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Kerry v. Sun Life Financial (US) Services Inc.

United States District Court, D. Maine

January 15, 2019



          Lance E. Walker United States District Judge.

         In this diversity action, the Plaintiff, Shelly Kerry, alleges the Defendant, Sun Life Financial (U.S.) Services Company, Inc. retaliated against her in violation of the Maine Human Rights Act (“MHRA”) for engaging in activity protected under the Maine Whistleblower Protection Act (“MWPA”) and failed to accommodate Plaintiff's alleged disability in violation of the MHRA. Am. Compl. (Doc. No. 14). Defendant moves for summary judgment on the claims, asserting that the termination of Kerry's employment violated neither the MWP nor the MHRA. Mot. Summ. J. (Doc. No. 33). I grant the motion for the reasons set forth in this Decision and Order.


         The facts are drawn from the parties' stipulations, if any, and from their statements of material facts submitted in accordance with Local Rule 56. The Court will adopt a statement of fact if it is admitted by the opposing party and is material to the dispute. If a statement is denied or qualified by the opposing party, or if an evidentiary objection is raised concerning the record evidence cited in support of a statement, the Court will review those portions of the summary judgment record cited by the parties, and will accept, for summary judgment purposes, the factual assertion that is most favorable to the party opposing the entry of summary judgment, provided that the record material cited in support of the assertion is of evidentiary quality and is capable of supporting the party's assertion, either directly or through reasonable inference. D. Me. Loc. R. 56; Boudreau v. Lussier, 901 F.3d 65, 69 (1st Cir. 2018). If not supported by a specific citation to the record, I will disregard a statement of fact, denial, or qualification. Richardson v. Mabus, 203 F.Supp.3d 86, 104 (D. Me. 2016).[1]

         Sun Life hired Plaintiff on August 3, 2015, to serve as a Senior Consultant, Long Term Disability Claims (“LTD”) on the Behavioral Health Claims Team. Joint Statement of Material Stipulated Facts (“JSMSF”) ¶¶ 9, 12. In this position, Kerry reported to Rebecca Moya, the Senior Manager, LTD, who, in turn, reported to Lisa Doherty, Director, LTD. Id. ¶ 10.

         When Kerry was offered her position, she received a copy of Sun Life's Employee Handbook. Defendant's Statement of Material Facts (“DSMF”) ¶¶ 3, 9. She also had access to this handbook on the Sun Life intranet site. DSMF ¶ 10. The handbook outlined Sun Life's prohibition on retaliation as well as specific procedures for requesting a medical accommodation.[2] DSMF ¶¶ 7, 8.

         On November 18, 2015, Moya tasked Kerry with the responsibility of writing her first denial letter for a claim that Sun Life initially approved but would deny going forward based on the determination that the claimant's need for long-term disability benefits was not medically supported. DSMF ¶ 29. Following her review, Kerry advised Moya that she felt Sun Life should conduct an additional investigation into whether or not the claimant should be required to pay back prior benefits received due to his receipt of other income. DSMF ¶ 30. In response to Kerry's concerns, Moya explained that Sun Life made the decision to not expend claims resources on an in-depth investigation because it was unlikely the claimant's income exceeded the level at which Sun Life could require repayment of benefits received. DSMF ¶ 31. Kerry strongly disagreed with Sun Life's actions and she expressed her perspective that every claim should be investigated equally and that it was not appropriate for Sun Life to make a business decision to forgo the expense of further investigation.[3] DSMF ¶ 32.

         In her later statements on the topic, Kerry asserted that the “Fair Claims Act” requires insurers such as Sun Life to investigate all claims equally, which, in her view, necessitated additional investigation into the claimant's work history. Deposition of Shelly Kerry-Feagans 53:2-10 (Doc. No. 24-1, #315) (“Kerry Dep.”). Furthermore, she asserted it was illegal under the Fair Claims Act to make a business decision to forego additional investigation into the claim.[4] DSMF ¶ 32; Kerry Aff. ¶ 5 (Doc. No. 41, # 1036); Kerry Dep. 55:14-16 (Doc. No. 24-1, #315). However, when voicing her concerns to Moya, Kerry admits she never explicitly mentioned any law, including the misnamed “Fair Claims Act.” Kerry Dep. 55:5-7 (Doc. No. 24-1, # 315); Rosenstein Decl. ¶¶ 15-16 (Doc. No. 34-9, #841). Instead, she questioned whether the handling of the claim fell within “fair claims processing, ” which, based on Kerry's later clarification, was a component of the “Fair Claims Act, ” by which Kerry evidently means the Unfair Claims Settlement Practices provision of the Maine Insurance Code, 24-A M.R.S.A. § 2436-A. DSMF ¶ 36; Kerry Dep. 55:7-12 (Doc. No. 24-1, #315).

         Despite these concerns, Kerry sent a follow-up email to Moya later that day which stated: “I did not think you advised [the individual who made the decision to deny the claim] to do the wrong thing. Sorry if it came off like that. I would never do that.” DSMF ¶ 33. A month later, Kerry emailed Moya's supervisor, Doherty, regarding the claim and stated: “This is not to say I believe it's right or wrong, I just wanted to explain that it[']s an adjustment for me and I am trying to do the best I can with it.” DSMF ¶ 34. Furthermore, she later characterized the issue to Human Resources representatives as a “mistake handled by my manager and another analyst.” DSMF ¶ 50; Rosenstein Decl. Ex. 2, 2 (Doc. No. 34-14, #947).

         Kerry asserts that from this point forward, Moya began to treat her poorly and became hostile towards Kerry. Plaintiff's Statement of Material Facts (“PSMF”) ¶ 38. Kerry asserts this hostility was manifested in many ways, including Moya “chang[ing] her tone to sound angry” or stern, Moya referring to Kerry as “Ms. Shelly” in a sarcastic tone, or Moya generally trying to intimidate her. PSMF ¶¶ 38-40, 42. As examples of this new hostility, Kerry points to two separate meetings with Moya.

         First, on December 14, 2015, Moya scheduled a meeting with Kerry “to ensure [she was] keeping track of [her] claims and [her] workload.” DSMF ¶ 22. Nearly a month prior to this request, Kerry had been assigned a claim, had discussed the claim with Moya, and had even performed work on the claim. DSMF ¶ 22. However, on December 14, 2015, Kerry reached out to Moya because she was unsure whether she was responsible for the claim. DSMF ¶ 22. Because Moya believed Kerry should have known about the assigned claim, she requested a telephone meeting. DSMF ¶ 22. On December 15, 2015, Moya called Kerry as planned and Kerry answered the call at her desk. DSMF ¶ 23. Among other topics of discussion, Moya asked Kerry about the condition of her health and Kerry disclosed she was suffering from an earache at the time. DSMF ¶¶ 23, 27. Although she was allegedly uncomfortable with the topic, Kerry did not express her uneasiness during the call and did not inform Moya that she was sitting at her desk (a public area where others may be able to overhear the conversation). DSMF ¶ 24. Following the call, Kerry emailed Moya and expressed her discomfort with discussing her health during the call as well as Moya's failure to warn her regarding the content of their meeting. DSMF ¶ 25; PSMF ¶ 42. In a follow-up meeting, Kerry explained to Moya that she felt as though Moya was “trying to intimidate her and find a reason to fire her.” PSMF ¶ 42.

         Second, in late December 2015, Moya and her manager, Doherty, requested Kerry travel to Portsmouth during inclement weather to meet with them.[5] DSMF ¶ 39; PSMF ¶ 47. During this meeting, Moya and Doherty provided Kerry with a review that outlined several concerns they had with Kerry's work performance[6] and they discussed those concerns. DSMF ¶ 40; Kerry Dep. Ex. 10 (Doc. No. 24-11, #457-59). Kerry denies that the performance issues existed, instead asserting that she had been unaware of any performance issues.[7] PSMF ¶ 48. Furthermore, Kerry asserts that Moya conducted the meeting in an “intimidating” manner and even “yell[ed] at [Kerry] in an unprofessional manner.”[8] PSMF ¶¶ 46, 49. At the close of this meeting, Moya and Doherty agreed to set up additional training for Kerry to address the performance issues they discussed. DSMF ¶ 41.

         On January 11, 2016, Kerry left on an approved leave of absence to undergo surgery to address a thyroid condition. DSMF ¶ 42. Kerry was initially scheduled to return to work on February 19, 2016, but post-surgical complications delayed her return to work. DSMF ¶ 42; JSMSF ¶ 13. Kerry was subsequently approved to receive benefits under Sun Life's Short-Term Salary Continuance (“STSC”) Program through February 29, 2016. JSMSF ¶ 14; DSMF ¶ 44. After a request for an additional extension due to continued post-surgical complications, Kerry was approved to receive STSC benefits through March 31, 2016. DSMF ¶¶ 44, 69, 70.

         While on leave, Kerry reached out to Sun Life's Human Resources department with concerns regarding her manager, Moya. DSMF ¶ 46. In her initial email request to HR, Kerry indicated she would like to speak with the Human Resources department about “returning to work soon with another manager.” DSMF ¶ 46; Rosenstein Decl. ¶ 11-12 (Doc. No. 34-9, #840). Although Kerry asserts in her summary judgment affidavit that she was requesting an accommodation because she felt anxiety due to the perceived retaliation from Moya, Kerry Aff. ¶ 13 (Doc. No. 41, #1038); PSMF ¶ 58, in fact, Kerry consistently requested an accommodation due to Moya's alleged retaliation and inappropriate conduct. Response to PSMF ¶ 58; Rosenstein Decl. ¶ 29 (Doc. No. 34-9, # 844); Rosenstein Decl. Ex. 2 (Doc. No. 34-14, #946-47) (Kerry requested to be transferred to a new manager so that she would “not be treated in an unfair way or be assessed unfairly.”). In one correspondence, Kerry even stated: “I will not be returning to work for [] Moya. It is not due to a medical condition.” Rosenstein Decl. Ex. 20 (Doc. No. 31-7, # 703).

         Kerry asserts, and Defendant does not dispute, that she was diagnosed with intermittent anxiety in 2012 or 2013. PSMF ¶ 56. Additionally, there is evidence she informed Erin Blackburn, a Sun Life HR Representative, that she “was having some anxiety about returning to work for somebody that treated [her] that way.” Kerry Dep. 137:13-25; 140:12-141:8 (Doc. No. 24-1, #336-37); Kerry Aff. ¶ 12 (Doc. No. 41, #1038). Whether this supports Plaintiff's assertion that she “requested an accommodation for her anxiety exacerbated by the conditions at work, ” PSMF ¶ 58, is a legal question to be addressed below. In her deposition, Blackburn asserts she was not aware Kerry was receiving treatment for anxiety and did not understand Kerry was requesting an accommodation for her anxiety. Blackburn Dep. 29:6-18 (Doc No. 24-34, #591). Similarly, another HR Representative, Lyn Rosenstein, states in her affidavit “Kerry never advised Sun Life Human Resources, either orally or in writing, that she was being medically treated for or had been diagnosed with any type of anxiety disorder.” Response to PSMF ¶ 58; Rosenstein Decl. ¶ 28 (Doc. No. 34-9, # 844). In opposition, Plaintiff cites her deposition testimony that she requested a transfer because of her anxiety. Kerry Dep. 137:13-25.

         Following Kerry's emailed request for a new supervisor, the Sun Life HR department conducted an investigation into Kerry's concerns. DSMF ¶ 48. Throughout the investigation process, HR representatives frequently communicated with Kerry by email and over the phone, exchanged emails with Moya regarding Kerry's concerns, reviewed documentation provided by both Kerry and Moya, and interviewed Kerry and Moya's coworkers. DSMF ¶¶ 53-58.

         In the long series of email exchanges and phone conversations between Kerry and Sun Life HR representatives, Kerry repeatedly voiced her concerns and memorialized them in writing. In sum, these communications focused on Kerry's frequent request for the accommodation of being reassigned to a new manager and Kerry's frustration over the general breakdown of Moya and Kerry's working relationship.[9]

         At the conclusion of their investigation, the HR team determined that they could best address and resolve Kerry's concerns by having her return to work and by providing support including: additional training on the systems Kerry was required to use when completing her job assignments, meeting with Kerry to resolve her concerns in person, and meeting with Moya and Kerry (both individually and together) in order to rehabilitate their working relationship. DSMF ¶¶ 59, 62. The HR team determined there was no evidence Moya had taken any retaliatory actions against Kerry, but nevertheless instructed Moya that she could not retaliate against Kerry for raising concerns regarding Moya. DSMF ¶ 60, 61, 92-94; Rosenstein Decl. ¶ 19 (Doc. No. 34-9, #842). Additionally, the HR team determined that Kerry's request to be transferred to a different manager in the Scarborough Office should be denied because (1) they believed that Kerry's unhappiness over Moya's actions did not warrant the accommodation of being transferred to another manager and (2) Moya was the only manager on the Behavioral Health Claims Team, so there was no other manager to whom Kerry could be transferred within her department. DSMF ¶ 62; Rosenstein Decl. ¶ 27 (Doc. No. 34-9, #844).

         On March 11, 2016, a Sun Life HR representative emailed Kerry to notify her of their conclusions, request that she return to work, and update her regarding their proposed plan for remedying her concerns. DSMF ¶ 63.

         On March 12, 2016, Kerry responded via email and voiced frustrations regarding the HR department's handling of the investigation as well as the March 11 email which, she believed, provided an inadequate response to her concerns. DSMF ¶ 64. Kerry also expressed that she could not be expected to return to work because her concerns had not been fully resolved. DSMF ¶ 64.

         In a second series of emails stretching from March 2016 until May 2016, Kerry repeatedly contested the adequacy of Sun Life's response to her concerns and reaffirmed that she would not return to work if Moya was to be her manager, once again citing concerns of retaliation and unprofessionalism. DSMF ¶¶ 66, 71, 73, 77; PSMF ¶¶ 53-55.

         In one such email, Kerry stated “Moya is not an honest person and has been targeting me and retaliating. She has been unprofessional and demeaning. I will not work for an abusive Manager who continues to be dishonest.” DSMF ¶ 73. In another, she stated she was justified in remaining out of work due to her allegations, among others, that (1) she had been treated unfairly by Moya, (2) she believed Moya tried to intimidate her and, in retaliation, made false statements on her review, (3) Moya had been unprofessional at work, (4) and Moya had treated her differently than other team members by buying gifts for other employees but not Kerry, “unfriending” Kerry on Facebook but not “unfriending” other employees, not wishing Kerry a Happy Birthday as she did with other employees, and not signing Kerry's Get Well card. DSMF ¶ 77; PSMF ¶¶ 53-55. In yet another, she stated:

I had hoped for [a] reasonable resolution and request[ed] to be transferred to another manager in Scarborough. . . . I do not want to work for a company like this who does not find issues like the ones I have raised not serious . . . . Please let me be very clear to you again. I will not be returning to work for [] Moya. It is not due to a medical condition.

DSMF ¶ 75; Rosenstein Decl. Ex. 20 (Doc. No. 31-7, # 699-703).

         In response to Kerry's emails, the Sun Life HR Representatives addressed Kerry's concerns, asserted it was appropriate for Kerry to continue under Moya's supervision, and consistently requested she return to work and engage in in-person meetings to resolve the dispute. DSMF ¶¶ 65, 67, 68, 72, 74, 76. In the first of these emails, the HR representative stated:

Employees who raise concerns about performance criticism by their manager are expected to report to work, to continue to report to that manager, and to participate in good faith efforts to resolve concerns. Where, for example, an employee disagrees with a year-end performance review, Human Resources will meet with both the employee and the manager (separately and together) in an effort to resolve those issues. You need to return to work so that this process can commence.

DSMF ¶ 65. These demands became more pointed as time went on, indicating that Kerry was “not authorized to be out of work” and further, repeatedly reminding her that if she continued to refuse to return to work, Sun Life may terminate her employment for job abandonment. DSMF ¶ 76; Rosenstein Decl. Ex. 12, 1 (Doc. No. 34-24, #970); Rosenstein Decl. Ex. 13, 14 (Doc. No. 34-25, #985).

         On May 19, 2016, Sun Life HR representatives sent Kerry a notice of termination of employment. DSMF ¶ 83. In this letter, the HR representative stated:

We are sorry that you believe that the Company has not responded adequately to your concerns. We respectfully disagree. We have requested on a number of occasions that you return to work and have advised you that any remaining outstanding issues between [Moya] and you will be addressed with HR at that time. However, you have refused to return to work. As a result, the Company is terminating your employment.

Rosenstein Decl. Ex. 23, 2 (Doc. No. 34-35, #1012). On May 20, 2016, Kerry responded with a letter again providing a detailed response focusing on her disagreements with Sun Life's handling of her concerns and once again reiterating her refusal to return to work under the supervision of Moya. DSMF ¶ 84.

         In her deposition, when asked whether she believed the reason for termination-her refusal to return to work for Moya-was false, Kerry responded: “That was the reason. No, I don't believe that's false, no.” DSMF ¶ 85; Kerry Dep. 119:1-8 (Doc. No. 24-1, # 331). Moreover, at the time of her termination, Kerry had been medically cleared to return to work. DSMF ¶ 109. In June 2016, Kerry began working for ...

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