specialist position inadequately,
despite her overall high rating. TEFCU was free to dismiss
Giles based on these perceived performance deficiencies, and
courts do not serve as “super-personnel department[s] that
reexamine[]” whether such a decision was wise, sound, or
fair. Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006).
10
Giles relies on the sworn statement of Stefan Bradham,
who worked for TEFCU at the same time as she. 2 Bradham
said Giles’s “performance was consistently very good
throughout 2009.” J.A. 551. Giles does not allege, however,
that Bradham had a role in deciding whether she should
continue as a TEFCU employee. Nor does Bradham claim to
have communicated his positive view of Giles’s performance
to Felder or Smith. 3 His statement is therefore of
exceptionally limited relevance. Cf. Vatel v. Alliance of Auto
Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011) (explaining that
in evaluating whether an employee’s asserted reason is
pretext, “it is the perception of the decision maker which is
relevant”) (quoting Hawkins v. PepsiCo, Inc., 203 F.3d 274,
280 (4th Cir. 2000)); DeJarnette v. Corning Inc., 133 F.3d
293, 299 (4th Cir. 1998) (“[T]hat plaintiff’s coworkers ‘may
have thought that [she] did a good job, or that [she] did not
‘deserve’ [to be discharged], is close to irrelevant.’”) (quoting
Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235
(4th Cir. 1991) (alterations in original)). Bradham’s statement
does not demonstrate the key players in the decision—Smith
and Felder—actually believed Giles performed her duties
adequately, and there is ample evidence for a reasonable jury
to conclude they did not.
Giles also denies that she filed documents to the incorrect
TEFCU customers’ accounts, the error Felder and Smith
claimed weighed heavily in the decision to terminate her.
2
Whether Bradham was one of Giles’s supervisors is a disputed
fact. Giles asserts he was, but TEFCU argues to the contrary and
points to Giles’s deposition testimony in which she stated she was
supervised by Percys Felder, Tanya Billups, George Davis, Endia
Robinson, and Alicia Brown, with no mention of Bradham.
3
To the contrary, a May 12 2009 email from Shirley Broder,
TEFCU’s human resources consultant, and Felder stated “Stefan is
having some issues with [Giles’s] performance . . . .” J.A. 1225.
11
While Felder testified she could not recall the precise timing
of the alleged mistake, Giles clings to Felder’s speculation it
could have occurred in the weeks leading up to Giles’s
termination. She then argues a lack of documentation of the
incident suggests it did not happen. Felder indeed testified
the incident was documented in an e-mail and said TEFCU
procedures would require the incident to be documented on a
paper that Giles would have been asked to sign.
Documentation of a scanning mistake in the weeks
immediately before Giles’s termination does not appear in the
record.
But Giles ignores the portion of Felder’s testimony in
which she also surmised the mistake could have been
discovered in the second quarter of 2009. This undermines
Giles’s position because a documented incident that
corroborates Felder’s testimony is part of the record. In
Giles’s July 2009 performance evaluation, Robinson noted,
“There is a large amount of documentation that is currently
filed under the incorrect account number. It is important that
this does not continue to happen because it makes account
research much more difficult and defeats the purpose of us
scanning the documents.” J.A. 541. Giles cannot create a
dispute of material fact by distorting testimony and then
complaining of a lack of documentation to support her
garbled narrative.
Next, Giles relies on Bradham’s declaration that he was,
“aware of no serious mistake that Ms. Giles made in her
scanning duties in 2009” and that he does “not believe that
such a mistake took place.” J.A. 551. Bradham explains he
did not receive “an e-mail or other written notice or
documentation” of any serious scanning mistake. J.A. 551.
But Bradham cites the July 2009 performance evaluation as
proof of Giles’s good work performance, and that same
12
evaluation noted Giles had improperly filed scanned
documents.
Even if a jury were to credit Bradham—perhaps by
inferring either that he did not believe the scanning error
actually occurred despite its documentation in the evaluation
or that he did not believe it was “serious”—his statement does
not reach the heart of the issue: whether Felder and Smith
believed Giles had made a mistake at the time Smith decided
to dismiss her. See Brady, 520 F.3d at 495 (“[A]n employer’s
action may be based on a good faith belief, even though the
reason may turn out in retrospect to be mistaken or false.”)
(quoting 1 LEX K. LARSON, EMPLOYMENT DISCRIMINATION
§ 8.04, at 8-73 (2d ed. 2007) (alteration in original)). While
Giles has set forth no evidence suggesting Felder and Smith
did not think the error occurred or that it was not significant,
Felder’s testimony that she reviewed Giles’s performance
evaluations before recommending she be terminated and the
notation in the July 2009 evaluation of the improper filing,
which described the error as significant provide abundant
grounds for a reasonable jury to conclude they did.
Giles further attempts to discredit TEFCU’s asserted
reason by showing TEFCU’s explanation of her termination
has varied over time. “[S]hifting and inconsistent
justifications are ‘probative of pretext.’” Geleta v. Gray, 645
F.3d 408, 413–14 (D.C. Cir. 2011) (quoting EEOC v. Sears
Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001)); see also
Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st
Cir. 2000) (“[W]hen a company, at different times, gives
different and arguably inconsistent explanations, a jury may
infer that the articulated reasons are pretextual.”).
In a January 2010 statement submitted to the EEOC,
TEFCU noted Giles’s PAR rating for her scanning specialist
13
duties in the July 2009 performance review and catalogued
Giles’s altercations with customers. It then stated the decision
to lay off Giles was “part of a general organizational review”
and was “made for business reasons only, as the duties for
which Ms. Giles was primarily responsible no longer require a
full-time TEFCU employee.” J.A. 554. In its motion for
summary judgment filed below, TEFCU maintained it
dismissed Giles because she was performing poorly and
because eliminating substandard employees was part of a
strategy TEFCU was pursuing at the time to cut costs and
restore the company to profitability. On appeal, TEFCU
asserts only that Giles was terminated because she was a poor
employee with Felder and Smith stating the scanning mistake
was the most important performance issue.
Over time, TEFCU went from arguing before the EEOC
that the decision to terminate Giles was made only for a non-
performance related reason to now claiming poor
performance is the sole reason. Further, TEFCU did not
abandon its claim of a cost-cutting reorganization until after
Smith was deposed and specifically denounced such a
rationale. A reasonable jury could find TEFCU’s
explanations to be inconsistent and suspicious and determine
TEFCU’s most recent justification is “unworthy of credence.”
Reeves, 530 U.S. at 143. In granting Giles all permissible
inferences, we find therefore she has made a sufficient—
albeit weak—rebuttal from which a reasonable jury could
conclude TEFCU’s asserted reason is not the real reason she
was terminated.
Giles maintains that if a reasonable jury could disbelieve
TEFCU’s proffered explanation, we must reverse the district
court’s grant of summary judgment. While “[a]n employer’s
changing rationale for making an adverse employment
decision can be evidence of pretext,” Geleta, 645 F.3d at 413–
14
14 (quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d
1160, 1167 (6th Cir. 1996)), there are “instances where,
although the plaintiff has . . . set forth sufficient evidence to
reject the defendant’s explanation, no rational factfinder could
conclude that the action was discriminatory.” Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 148
(2000); see also Aka v. Washington Hosp. Ctr., 156 F.3d
1284, 1291 (D.C. Cir. 1998) (en banc) (“[I]n some instances .
. . the fact that there are material questions as to whether the
employer has given the real explanation will not suffice to
support an inference of discrimination.”). This is because
“the plaintiff’s attack on the employer’s explanation must
always be assessed in light of the total circumstances of the
case.” Aka, 156 F.3d at 1292; see also Reeves, 530 U.S. at148–49 (“Whether judgment as a matter of law is appropriate
in any particular case will depend on a number of factors.
Those include the strength of the plaintiff’s prima facie case,
the probative value of the proof that the employer’s
explanation is false, and any other evidence that supports the
employer’s case and that properly may be considered . . . .”).
A jury may reasonably disbelieve TEFCU’s assertion that
Giles was terminated solely for poor performance with a
specific emphasis on a scanning mistake, but no reasonable
jury could conclude the real reason for her discharge was that
TEFCU believed her medical expenses were driving up the
insurance premium. There is simply no evidence Giles’s
insurance claims had any effect on the premium or that Smith
or Felder thought they did or could. The record therefore
does not permit an inference that the cost of insuring Giles
was a motivating factor in the decision to terminate her.
First, TEFCU argues it did not know—and had no way of
knowing—what Giles’s treatments cost. As TEFCU was not
self-insured, CareFirst paid Giles’s medical bills. TEFCU
15
claims—and Giles does not dispute—that privacy laws
forbade it from receiving information about the amount of
employees’ health insurance claims. Consistent with this
argument, there is no evidence that any person associated with
TEFCU investigated or reviewed the costs of Giles’s
treatment or those of any other individual. Cf. Dewitt v.
Proctor Hosp., 517 F.3d 944, 948 (7th Cir. 2008) (self-
insured employer received “stop-loss reports” identifying
employees with high claims); Trujillo v. PacifiCorp, 524 F.3d
1149, 1152 (10th Cir. 2008) (self-insured employer reviewed
health care costs and designated certain claims as “high-
dollar”). Giles relies on Felder’s acknowledgement that Giles
told her the infusion treatments were “costly.” J.A. 118–19.
That Felder had some general awareness Giles was receiving
“costly” medical treatment does not demonstrate Felder
thought the treatments were so costly as to be a concern to
TEFCU.
Further, Giles lacks evidence supporting her contention
that the costs of her medical treatment caused CareFirst to
raise the monthly premium for the Blue Preferred Option 1
plan. She relies heavily on language contained in the letter
CareFirst sent to TEFCU each year regarding the renewal
process stating “factors such as prescription drug utilization,
legislative mandates and provider utilization play key roles in
determining healthcare costs.” J.A. 344. However, the
premium for the Blue Preferred Option 1 plan was calculated
using a community rating methodology 4 and therefore derived
from the claims experience of not just TEFCU but from “all
4
Generally, a “[c]ommunity rating establishes premiums for
uniform benefit programs based on the average cost of all insureds
in a given geographic area. . . . Some modified forms of community
rating permit the recognition of the age and sex of the members of
groups that it covers.” 2 JEFFREY D. MAMORSKY, EMPLOYEE
BENEFITS HANDBOOK § 46:80 (2014).
16
small groups located in the District of Columbia area with
fewer than 51 contracts.” Id. The vague language referenced
by Giles in no way explains whether or how the treatment
costs of a single individual in the community market could
significantly impact the premium.
What is more, Giles failed in this litigation to establish
the amount of her medical expenses. She testified her
monthly infusion treatments were “a little over $4,000 each
time.” J.A. 834. However, she did not submit
documentation, such as the explanation of benefits, to
establish the precise cost of the infusions. Nor did Giles
present evidence as to any other costs associated with her
medical treatment. Without a precise number, it would be
difficult for a jury to weigh and assess her claims.
Even if it was possible for one individual’s claims to
dramatically affect the premium, Giles provides a reasonable
jury with no cause to believe the fluctuations in the premium
should be attributed to her medical expenses. She relies on
the fact that the premium decreased—from $449 per month to
$437 per month—after she was no longer employed by
TEFCU as evidence that her health care costs prompted the
previous increases. Giles’s equation of correlation with
causation is too obviously flawed to be accepted by a
reasonable jury. While Giles states her medical expenses
were high, she never claims her costs were the highest or even
among the highest in the community market. In other words,
she makes no attempt to isolate her own claims as the cause of
the fluctuations in the premium, as opposed to those of others.
Indeed, Giles does not even claim her medical expenses were
the highest among TEFCU employees enrolled in a CareFirst
insurance plan. Such a claim seems necessary to her
argument, because the removal of Giles was far from the only
change to TEFCU’s enrollment list before the premium
17
decreased. For example, in August 2009, there were nine
TEFCU employees enrolled in the single employee PPO plan.
By July 2010, there were eleven, of which only four had been
on the plan in August 2009. Giles fails to distinguish herself
from any of the other individuals added or removed.
However, the record does support the conclusion that the
lower premium in 2010 is attributable to a change in the
substance of the plan and not to its enrollees. As TEFCU
points out, the single employee PPO plan offered by CareFirst
in the 2010–2011 renewal letter—Option 6—was different
than Giles’s plan—Option 1. The premium for the Option 6
plan was slightly lower, but it called for higher co-pays and
higher deductibles than had been charged under Option 1. On
the record before us, Giles’s assertion that the rising plan
premium during the time of her employment and the decrease
that occurred after she was laid off should be attributed to the
cost of her medical treatment is simply untethered
speculation.
Even if Giles had demonstrated her medical costs were or
could have been the cause of the premium increases, no
evidence suggests Smith or Felder thought so. Giles points to
testimony by Felder that Shirley Broder, a human resources
consultant for TEFCU, advised Felder not to hire Giles as a
permanent employee because of her MS. Supposing Felder’s
testimony could somehow be interpreted to suggest Broder’s
specific concern was that Giles’s medical costs would drive
up the premium, the fact remains that Felder did not follow
Broder’s advice and hired Giles with full awareness of her
condition. Nothing in the record links any discriminatory
animus Broder may have harbored at the time Giles became a
full-time employee in 2006 to Giles’s termination three years
later. Giles points to Felder’s knowledge that her treatment
was “costly,” but that awareness in no way suggests Felder
18
believed Giles’s expenses caused or could have caused the
premium to go up.
Furthermore, there is no suspicious temporal connection
from which a jury could infer TEFCU’s reason for
terminating Giles was associated with her medical expenses.
See Trujillo, 524 F.3d at 1157 (temporal proximity between
employees’ son’s relapse and the initiation of an investigation
of alleged time theft that led to their termination contributed
to “an inference of discrimination”); Nero v. Indus. Molding
Corp., 167 F.3d 921, 927 (5th Cir. 1999) (holding the
plaintiff’s “termination followed so shortly after his claim to
medical benefits that the jury could reasonably infer a
retaliatory motive”). Giles had been receiving the infusion
treatments consistently for two years by the time she was laid
off. And while she argues generally that Felder was aware
her condition and physical symptoms were worsening and
necessitated more visits to her doctor, she does not suggest
there was any significant corresponding increase in the
expense of her treatment 5 or that any specific event would
have led Felder to believe there was. Moreover, Giles admits
that no one from TEFCU ever initiated a conversation with
her about her health care costs—not in close proximity to her
termination or any other time. See, e.g., Gaglioti v. Levin
Group, Inc., 508 F. App’x 476, 484 –85 (6th Cir. 2012)
(granting summary judgment for employer where there was
no evidence of concern about the cost of coverage or a
discussion of the costs including no evidence of conversations
about the costs); Dewitt, 517 F.3d at 948 (denying summary
judgment for employer where it asked the employee about
5
In fact, she admits she stopped receiving the infusion treatments in
October 2009. There is no evidence, however, TEFCU was aware
of this change.
19
high costs of her husband’s treatment twice in the five months
preceding her termination).
Giles argues TEFCU was looking to reduce the amount it
spent on employee health insurance at the time she was
dismissed, suggesting her termination was related to her
medical expenses. She points to a statement by Felder that as
CEO she has been concerned with how health insurance costs
affected TEFCU’s “bottom line.” J.A. 105. In our era of
ever-escalating health care costs, however, it is inconceivable
that a CEO would not have at least some background concern
regarding the impact of those costs on the business’ books.
Accord Unida v. Levi Strauss & Co., 986 F.2d 970, 980–81
(5th Cir. 1993). There is evidence, moreover, suggesting
TEFCU was not actively on a campaign to reduce health care
costs when Smith decided to dismiss Giles. Smith testified
that in November 2009, that year’s health insurance contract
was already in place and that she would not make any
decisions regarding health insurance until the next renewal.
Giles next claims TEFCU “forced” a rate renewal earlier
in the year than the previous renewals, which had each
become effective August 1, and that this is evidence of
TEFCU’s desire to receive a lower rate in light of Giles’s
termination. Despite her accusation, Giles pinpoints no
evidence to this effect. CareFirst sent the 2010-2011 renewal
notice in June, just as it had the previous relevant renewal
notices. While the new premium rate was effective by July
2010, Giles cites no evidence explaining the timing of the
effective date or suggesting it occurred earlier than in
previous years at TEFCU’s behest. Giles also points to
Smith’s testimony that, in 2011, TEFCU changed its policy
and began to require employees enrolled on family insurance
plans to pay 50 percent of the monthly premium instead of 20.
This change would not have affected Giles, who was enrolled
20
on a single individual plan, and occurred more than a year
after she left. It therefore does not imply TEFCU was
concerned with the rising premium for Giles’s plan at the time
it terminated her in 2009.
Giles’s last argument to this effect is that the fact that her
scanning duties were assumed by temporary employees—who
were not eligible to enroll in TEFCU’s health insurance—
supports an inference that TEFCU terminated her as part of a
plan to cut insurance expenses. Giles credits Felder’s
testimony that two temporary employees and one intern took
over the scanning duties. However, Giles disregards the rest
of Felder’s testimony on this issue, which takes much of the
wind out of the argument that TEFCU’s switch to temporary
employees was pernicious. Felder explained temporary
employees and interns had performed the scanning duties at
TEFCU before Giles took on the role of scanning specialist in
October 2008. Further, Felder’s testimony reveals a
significant lapse in time between Giles’s dismissal and the
hiring of the temporary employees and intern, whose start
dates were May 6, June 21, and September 2, 2010.
Finally, this is not a case “premised upon evidence in the
record from which a reasonable juror could find that, absent
invidious discrimination, the challenged employment decision
was inexplicable.” Barbour v. Browner, 181 F.3d 1342,
1346–47 (D.C. Cir. 1999); see also Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978) (“[W]hen all legitimate
reasons for rejecting an applicant have been eliminated as
possible reasons for the employer’s actions, it is more likely
than not the employer, who we generally assume acts only
with some reason, based his decision on an impermissible
consideration . . . .”). Instead, in uncontroverted testimony,
Felder and Smith stated that in addition to Giles, two other
employees severed ties with TEFCU on November 24, 2009.
21
Smith and Felder explained Theresa Boyd was slated to be
dismissed that day, but she resigned instead. They further
stated Bradham was terminated on November 24, 2009, and
Bradham’s declaration confirms that is the day his tenure at
TEFCU ended. Smith explained Bradham was not replaced
with a new employee and that instead Smith mostly took over
his duties. As for Boyd, her name does not even appear on
CareFirst’s invoices listing TEFCU employees enrolled in its
health insurance plans. Instead, Smith and Felder testified
that as Felder passed the CEO baton to Smith, she
recommended Boyd, Bradham, and Giles be terminated
because they would not “fit into [Smith’s] management
style.” J.A. 60. While Felder’s style was “laid back,” Smith’s
was “aggressive.” Id. at 61. Smith confirmed she accepted
Felder’s recommendations and that she specifically chose to
terminate Giles because she would not tolerate poor
performance.
“[W]e do not routinely require plaintiffs to submit
evidence over and above rebutting the employer’s stated
explanation in order to avoid summary judgment.” Hamilton
v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (internal
quotation marks omitted). But an employer is entitled to
summary judgment where “the plaintiff created only a weak
issue of fact as to whether the employer’s reason [for the
termination] was untrue and there [is] abundant and
uncontroverted independent evidence that no discrimination
[has] occurred.” Reeves, 530 U.S. at 148 (citing Aka, 156
F.3d at 1291–92). This is such a case. Giles rebutted
TEFCU’s asserted reason for her termination by highlighting
its inconsistencies with TEFCU’s previous explanations.
Giles thereby showed a jury could reasonably discredit
TEFCU’s explanation, but her rebuttal is weak and did not
undercut poor performance as a possible reason for her
termination. Instead, TEFCU submitted uncontroverted
22
evidence that two other employees were recommended for
termination on the same day as Giles, and there is no
suggestion this recommendation was based upon the other
two employee’s health status or their impact on insurance
costs. The timing and circumstances of Giles’s termination
also strongly corroborate the evidence that Smith relied upon
Felder’s recommendations, making the decision to terminate
Giles because—as with the two other employees—her
performance would not comport with Smith’s management
style. Moreover, the evidence submitted by Giles is
exceedingly weak, as she failed to establish either that her
medical expenses were in fact causing the dramatic rise in the
premium or that Smith or Felder thought they were. See id. at
149 (explaining “whether judgment as a matter of law is
appropriate” depends on, inter alia, “the strength of the
plaintiff’s prima facie case”). We conclude that on this record
no reasonable jury could find TEFCU terminated Giles
because of the costs associated with insuring her, as an
individual with MS. Therefore, the district court’s grant of
summary judgment to TEFCU was proper.
IV
The district court distinguished between the disability
discrimination claims under the ADA and the DCHRA and
the retaliation for use of medical benefits claim under ERISA.
In granting summary judgment to TEFCU on the ADA and
DCHRA claims, the district court found Giles’s “argument
concedes that [TEFCU] terminated her to save health care
costs, and not because she was disabled.” 6 Giles, 32 F. Supp.
3d at 73 (quoting Tramp v. Associated Underwriters, Inc., No.
8:11CV371, 2013 WL 3071258 (D. Neb. June 17, 2013)).
6
TEFCU does not dispute that Giles’s MS is an ADA qualifying
disability.
23
See also Dewitt, 517 F.3d at 953 (Posner, J., concurring)
(arguing there is no “disability discrimination” where an
employer terminates an employee because of medical
expenses and that employer would “discriminate against any
employee who[] . . . ran up a big medical bill” regardless of
whether the expenses were “due to a condition that did not
meet the statutory definition of a disability”). On appeal,
Giles argues the district court erred and termination based on
the cost of an employee’s disability violates the ADA.
Appellant’s Br. 46–47 (citing, inter alia, Pamythes v. City of
Janesville, 181 F. App’x 596 (7th Cir. 2006) (holding a
plaintiff who claimed to have been discharged because of the
cost of treating his cystic fibrosis had shown sufficient
evidence of pretext to preclude summary judgment on his
ADA and Rehabilitation Act claims); Fraturro v. Gartner,
Inc., 2013 WL 160375, *12 (D. Conn. Jan 15, 2013) (stating a
reasonable jury could infer “anti-disability animus was a
motivating factor in the decision to terminate” the plaintiff
where the employer had an “admitted desire to reduce health
insurance costs arising from chronic illnesses”)); see also
Trujillo, 524 F.3d at 1160–61 (“[T]he Trujillos provided
sufficient evidence that the decision to terminate them was
based on discriminatory intent to violate the ADA. That
evidence also supports an inference that their discharge was
motivated by an intent to interfere with their ERISA
benefits.”). TEFCU does not provide an argument in support
of the district court’s ruling.
We find it unnecessary to reach the issue. Even assuming
discrimination based on the costs associated with insuring a
person with a disability is discrimination on the basis of the
disability, Giles’s ADA and DCHRA claims cannot survive
TEFCU’s motion for summary judgment for the reasons
discussed above. Therefore we need not and do not address
24
the question of whether Giles’s allegations could properly
form the bases of ADA and DCHRA claims.
V
Lastly, Giles appeals the district court’s denial of her
motion for discovery sanctions. The district court may
sanction a party for “fail[ure] to obey an order to provide or
permit discovery.” FED. R. CIV. P. 37(b)(2). Under Rule 37,
the district court has “broad discretion to respond, or not to
respond, to alleged abuses of the discovery process.” Exum v.
Gen. Elec. Co., 819 F.2d 1158, 1164 (D.C. Cir. 1987); see
also Perkinson v. Gilbert/Robinson, Inc., 821 F.2d 686, 689
(D.C. Cir. 1987) (describing the district court’s discretion as
“considerable”). When reviewing the district court’s denial of
sanctions, the question is not whether we would have ordered
sanctions, but instead is whether the district court abused its
discretion in declining to do so. See Nat’l Hockey League v.
Metro. Hockey Club, 427 U.S. 639, 642 (1976); see also
Conseil Alain Aborudaram, S.A. v. de Groote, 460 F.3d 46, 52
(D.C. Cir. 2006).
The district court concluded Giles’s motion for sanctions
was “moot” as to the documentation of TEFCU’s insurance
costs, reasoning Giles had not raised her “ERISA claim until
three years after her termination” and therefore “there was no
reason why the litigation hold should have covered all
documents related to the company’s health insurance costs.”
Giles, 32 F. Supp. 3d at 74 n.3. Regardless, the district court
found Giles’s objections moot, because she had received
sufficient evidence of the insurance premium rates from
CareFirst. Id. It then found no other ground for imposing
sanctions. Id. Giles asks us to reverse this decision. While
Giles reiterates the reasons for her request for discovery
sanctions, she provides no citation to authority or to the
25
record demonstrating the district court’s denial of her request
was premised upon an erroneous conclusion of law, an
erroneous factual finding, or that it was otherwise
unreasonable. Cf. Fencorp, Co. v. Oh. Ky. Oil Corp., 675
F.3d 933, 942 (6th Cir. 2012). We therefore find no showing
of an abuse of discretion and affirm the district court’s denial
of Giles’s motion for sanctions.
VI
For the foregoing reasons, the district court’s judgment is
affirmed.
So ordered.