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Flaherty v. Unum Group

United States District Court, D. Maine

November 14, 2019

UNUM GROUP, Defendant.


          George Z. Singal United States District Judge

         Before the Court is Defendant's Motion for Summary Judgment (ECF No. 30). As explained herein, the Motion is GRANTED IN PART AND DENIED IN PART.


         Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “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). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).

         Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotation marks and internal ellipsis omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993). “However, summary judgment is improper when the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Morales-Melecio v. United States (Dep't of Health and Human Servs.), 890 F.3d 361, 368 (1st Cir. 2018) (quotation marks omitted).


         Defendant Unum Group (“Unum”) is an insurance company specializing in disability, life, and accident insurance policies. Plaintiff Joanne Flaherty (“Flaherty”) first began working for Unum in 1976 as a medical benefits clerk. After leaving the company in 1980, Flaherty was rehired by Unum on April 13, 1987, and worked there until her termination on March 28, 2017. During her employment with Unum, Flaherty held a variety of different positions. She moved into an Associate Underwriter position in 2002, and in March 2007, Flaherty was promoted to the role of Senior Underwriter, a position she held until the end of her employment with Unum. All told, she was employed at Unum for 34 years.

         During her tenure at Unum, Flaherty received regular performance evaluations.[2] Most, if not all, of these evaluations included anonymous 360-degree feedback from co-workers.[3] In general, these performance evaluations reflect Flaherty meeting or exceeding performance expectations. As noted in many of the evaluations and as Flaherty herself acknowledged, her work “on feedback and communication was an ongoing, evolving process.” (Flaherty Dep. (ECF No. 25-4), PageID # 130.) However, her evaluations document work and progress on communication skills as well as successful completion of performance goals, which, in turn, led to multiple promotions.

         During the time period at issue, Unum maintained a Code of Conduct, which applied to all employees. (See McWilliams Ex. A (ECF No. 26-2), PageID # 357.) The Code of Conduct required all employees to “contribute to Unum's culture of ethics and compliance by understanding the Code and complying with it at all times. . . . [and] also obey all applicable laws and regulations governing our business conduct.” (Id. at PageID # 357.) Unum's Code of Conduct additionally required employees to “be courteous, respectful and professional with each other and customers.” (Id. at PageID # 363.) The Code also instructed employees to “be responsible in your communications” so as “to avoid misunderstandings.” (Id. at PageID # 372.) Relatedly, Unum's Code of Conduct instructed employees to “[s]peak up and report issues of concern” in order to “protect[ ] yourself, your co-workers and Unum as well as allow[ ] Unum to resolve problems.” (Id. at PageID # 358.) The “Speak up” policy states: “All Unum employees have an obligation to speak up. If you see behaviors, actions, or decisions, that may be a violation of the Code or any company policy, it is up to you to raise the issue promptly.” (Id.)

         Unum also maintained a Performance Improvement/Discipline Policy during the relevant time period. (See McWilliams Ex. B (ECF No. 26-3), PageID # 357.) While this Policy has distinct tracks for performance issues and misconduct, both tracks envision a written reprimand as a step that precedes termination in most cases.[4] Nonetheless, the misconduct portion of this Policy indicates that “[s]ome inappropriate behaviors could be grounds for termination of employment without an initial or final warning.” (Id. at PageID # 381.)


         In February 2016, Robert Ficker (“Ficker”) became the Assistant Vice President (“AVP”) of Evidence of Insurability (“EOI”) Operations and Transformation.[5] The EOI department included the medical underwriting team on which Flaherty worked. By Ficker's own admission, Flaherty knew a lot more about medical underwriting than he did. Underneath Ficker in the management tree was Flaherty's direct manager at the time, Tena Twomey. Twomey had been Flaherty's direct supervisor since approximately 2002.

         Unum's Implementation of Lean Management

         Part of Ficker's responsibilities as AVP of the EOI department included implementing the rollout of “lean management” (hereinafter, “Lean”), a customer-focused management system being adopted by EOI and across all of Unum's service operations teams, which included several hundred employees. Heather Levy (“Levy”) and Matt Marino (“Marino”) were part of a Unum team that oversaw the rollout of Lean. Lean was initially introduced to Flaherty's medical underwriting team in Spring 2016.

         The medical underwriting team, like other service operations teams at Unum that were experiencing the Lean rollout, had questions about the various changes to their jobs brought about by the implementation of Lean. Common concerns from the medical underwriting team members included how Lean would relate to their jobs, the d a i l y m eet i ng requirement (referred to as “huddles”), the work tracking requirements, and worries that the new system would impair their ability to review medical files. The team also had concerns that the required activity tracker tool was not accurately capturing their work activity.

         August 2016 Meeting

         In August 2016, Unum held a Lean related meeting with the medical underwriting team. Marino and Levy both attended but arrived late. The purpose of this meeting was to allow the team members to ask questions and provide input about Lean in a safe, small-group environment. In advance of the meeting, the underwriters, including Flaherty, had prepared written questions and sent them to Marino. These questions raised concerns about the tracking of the underwriters' time reviewing medical records because the volume of medical records varied for each claim. At the August 2016 meeting, all of the medical underwriting team employees criticized and questioned certain aspects of Lean. Many of them expressed frustration and asked tough questions about Lean and whether it was an appropriate fit for their team.

         Marino and Levy did not have prepared responses to the underwriters' written questions. Marino said he did not understand their concern about tracking their time reviewing medical records because “once you know somebody is going to be declined, you don't even need to bother reading the rest of the records.” (Flaherty Dep., PageID # 122.) Marino's response raised immediate concerns with the underwriters because their underwriting practice was to capture all reasons for declining a claim. In response to Marino, Flaherty explained, “We are required . . . to capture all the reasons why an individual might be declined. And the reason for that is if they come back and clarify something that was inaccurate in their medical records and that was the only reason we listed, we don't want to then go back and say, well, we also have this. We want to be inclusive and up front with that.” (Id., PageID # 122-123.) An underwriter then asked Marino if “he understood the different aspects of our job.” (Id.) In response, Marino replied, “Do you think you are more important than brain surgeons? You are underwriters. Brain surgeons use this.” (Id., PageID # 123.) Marino's response shut down the questions from other underwriters; Flaherty, however, followed up on the prepared questions.

         Twomey, Flaherty's direct manager, thought the meeting went “great.” During the meeting, Twomey agreed with the questions asked by the underwriters, often “nodding in agreement.” (Ficker Aff. Ex. A (ECF No. 26-5), PageID # 390.) Ficker did not agree with Twomey's assessment of the meeting. Based on accounts of multiple co-workers, Ficker appeared angry with Flaherty by the end of the meeting, and co-workers in attendance told Flaherty that they felt her job was in jeopardy. (Flaherty Dep., PageID # 124.)

         Although Flaherty left the office shortly after the meeting concluded, she recalls that Ficker met with her upon her return to work. Ficker indicated to Flaherty that he objected to what she had said during the team meeting with Levy and Marino and her tone. He indicated that Flaherty's conduct was a “disgrace to his brand.” (Flaherty Dep., PageID # 121.)

         Flaherty separately set up a time to meet with Levy over coffee and later apologized for the comments she had directed at Levy. (Levy Dep. (ECF No. 25-30), PageID # 311.)

         December 15, 2016 Meeting

         During a huddle meeting on December 15, 2016, which was led by Twomey, the medical underwriting team was discussing their plan for the following day, when snow was expected. Unum's policy permitted employees to work from home during inclement weather, and they were provided laptops for this purpose. At one point during the meeting, the team began discussing whether there would still be a daily morning huddle if they worked from home. Twomey, as the direct supervisor and leader of the meeting, explained that Ficker wanted the underwriters to have camera software activated on their laptops in order to have the huddle at the usual time.

         Underwriter Denise Stewart (“Stewart”) objected to Ficker's directive because some underwriters did not have the ability to telecom in. Stewart complained that without the ability to telecom employees would be forced to travel to work during the snowstorm. This created tension for several underwriters. One underwriter expressed concern that it appeared Ficker did not want the underwriters to work at home during the predicted snowstorm. At some point during this discussion, Ficker dropped in on the meeting.

         Flaherty then asked how the team would be able to see the huddle board that normally was used as a visual aid during these morning huddles, and Twomey responded that she would likely need to move it into a conference room where the videoconference could be set up. Flaherty responded to Twomey's plan in part by describing the proposed virtual huddle as “insane.” (Flaherty Dep., PageID # 141.) Flaherty made this statement “[b]ecause . . . [she] was thinking of easier ways that could be done without her physically moving a board and setting up a room, ” and that there must be “far more efficient ways that this c[ould] be done if the goal is to have huddles while people work at home, ” such as online meeting software. (Flaherty Dep., PageID #s 141-42.) Flaherty ...

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