Flora Parkhurst v. Am. Healthways Servs. , 700 F. App'x 445 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0380n.06
Case No. 16-6502
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
FLORA PARKHURST, ) Jun 27, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
AMERICAN HEALTHWAYS SERVICES, ) TENNESSEE
LLC, )
)
Defendant-Appellee. )
BEFORE: GIBBONS, COOK, and GRIFFIN, Circuit Judges.
COOK, Circuit Judge. For eleven years, Flora Parkhurst worked as a nurse for American
Healthways Services (AHS) until it fired her in February 2014. Parkhurst then sued AHS,
alleging that her termination was the product of age discrimination in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., disability discrimination in
violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and
retaliation in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.
The district court granted summary judgment to AHS, concluding that Parkhurst failed to show
that its legitimate, nondiscriminatory reason for terminating her—poor job performance—was a
pretext for unlawful discrimination or retaliation. We AFFIRM.
Case No. 16-6502, Parkhurst v. Am. Healthways Servs.
I.
A. Factual Background
AHS contracts with employers and health insurers to provide wellness programs to their
employees and insureds, respectively. One of AHS’s services is the Well-Being Improvement
Center (WBIC), a call center in which “Telephonic Nurses” provide clinical advice to AHS
enrollees, or “members.” During most calls, Telephonic Nurses help members manage chronic
ailments like heart disease and diabetes.
In December 2002, AHS hired Parkhurst as a Telephonic Nurse at its Franklin,
Tennessee, WBIC. A little over ten years later, in January 2013, Lori Koyuncu took over as
Parkhurst’s supervisor. At the time, Parkhurst was 59 and suffered from an abnormal heart
rhythm that she claims is a disability under the ADA.1 Surgery to treat this condition required
her to take ten days off in October 2013. Parkhurst provided Koyuncu advance notice of the
surgery. She also applied for and received leave under the FMLA to cover her absence.
Meanwhile, Parkhurst struggled to keep up with the demands of her job. AHS evaluates
Telephonic Nurses’ productivity using a metrics-based system that tracks their attempted and
successful calls per hour. To qualify as a successful call, the nurse must address a prescribed list
of topics with the member. In 2013, AHS required Telephonic Nurses to make an average of
5.55 call attempts per hour and 1.05 successful calls per hour. That October, however, Parkhurst
averaged only 3.17 call attempts and 0.51 successful calls per hour, prompting Koyuncu to place
Parkhurst on a Written Performance Improvement Plan the next month (“November PIP”). The
plan aimed to help Parkhurst meet AHS’s productivity requirements.
1
AHS conceded this point in moving for summary judgment. We thus assume it to be
true without deciding the issue.
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Case No. 16-6502, Parkhurst v. Am. Healthways Servs.
Parkhurst claims that, beginning that November, Koyuncu made the following comments
to her, or something like them, in discussing her performance:
 “Well, the reason you’re not meeting your metrics is probably because you’re not
feeling well. It’s probably—you know, maybe you need to find a job closer to
home.”
 “At your age it’s very—it’s hard to keep up.”
 “Healthways is very—is a different company now. It’s very difficult to keep up.”
 “Well, you need to probably think about a job closer to home. Your health is an
issue. You have had a lot of health issues.”
 The responses, “Oh, again?” or “Okay,” when Parkhurst submitted paperwork related
to her request for FMLA leave.
 “Isn’t it time for you to retire? Why don’t you retire? You drive so far to work.
Have you considered another job, a job that’s not so fast-paced?”
Over the next two-and-a-half months, Parkhurst’s average call attempts and successful
calls per hour improved, but they never reached AHS’s minimum requirements: 2
Dates Attempted Calls Per Hour Successful Calls Per Hour
11/1/13–11/15/13 4.10 0.90
12/30/13–1/4/14 3.16 0.50
1/6/14–1/11/14 4.41 0.97
1/13/14–1/18/14 3.23 0.90
Consequently, on January 17, 2014, Koyuncu placed Parkhurst on another Written PIP
(“January PIP”). Earlier that month, AHS had increased its successful call attempts per hour
requirement from 1.05 to 1.50, and its attempted calls per hour requirement from 5.55 to 8.00.
The January PIP again endeavored to help Parkhurst achieve these new standards. Koyuncu met
with Parkhurst a few days after giving her the January PIP to discuss Parkhurst’s performance
2
The parties do not explain the gap in recorded metrics for the month of December, but it
appears from the record that the WBIC was not available to members during that time period. In
any event, Parkhurst makes no issue of this gap on appeal.
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and AHS’s updated metrics expectations. During the meeting, the supervisor explained to
Parkhurst that her failure to complete the new PIP could result in her losing her job.
Nevertheless, Parkhurst’s productivity remained largely stagnant after the January PIP:
Dates Attempted Calls Per Hour Successful Calls Per Hour
1/20/14–1/25/14 3.14 0.54
1/27/14–2/1/14 5.43 1.00
2/3/14–2/8/14 3.74 0.89
Citing Parkhurst’s failure to improve, Koyuncu placed Parkhurst on a Final Performance
Improvement Plan (“Final PIP”) on February 11, 2014. This PIP afforded Parkhurst a two-week
period to achieve the required 8.00 call attempts per hour and 1.50 successful calls per hour. The
plan made clear that her failure to meet these demands would result in termination. Parkhurst
fell short of meeting these requirements.
Dates Attempted Calls Per Hour Successful Calls Per Hour
2/10/14–2/15/14 5.27 0.74
2/17/14–2/22/14 4.55 1.44
AHS terminated Parkhurst, citing her poor productivity. Parkhurst admitted that she
expected to be fired because she had not met the WBIC performance metrics.
The Telephonic Nurses reporting to Koyuncu during this period ranged in age from 39 to
74. Ten nurses were within ten years of Parkhurst’s age: Debra Murdic (62), Cathy Orvis (67),
Stephanie Blansett (66), Lee Carrington (67), Mary Fowler (62), Lenoir Francisco (72), Barbara
Hill (74), Holly Mueller (59), Mozelle Smith (53), and Sherry Vasey (59). (Id.) Both Smith and
Vasey, like Parkhurst, used FMLA leave while under Koyuncu’s supervision. Three of the
nurses, Murdic, Fowler, and Vasey, still work at AHS. Another three, Hill, Mueller, and Smith,
voluntarily resigned from AHS but were satisfactory performers during the relevant period.
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Case No. 16-6502, Parkhurst v. Am. Healthways Servs.
B. Procedural Background
Parkhurst timely sued AHS, alleging that her termination constituted age discrimination
in violation of the ADEA, disability discrimination in violation of the ADA, and retaliation under
the FMLA. After discovery, AHS moved for summary judgment on all of Parkhurst’s claims,
arguing, in part, that Parkhurst could not prove that its stated reason for terminating her
employment—poor productivity—was pretext for unlawful discrimination or retaliation. The
district court agreed, granting summary judgment to AHS.
II.
We review the district court’s decision to grant summary judgment to AHS de novo,
affirming if the evidence demonstrates that no genuine issue exists as to any material fact and
that AHS is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Ramsey v. Penn Mut.
Life Ins. Co., 787 F.3d 813, 818 (6th Cir. 2015). A dispute is genuine if a reasonable jury could
return a verdict for Parkhurst. Tysinger v. Police Dep’t of Zanesville, 463 F.3d 569, 572 (6th Cir.
2006). “The court must view the evidence in the light most favorable to [Parkhurst] and draw all
reasonable inferences in [her] favor.” Id.
III.
We analyze all of Parkhurst’s claims using the same framework. When a plaintiff
presents circumstantial evidence of age discrimination in violation of the ADEA, disability
discrimination in violation of the ADA, or retaliation under the FMLA, we apply the burden-
shifting approach set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
See Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 432–33 (6th Cir. 2014);
Geiger v. Tower Automotive, 579 F.3d 614, 622 (6th Cir. 2009). Under this framework, a
claimant has the initial burden of establishing a prima facie case of unlawful discrimination or
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Case No. 16-6502, Parkhurst v. Am. Healthways Servs.
retaliation under the applicable statute. See McDonnell Douglas, 411 U.S. at 802. If the
claimant can clear that hurdle, the burden shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the adverse employment action at issue. See id. Should the
employer successfully do so, the burden reverts to the claimant, who must show that the
employer’s proffered reason was in fact pretext for a discriminatory or retaliatory motive, or else
face dismissal of her claims. See id. at 804.
The district court determined that Parkhurst satisfied the appropriate prima facie burdens
to show age discrimination, disability discrimination, and FMLA retaliation.3 It concluded,
however, that she failed to present sufficient evidence to create a genuine issue of material fact
that AHS’s stated reason for firing her—poor job performance—was pretext for unlawful
discrimination or retaliation. On appeal, Parkhurst argues that the district court erred at this last
step. We disagree.
“[A] plaintiff can show pretext in three interrelated ways” by showing: “(1) that the
[employer’s] proffered reasons [for the adverse employment action] had no basis in fact, (2) that
the proffered reasons did not actually motivate the employer’s action, or (3) that they were
insufficient to motivate the employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th
Cir. 2009) (citing Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 460 (6th Cir. 2004)). In
assessing the evidence before us, we keep in mind that “[p]retext is a commonsense inquiry: did
the employer fire the employee for the stated reason or not?” Id. at 400 n.4.
When a plaintiff argues a did-not-actually-motivate theory of pretext, as Parkhurst does
here, she “admits the factual basis underlying the employer’s proffered explanation and further
3
AHS does not contest this holding on appeal. We thus assume without deciding that
Parkhurst made out prima facie cases of discrimination under the ADA and ADEA, and
retaliation under FMLA.
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admits that such conduct could motivate dismissal[.]” Bhama v. Mercy Mem’l Hosp. Corp.,
416 F. App’x 542, 551 (6th Cir. 2011) (citation omitted). To prove her case, “the plaintiff argues
that the sheer weight of the circumstantial evidence of discrimination makes it more likely than
not that the employer’s explanation is a pretext, or coverup.” Id. (citation and internal quotation
marks omitted).
Here, Parkhurst acknowledges that she failed to meet AHS’s productivity standards for
its Telephonic Nurses, despite being given three opportunities—in the form of PIPs—to do so
over several months. She also concedes that AHS retained six nurses on Parkhurst’s team
around the same age as or older than Parkhurst who were satisfactory performers; and that AHS
retained two nurses on Parkhurst’s team who also took FMLA leave under Koyuncu’s
supervision. Parkhurst nonetheless contends that her poor performance at AHS did not actually
motivate its decision to fire her, relying on: (i) the string of age-, disability-, and health-related
comments Koyuncu allegedly made to her beginning in November 2013 concerning her ability to
keep up with the demands of her job, and (ii) the temporal proximity between her FMLA leave
and her termination. She also suggests, for the first time on appeal, that pretext is established
because AHS held her to a higher standard than the other Telephonic Nurses.
We begin by addressing Koyuncu’s alleged comments. Although a supervisor’s
statements concerning an employee’s age, disability, or requested FMLA leave can be probative
of discriminatory or retaliatory intent, “isolated and ambiguous comments are too abstract, in
addition to being irrelevant and prejudicial, to support a finding” of unlawful discrimination.
Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993) (citation and internal quotation
marks omitted); see also Hartman v. Dow Chem. Co., 657 F. App’x 448, 456 (6th Cir. 2016);
Rosso v. A.I. Root Co., 97 F. App’x 517, 521 (6th Cir. 2004).
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Case No. 16-6502, Parkhurst v. Am. Healthways Servs.
The references to age, retirement, and health in Koyuncu’s statements (listed above) are
isolated and ambiguous. See Phelps, 986 F.2d at 1025. They do not evidence FMLA-, age-, or
disability-related animus. First, Koyuncu’s purported responses of “Oh, again?” and “Okay” to
Parkhurst’s leave request are simply too vague to decipher. Because these are the only
comments that are connected, in any way, with Parkhurst’s request for FMLA leave, we find
there was no FLMA-related animus. Similarly, we question whether Koyuncu’s statement about
AHS being a “different company” where it is “very difficult to keep up” is clear enough to
support a claim of disability or age discrimination. And although the four other age-and health-
related remarks appear problematic in isolation, they could just as easily be interpreted in context
as expressions of sympathy and concern for Parkhurst. See Blizzard v. Marion Tech. Coll., 698
F.3d 275, 287 (6th Cir. 2012) (employer’s comment to plaintiff that he was “lazy and didn’t
work and wasn’t doing his job and had been there too long” was ambiguous because it could
“just as easily refer to tenure” and therefore was not probative of age discrimination); Phelps,
986 F.2d at 1025–26 (concluding that a comment that the plaintiff’s fifty-fifth birthday “was a
cause for concern” was “too ambiguous to establish the necessary inference of age
discrimination”); accord Curry v. Brown, 607 F. App’x 519, 523–24 (6th Cir. 2015) (concluding
that supervisor’s comment that employee “should probably focus on her health rather than worry
about the stress of supervising people” was not direct evidence of FMLA-leave retaliation in part
because the comment “could instead be inferred as conciliatory in that [the supervisor] was
encouraging [the plaintiff] to think about her health”). At best, Parkhurst’s disability-
discrimination claim turns on whether Koyuncu’s two comments about Parkhurst finding a job
closer to home because of her health issues provide sufficient evidence of a discriminatory
motive. And her age-discrimination claim turns on (i) Koyuncu’s remark that it was difficult for
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Parkhurst to keep up at her age, and (ii) Koyuncu’s questioning as to whether Parkhurst had
thought about retiring or finding a different job. On this record, neither pair of comments is
concrete enough to support a finding of discriminatory animus. The comments, alone, are
insufficient to allow a reasonable jury to find it more likely than not that Parkhurst’s
performance was pretext for FMLA-, age-, or disability-related retaliation, even when drawing
all reasonable inferences in her favor.
Further, context matters: Koyuncu allegedly uttered the remarks during conversations
about Parkhurst failing to meet her metrics. That Koyuncu may have acknowledged Parkhurst’s
age or health as possible explanations for her poor performance is beside the point. The remarks
do not undercut AHS’s claim that deficient productivity—whatever the conjectured cause—was
the basis for Parkhurst’s termination. See Clark v. Walgreen Co., 424 F. App’x 467, 472, 474
(6th Cir. 2011) (per curiam) (concluding that supervisor’s post-FMLA leave, health-related
comments to plaintiff, including statement that “because of your health, we’re just going to go
ahead and terminate you,” “appear[ed] to address [plaintiff’s] post-leave job performance as a
function of his health” and therefore failed to show direct evidence of FMLA retaliation, nor did
it support an inference of pretext in light of the great weight of the evidence concerning
plaintiff’s “malfeasance”).
We turn next to the temporal proximity between Parkhurst’s surgery, her associated
FMLA-leave, and the termination of her employment. Such evidence bears only on her FMLA-
retaliation claim and, potentially, her ADA-discrimination claim. Although “suspicious timing is
a strong indicator of pretext,” it is so only “when accompanied by some other, independent
evidence” of discrimination or retaliation. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d
274, 285 (6th Cir. 2012) (quoting Bell v. Prefix, Inc., 321 F. App’x 423, 431 (6th Cir. 2009)).
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Parkhurst underwent cardiac surgery in October 2013, taking ten days of FMLA leave that
month. AHS terminated her employment in February 2014, over four months later. A four-
month lapse between Parkhurst’s FMLA leave and her termination, when considered alongside
her documented underperformance, is hardly “suspicious.” But even if considered so, that fact
alone cannot support an inference of discriminatory or retaliatory motive given the lack of other
circumstantial evidence in this case. See Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th
Cir. 1986) (“The mere fact that [plaintiff] was discharged four months after filing a
discrimination claim is insufficient to support an interference of retaliation.”).4 Koyuncu’s
comments do not provide enough circumstantial evidence to overcome this hurdle.
Finally, we address Parkhurst’s argument that AHS subjected her to different productivity
standards than the other Telephonic Nurses. Specifically, she says that her team members only
needed to satisfy the attempted calls per hour metric, or the successful calls per hour metric, but
not both. In support of this claim she alleges the existence of an AHS document that shows
comparative performance. She also identifies Mozelle Smith as an employee on a performance
improvement plan who was held to a lower standard. Since Parkhurst failed to raise it below, we
consider it forfeited. Hayward v. Cleveland Clinic Found., 759 F.3d 601, 615 (6th Cir. 2014)
(citing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008)); Bhama, 416 F. App’x
at 552 (citations omitted). In any event, Parkhurst herself testified that all Telephonic Nurses on
Koyuncu’s team were required to meet the same productivity standards, thus belying her new
stance. And she has failed to produce the alleged document and did not depose Smith or anyone
4
Parkhurst requested FMLA leave three other times during the period Koyuncu
supervised her: once for health reasons, which AHS granted, and twice to care for her spouse,
both of which AHS denied. These other leave requests occurred several months before her
October 2013 surgery. Thus, to the extent that Parkhurst’s argument hinges on these other leave
requests, we find the timeframe too attenuated to show pretext, for the reasons already discussed.
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else who could corroborate her claims. Even if we were to credit her claim now, the argument is
a non sequitur: Parkhurst failed to meet either metric, so her performance would have been
deficient even if AHS had held her to the same purported standard as other employees.
In sum, Koyuncu’s alleged comments and the four-month gap between Parkhurst’s
surgery and termination do not provide enough to infer that what actually motivated AHS’s
decision to fire Parkhurst was her age, alleged disability, or FMLA leave, rather than her
documented performance deficiencies.
IV.
We AFFIRM the district court’s judgment.
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