ADA Decisions, K. Erin Hohmann, Plaintiff v Seyfarth Shaw LLP, Defendant., U.S. District Court, D. Massachusetts, 19 ADD ¶19-028, (Feb. 12, 2020)

[Statement of Case]

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 87)

Sorokin, District Judge: Plaintiff, K. Erin Hohmann, asserts various counts of disability-based discrimination against her former employer, Defendant Seyfarth Shaw LLP, a Chicago-based law firm with offices in Boston. Seyfarth has moved for summary judgment on all counts. Doc. No. 87. [1] Plaintiff opposes. Doc. No. 91. The motion has been extensively briefed. See Doc. No. 94 (reply); Doc. No. 105 (sur-reply); Doc. No. 109 (response to sur-reply). The Court heard argument on February 5, 2020. For the reasons that follow, the Court ALLOWS Defendant's motion (Doc. No. 87) in its entirety.

I. BACKGROUND

The Court views the evidence in the light most favorable to Hohmann, the nonmoving party and resolves all reasonable inferences in her favor. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). [2]

Hohmann was diagnosed with Crohn's disease in 2000 and worked for Seyfarth as a billing coordinator starting in 2007, first as a contract employee from January through May 2007, and then as a regular full-time employee from June 2007 to October 7, 2016. Doc. No. 52 (Amended Complaint) ¶¶4, 6; Doc. No. 92 (Joint Statement of Facts) ¶¶50-51. Defendant knew that Hohmann had Crohn's disease when it hired her. Doc. No. 92 ¶51. From the time Hohmann began working for Seyfarth as a full-time employee, she was permitted to work from home on Wednesdays “to assist management of her chronic condition.” Doc. No. 52 ¶5; see also Doc. No. 92 ¶¶52-53. Hohmann was not required to submit any medical documentation relating to her disability in support of her request for this schedule. Doc. No. 92 ¶54. She was also permitted to come to work late and leave early if she was feeling ill, without having to provide notes from her doctor. Id. ¶¶56-58. In February 2015, Seyfarth requested for the first time that Hohmann submit a Reasonable Accommodation Request form, which she promptly provided. [3] Doc. No. 52 ¶5; Doc. No. 92 ¶59. In response to the instruction to “describe … the accommodation(s) you are requesting for your disability,” Hohmann wrote: “working from home one day a week at a five-hour schedule, as negotiated upon hiring and specifically detailed in offer letter dated June 8th, 2007.” Doc. No. 88-9.

As a billing coordinator, Hohmann was responsible for drafting and finalizing client invoices for a group of attorneys in Seyfarth's Boston office. Doc. No. 92 ¶3. Her job duties included preparing and processing client invoices, coordinating follow up on outstanding invoices and receivables, working with billing attorneys to address unbilled fees and costs, and assisting the collections team with identification and reconciliation of payments received. Id. ¶4. She supported a number of attorneys, including Brian Michaelis, the chair of Seyfarth's intellectual property practice group and the billing and relationship attorney for Client X. [4] Id. ¶5. Over the nine years she worked for Seyfarth, Hohmann consistently received positive employment evaluations, was widely perceived as dealing professionally with her internal and external clients, as capable of working well under pressure, and as having a very good attitude. See generally Doc. No. 52-1 (performance evaluations). She was also praised for “being particularly good at dealing directly with clients on billing issues, and keeping [the billing attorneys] closely informed about such things.” Id. at 68.

At some point in the two or three years preceding her termination, Hohmann began asking for access to Defendant's e-billing HUB (the “HUB”)—billing software for submitting and managing electronic invoices. Doc. No. 92 ¶¶14-18; Doc. No. 52 ¶13 (“From approximately 2013 through her termination in 2016, [Hohmann] made numerous requests to her superiors for full access to [HUB]”). Hohmann again requested access to HUB about two weeks before she was fired. Doc. No. 92 ¶65 (response). She requested access to HUB to allow her to do her work more efficiently but was never granted access. Id. ¶15; id. ¶17 (response).

In late May or early June 2016, Hohmann posted a set of invoices for Client X in Elite—the firm's billing system—for services rendered on a number of matters in March and April 2016 (the May Invoices). Id. ¶21. Hohmann did not send the May Invoices to Client X because she intended to reverse and re-generate them to include May fees and additional costs. Id. ¶22. Because the invoices were posted in Elite, they were visible to the collections specialists in the accounts receivable department. Id. ¶23.

Seeking to collect on the May Invoices, the collections specialist contacted Client X, and was informed that Client X had not received the May Invoices. Id. ¶¶26-28. The collections specialist then sent Client X the May Invoices, which the client paid. Id. ¶28. The collections specialist did not communicate with Hohmann before contacting Client X regarding payment of the May Invoices. Id. ¶26. Hohmann concedes that the collections specialist did not do anything improper in sending the May Invoices to Client X and attempting to collect on them. Id. ¶29.

Unaware of the actions of the collections specialist, Hohmann reversed the May Invoices in mid-July and sent Client X invoices that contained the same fees for services rendered in March and April plus additional costs (the July Invoices). Id. ¶25. Client X had paid the May Invoices after being contacted by the collections specialist, id. ¶28, and then paid the July Invoices without noticing that they contained the same fees and costs for services rendered in March and April 2016 as the May Invoices had, thereby overpaying Seyfarth by about $170,000, id. ¶¶30-31.

In August 2016, Hohmann was contacted by the firm's Accounting Department regarding an “unallocated” payment made by Client X in excess of $170,000. Id. ¶31. Unallocated payments include payments received from clients that cannot be matched to invoices sent to them. Id. Hohmann investigated the issue and established that the $170,000 was the overpayment made by Client X in paying both the May and July Invoices, which contained the same fees and costs for services rendered in March and April 2016. Id. ¶32. On September 19, 2016, Hohmann reached out to Client X to inform them that they had made an overpayment of $170,000, explained she was not sure how that had happened, and asked Client X how they would like the overpayment refunded. Doc. No. 91-5 (email correspondence between Hohmann and Client X regarding overpayment); Doc. No. 92 ¶33. Hohmann does not recall alerting Michaelis, the billing and relationship attorney for Client X, or anyone else at the firm about the overpayment before reaching out to Client X. [5] Doc. No. 92 ¶34.

At around the same time, Hohmann informed Defendant's Boston Office Human Resources Manager, Tracy Dane-Deeney, and its Boston Office Administrator, Joanne McBride, that her disease was no longer in remission. Doc. No. 94-1 (Hohmann Dep. Tr.). There is no evidence that she told either Dane-Deeney or McBride that her disease required leave or other accommodation at that time.

On September 28, 2016, Client X's General Counsel contacted Michaelis asking for an explanation for the overpayment. Doc. No. 92 ¶38; Doc. No. 91-6 at 2. Defendant's Chief Financial Officer, Katherine Kohn began an investigation into the issue shortly thereafter. Doc. No. 92 ¶39. On September 30, 2016, Client X informed Michaelis that the damage to Defendant's relationship with Client X caused by the incident “was deep.” Id. ¶41. The General Counsel of Client X then told Michaelis as well as the co-managing partner of Defendant's Boston Office, Ariel Cudkowicz, that, for any pending matters, the CFO would have to sign off on the validity of any future bills before they were sent to Client X. Doc. No. 88-19 (email correspondence).

Seyfarth terminated Hohmann's employment on October 7, 2016. Id. ¶46. She was told that the reason for her termination was that the billing issue with Client X had been raised to the CFO. Id. ¶46 (response). Client X ended its relationship with Seyfarth one or two years later. Id. ¶44; Doc. No. 91 at 2.

II. LEGAL STANDARD

Summary judgment is appropriate when “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). “A genuine dispute is one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.” Flaherty v. Entergy Nuclear Operations, Inc., No. 18-1759, 2019 U.S. App. LEXIS 38236, at *22 (1st Cir. Dec. 23, 2019) (internal quotation marks and citation omitted). “Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party, who ‘may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.’” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). A court may enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

On a motion for summary judgment, courts are “obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” LeBlanc, 6 F.3d at 841. At the same time, courts may not “accept conclusory allegations, improbable inferences, and unsupported speculation.” Cherkaoui v. City of Quincy, [ 101 EPD ¶45,938] 877 F.3d 14, 18 (1st Cir. 2017) (internal quotation marks and citations omitted). “[T]he nonmovant must provide sufficiently supported evidence, without relying ‘upon mere allegation or denials of [the movant's] pleading,’ to establish a genuine issue for trial.” Id. at 24. “That is, the plaintiff must offer ‘significant probative evidence tending to support the complaint.” Id. (internal quotation marks, alterations, and citation omitted).

III. DISCUSSION

Hohmann alleges disability-based discrimination (Count I), retaliation (Count II), hostile work environment (Count III) [6] , and failure to accommodate (Count IV) under both the Americans with Disabilities Act (ADA), 42 U.S.C. 12112, and its state law equivalents, Mass. Gen. L. c. 151B(4)(16) (disability-based discrimination and hostile work environment) and c. 151B(4)(4) (retaliation and failure to accommodate). [7] Doc. No. 52 ¶¶38-47. Seyfarth moves for summary judgment as to all four Counts. Doc. No. 87.

A. Counts I and II (discrimination and retaliation)

Under the framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), “a plaintiff alleging an ADA claim for discriminatory firing has the initial burden of establishing a prima facie case by showing that [she] (1) was disabled within the meaning of the ADA, (2) was a ‘qualified individual,’ and (3) was discharged in whole or in part because of [her] disability.” Flaherty, 2019 U.S. App. LEXIS 38236, at *22-23 (citing Phelps v. Optima Health, Inc., [ 9 ADD ¶9-031] 251 F.3d 21, 24 (1st Cir. 2001)). “To establish a prima facie case of retaliation, Plaintiff must ‘show that (1) she undertook protected conduct; (2) she suffered an adverse employment action, and (3) the two were causally linked.’” Cherkaoui, 877 F.3d at 28 (quoting Noviello v. City of Bos., 398 F.3d 76, 88, (1st Cir. 2005)).

Once a plaintiff has established a prima facie case of discrimination or retaliation, the burden shifts to the defendant to produce evidence that shows it had legitimate, non-discriminatory or non-retaliatory reasons for the adverse employment action. “If the employer articulates such a reason, the burden shifts back to the plaintiff, who must then show, by a preponderance of the evidence, that the employer's proffered reason for the adverse employment action was pretextual and that the true reason was unlawful discrimination.” Flaherty, 2019 U.S. App. LEXIS 38236, at *23. [8] “[R]etaliation claims, both state and federal, are also governed by the McDonnell Douglas three-stage burden-shifting framework.” Cherkaoui, 877 F.3d at 28.

For purposes of deciding the motion for summary judgment, the Court assumes without deciding that Hohmann has made out a prima facie case of discrimination (Count I) and retaliation (Count II). As to both counts, Seyfarth has articulated a legitimate and non-discriminatory reason for terminating Hohmann's employment—that she failed to discuss her discovery of a significant overpayment by Client X with anyone at the firm before reaching out to the client to inform it about the overpayment. [9] Michaelis, the billing and relationship attorney was caught unawares and flat-footed when the General Counsel of Client X got in touch with him to ask how the overpayment had happened. Client X then proceeded to require that Defendant's CFO sign off on the validity of any future bills before they are sent to Client X—an indication that Client X's trust in Defendant's billing procedures had diminished. [10] Hohmann was fired less than 10 days after the overpayment and refund were first brought to Michaelis's attention, and only after the CFO initiated an investigation into the issue.

Hohmann has not come forward with any evidence to suggest that Defendant's stated reason for terminating her was pretextual. She argues, first, that Defendant's real reason for terminating her employment was that about two weeks before she was terminated, she told Defendant that her disease was no longer in remission. Doc. No. 91 at 8. But Defendant hired Hohmann with full knowledge of her disease and had, for nine years, accommodated her condition by allowing Hohmann to work from home one day a week and to arrive late or leave early when she was feeling ill without requiring her to provide notes from her doctor justifying these absences.

Second, Hohmann argues that “it is significant that another collection specialist outside of [her] protected class was not terminated when said specialist's error resulted in Client X mistakenly paying another client's invoice.” Doc. No. 107 at 8. “[T]he comparator billing specialist's erroneous actions did not result in termination.” Id. at n.6. This argument also fails. Leaving aside that there is no evidence that a collections specialist is an appropriate comparator to a billing coordinator, or that the collections specialist in question was not a member of Hohmann's protected class, the differences in the circumstances between those involving the collections specialist and those involving Hohmann undermine any determination that their differential treatment was the result of unlawful discrimination. The collections specialist issue involved an overpayment of less than $3,000, discovered during an exchange regarding the reconciliation of a series of invoices and payments. See Doc. No. 105-17. Here, the client overpaid by $170,000. And when Hohmann reached out to the client to inform them about the overpayment, she did so without first telling the billing attorney so he could prepare himself for the virtually-inevitable call from the client seeking to find out how an overpayment of such magnitude was allowed to happen.

Under these circumstances, Hohmann cannot prove by a preponderance of the evidence that Defendant's reason for terminating her was a pretext for unlawful discrimination. [11]

Hohmann also argues that her termination was a retaliation for her request to get access to the HUB—Defendant's billing software for submitting and managing electronic invoices—a request she had repeated as recently as two weeks before she was fired. But this argument also fails. For one thing, even assuming that Hohmann's request for access to HUB was “protected conduct,” [12] it is undisputed that she had been requesting access to HUB for three years before her termination. Hohmann provides no evidence from which a reasonable jury could infer that her latest request was the “but for” cause of her termination. Simon v. Harvard Vanguard Med. Assocs., Inc., No. 14-12558, 2015 U.S. Dist. LEXIS 154911, at *21 (D. Mass. Nov. 16, 2015) (Stearns, J.) (“The third element requires the showing of a ‘but for’ connection between [plaintiff's] protected activity and [defendant's] allegedly retaliatory action (his termination).”) (citing Univ. of Texas SW. Med. Ctr. v. Nassar, 570 U.S.338, 343 (2013)). [13] For another, there is no evidence that Hohmann ever tied her request to her disability—that is, that she asked for access to HUB to accommodate her disability rather than simply to do enable her to do her work more efficiently. On these facts, Hohmann cannot prove by a preponderance of the evidence that Defendant's reason for terminating her was a pretext for unlawful retaliation.

Therefore, the Court ALLOWS Defendant's motion for summary judgment as to Counts I (discrimination) and II (retaliation) of the Amended Complaint.

B. Count III (hostile work environment)

“The First Circuit has recognized that a hostile work environment tolerated by the employer is cognizable as an adverse employment action.” Delgado-Echevarria v. AstraZeneca, L.P., 133 F. Supp. 3d 372, 404 (D.P.R. 2015) (citing Noviello, 398 F.3d at 89 and Quiles-quiles v. Henderson, [ 12 ADD ¶12-102] 439 F.3d 1, 8 (1st Cir. 2006)). “A hostile work environment exists when harassment is so severe or pervasive as to alter the conditions of plaintiff's employment and create an abusive work environment.” Id. (citing Rivera v. Puerto Rico Aqueducts and Sewers Authority, 331 F.3d 183, 188 (1st Cir. 2003) and Ponte v. Steelcase, Inc., [ 97 EPD ¶44,999] 741 F.3d 310, 319-320 (1st Cir. 2014)).

To prove disability-based harassment by means of a hostile work environment, the plaintiff must show that she was “(1) disabled, (2) that [she] was subjected to a hostile environment, and (3) that the hostility was directed at [her] because of [her] disability.” Quiles, 439 F.3d at 5. In support of her disability-based hostile work environment claim, Hohmann points to several comments she alleges the administrator for Defendant's Boston Office, Joanne McBride, made that belittled and poked fun at her, including comments about her hair, shoes and attire. Doc. No. 92 ¶63. Hohmann also alleges that McBride aggressively hushed her in meetings, and that McBride made others think poorly of her. Id. ¶¶63-64.

Even assuming these allegations are true—and assuming too that the comments and conduct in question rise to the requisite level of severity or pervasiveness sufficient to trigger liability, see, e.g., O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001) (“[O]ffhand comments, and isolated incidents are not sufficient to create actionable harassment”) (internal quotation marks and citation omitted)—Hohmann provides no evidence to suggest that McBride's comments or conduct were directed at her because of her disability. Without such evidence, no reasonable jury can find Defendant liable for disability-based harassment by means of a hostile work environment because such a claim requires a showing that plaintiff “was subjected to harassment based on her membership in that class.” Eswarappa v. Cmty. Action Inc./Head Start, No. 14-14255, 2017 U.S. Dist. LEXIS 117849, at *20 (D. Mass. July 27, 2017) (Saylor, J.) (emphasis added); see also Navarro v. U.S. Tsubaki, Inc., 577 F. Supp. 2d 487, 509 (D. Mass. 2008) (Ponsor, J.) (hostile work environment claims under Chapter 151B require plaintiff to demonstrate that “the harassment was based on membership in the protected class”).

Therefore, the Court ALLOWS Defendant's motion for summary judgment as to Count III (hostile work environment).

C. Count IV (failure to accommodate)

“The first two elements of the prima facie case for failure to accommodate are the same as those for disability discrimination generally: (1) disability, and (2) that the plaintiff is capable of performing the job with reasonable accommodation. Failure to accommodate also requires a Plaintiff to show: (3) that [she] requested a reasonable accommodation, (4) that [her] employer refused the accommodation, and (5) that [she] suffered harm from the employer's refusal.” Murray v. Warren Pumps, LLC, No. 11-40176, 2013 U.S. Dist. LEXIS 130574, at *9-10 (D. Mass. Sept. 12, 2013) (Woodlock, J.), aff'd, 821 F.3d 77 (1st Cir. 2016) (internal citations omitted).

Hohmann contends that Defendant's failure to grant her access to HUB constitutes a failure to accommodate. Doc. No. 8-9. It does not. For one thing, “[t]he employee's request for an accommodation … ‘must be sufficiently direct and specific, and it must explain how the accommodation is linked to the [employee's] disability’ in order to trigger the employer's responsibility to accommodate.” Murray v. Warren Pumps, LLC, [ 17 ADD ¶17-042] 821 F.3d 77, 84 (1st Cir. 2016) (quoting Jones v. Nationwide Life Ins. Co., [ 5 ADD ¶15-101] 696 F.3d 78, 89 (1st Cir. 2012)). “The obligation is on the employee to provide sufficient information to put the employer on notice of the need for accommodation. This means not only notice of a condition, but of a causal connection between the major life activity that is limited and the accommodation sought.” Jones, 696 F.3d at 89 (internal quotation marks and citations omitted). As noted above, Hohmann provides no evidence to suggest that she ever tied her request for access to HUB to her disability.

For another, even if a reasonable factfinder could find that Hohmann tied her request for access to HUB to her disability, she cannot show that Defendant's denial of that specific request is actionable. She has offered no evidence to suggest that access to HUB was medically necessary, or that Defendant's other efforts to accommodate her disability—allowing her to work remotely one day a week [14] and to arrive late or leave early when she was not feeling well, for example—were insufficient accommodations. Bryant v. Caritas Norwood Hosp., [ 11 ADD ¶11-186] 345 F. Supp. 2d 155, 169 (D. Mass. 2004) (Woodlock, J.) (“[T]he ADA requires employers to offer a reasonable accommodation, not necessarily the accommodation sought.”); see also Gile v. United Airlines, [ 3 ADD ¶3-029] 95 F.3d 492, 499 (7th Cir. 1996) (“An employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation.”).

For these reasons, the Court ALLOWS Defendant's motion for summary judgment as to Count IV (failure to accommodate).

IV. CONCLUSION

For the reasons stated, Defendant's motion for summary judgment (Doc. No. 87) is ALLOWED in its entirety. The clerk shall close this case.

SO ORDERED.