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Debra Brown v. Humana Insurance Company

May 1, 2013



Plaintiff Debra Brown brought suit against her former employer, Defendant Humana Insurance Company ("HIC"), claiming that HIC acted improperly during the course of her employment because of her health condition. Specifically, Brown advances two claims: (1) HIC discriminated against her on the basis of her perceived disability, in violation of the Kentucky Civil Rights Act ("KCRA"), KRS § 344.010, et seq., and (2) HIC terminated her in retaliation for taking approved leave pursuant to the Family and Medical Leave Act ("FMLA"), in violation of 29 U.S.C. §§ 2611 and 2615. HIC moves for summary judgment as to each, claiming Brown has submitted insufficient evidentiary support to sustain both claims as a matter of law. For the foregoing reasons, the Court will deny in part and sustain in part HIC's motion.


While some of the facts are in dispute, both parties agree to the general timeline of events. HIC hired Brown on December 5, 2005 for a position in the Account Installation Department. This department builds and implements various health insurance plans for clients, and handles changes and renewals to those plans. HIC's health insurance plans vary in complexity based on the type of client and level of insurance sought. HIC initially hired Brown as an Account Installation Coordinator, and as such, she was responsible for completing the documentation necessary to install benefits for fully insured clients. On May 5, 2008, HIC promoted Brown to Account Installation Manager ("AIM"). As an AIM, Brown essentially functioned as a project manager responsible for insuring that clients' benefit plans are correctly and timely built and installed. AIMs handle the more complex plans.

On March 15, 2010, HIC placed Brown on a Competency and Contribution Improvement Plan ("CCIP"), which appears to be the means by which management formally notifies employees of work performance deficiencies. Within the CCIP document, management outlines performance issues and expectations for future work performance, and stresses that continued employment is contingent upon successfully meeting stated expectations and achieving sustained work performance improvement. Three months later, on June 16, 2010, HIC terminated Brown.

The details of Brown's performance history are disputed. HIC divides the relevant periods of her employment into two phases. First, beginning in June of 2009, Brown worked as an AIM under Chris Van Vreede. Most of the HIC employees under Van Vreede, including Van Vreede herself, worked in Wisconsin, while Brown worked in Louisville, Kentucky. Under Van Vreede, Brown allegedly refused to participate in group meetings, although Brown claims that the group did not invite her to these meetings because she worked remotely. Van Vreede claims Brown failed to timely update the client database, missed assignment deadlines, and resisted or failed to attend one-on-one coaching sessions and work performance conference calls. Van Vreede claims to have considered placing Brown on a CCIP. Instead, she merely filtered more complex accounts from Brown until Brown requested, and HIC granted, Brown's transfer to Vickie Speer's group in December 2009.

This second phase of her employment under Speer was decidedly more problematic, according to HIC. Speer and HIC claim that Brown was unprepared for conference calls, failed to timely and consistently update client profiles, and made a few notable errors to clients' accounts. For example, HIC alleges that Brown set the wrong effective date for an account, leaving members of that account with lower balances and some members with insufficient funds to cover expenditures until the client caught the error. After another alleged fumble with a conference call-in number given to this same client, the client asked that HIC remove Brown from the account. On another occasion, Brown entered the incorrect maximum age for coverage of full-time students and dependents causing the client to be over-insured to their detriment. Although Brown does not contest that these two problems occurred, she later explained that the cause of the problems was miscommunication from other members of her team.

In addition to clients' complaints, apparently other HIC associates criticized Brown's performance and behavior. Periodically, HIC sends out market relations surveys to its employees to evaluate the work performance of their colleagues. Brown received several negative marks from her peers and subordinates on these surveys.

Speer spoke with management about placing Brown on a CCIP. Speer, Ed Salings, Speer's supervisor, and James Augustus, HIC's Lead Account Services Director, placed Brown on a CCIP, which cautioned Brown that she could be terminated if she did not meaningfully improve her work performance. These parties met to discuss the CCIP provisions. Brown only contested a few of the provisions in a formal response. With respect to the problems described above, Brown did not comment or excuse her involvement with those issues in the CCIP response despite HIC detailing them in the CCIP.

Four days after HIC issued Brown's CCIP, Speer claims that Brown failed to update the client database. Six days later, Speer alleges that Brown failed to update HIC's database to reflect a delayed deadline. About three months after HIC issued the CCIP, Brown sent Speer an e-mail, the contents of which Speer felt were insubordinate. Shortly thereafter, HIC terminated Brown.

Brown suffers from Crohn's disease, which her gastroenterologist Dr. Brian Dobozi explains is a chronic gastrointestinal condition that causes severe inflammation of the gastrointestinal tract. According to Dr. Dobozi, when Crohn's disease is flaring up, it causes changes in bowel habits, fatigue, and obstruction of the bowel which leads to nausea and vomiting. Diagnosed in 2007, Brown has a moderate gradation of the disease. Dr. Dobozi also diagnosed Brown with irritable bowel syndrome ("IBS"), which for Brown, displayed daily symptomology during much of her employment with HIC. IBS encompasses a broad range of gastrointestinal issues ranging from diarrhea to constipation. IBS can wax and wane on a daily or more sustained basis. Dr. Dobozi stated that Brown's health conditions caused frequent and urgent trips to the bathroom, fatigue, and an inability to function normally due to pain in her abdomen.

Brown asserts that she met work performance standards at HIC for the first few years. She claims she received glowing evaluations through the end of 2008, and HIC even selected her to participate in a talent management program. HIC contends that her work product was fine when she was an Account Installation Coordinator, and that HIC asked everyone at her level to participate in the talent program. HIC surmises that the decline in Brown's work performance was a result of her promotion and consequent increase in responsibilities. Brown disagrees. She alleges that her supervisors became antagonistic to her work performance when her Crohn's flared up or her IBS presented symptoms. Brown suggests the hostility resulted from the amount of time she was unable to come into work, because the frequency, urgency, and consistency of her bowel movements restricted her normal functioning. At times, she had to use the restroom twenty times in a day, spending up to two hours of the day in the bathroom.

For much of her time at HIC, Brown used her vacation days and holidays to visit the doctor. During flare-ups or days when she suffered from IBS, Brown often worked from home, which Van Vreede and Speer allowed on numerous occasions. At some point during their employment relationship, Speer denied Brown's request to work from home on a standing basis, preferring to handle work-at-home requests on an as-needed basis. The last date Speer authorized Brown to work from home was December 14, 2009. From that day until March 8, 2010, Brown used vacation days when she needed to stay home for health issues. However, in early 2010, Speer encouraged Brown to apply for FMLA benefits, which allows employees with serious health conditions or who care for family members with serious health conditions to take a fixed amount of unpaid leave from work annually. Brown felt that FMLA leave would be counter-productive, because under FMLA leave rules, Brown was not to work from home. Nevertheless, at Speer's urging, Brown applied and received approval for intermittent FMLA leave. She took sixteen days of FMLA leave from March 7, 2010 through June 16, 2010.

Brown found her supervisors' attitude toward her work performance especially deleterious during her time under Speer. Brown claims, and Speer does not seem to dispute, that Speer told Brown she would have been fired if she worked in customer relations due to the amount of days she missed. On another occasion, Speer allegedly compared Brown's doctor visits to doctor visits for a hurt finger, which suggested to Brown that Speer thought Brown was lying about or exaggerating her condition.*fn1


Brown claims that HIC discriminated against her by failing to reasonably accommodate her disability with permission to work from home on a standing basis. Brown also alleges that HIC retaliated against her by firing her for taking FMLA leave. HIC argues that it reasonably accommodated Brown, providing her authorization to work from home as needed, and that her termination was purely the result of performance deficiencies. Accordingly, HIC asks for summary judgment on Brown's claims.

A court will grant summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The Court reviews the evidence in the light most favorable to the nonmoving party, and the moving party must demonstrate the absence of a genuine issue of material fact or the absence of evidence to support an essential element of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then show the existence of a disputed factual element in her case, relying on probative evidence rather than mere allegations. Lansing Dairy, Inc. v. Epsy, 39 F.3d 1339, 1347 (6th Cir. 1994). "Only disputes over ...

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