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Kumar v. UPMC Physician Services

June 28, 2006


The opinion of the court was delivered by: Conti, District Judge


In this memorandum order, the court considers the motion for summary judgment filed by defendant UPMC Physician Services ("defendant" or "UPP") with respect to the claims of plaintiff Sudha Kumar ("plaintiff or "Kumar") for interference with her rights under the Family and Medical Leave Act of 1993, 28 U.S.C. § 2901 et seq. ("FMLA"), and retaliation under the FMLA, as well as her common law claims for intentional infliction of emotional distress and negligent infliction of emotional distress. After considering the motion, the joint statement of material facts, and the briefs submitted by the parties, the court will grant defendant's motion in its entirety.

Factual Background and Procedural History

On January 19, 2000, plaintiff was hired for the position of Billing Specialist 1 by UPP. Joint Statement of Material Facts ("J.S.") ¶ 1. The responsibilities of a Billing Specialist 1, as stated in the job description, included:

Perform duties and job responsibilities in a fashion, which coincides with the service management philosophy of the UPP including the demonstration for the basics of service excellence towards patients, visitors, staff, peers, physicians and other departments within the medical center.

* Follow-up with payors and subscribers as applicable on all unpaid claims in a timely fashion as defined to ensure timely reimbursement.

* Validates successful transmission of claims to insurance carriers and intermediaries on assigned claims while performing claim follow-up.

* Verify insurance benefits information with all available carriers via on-line electronic system or telephone with payors and/or subscribers as required.

* Initiate and follow-up the appeal of claims based on the criteria met on a timely basis.

* Review claim denials from the rejection report and perform claim follow-up based on policy.

* Review demographic and insurance information on a routine basis and update the patient/guarantor as required to ensure accuracy of claims and statement filing .

* Daily processing of all paper claims including review, attachments, stuffing in envelopes.

* Perform other duties as assigned by your supervisor.

Id. ¶ 2. Plaintiff's primary responsibility was to process and mail claims timely to certain insurers, or "payors," in order to obtain payment for medical services rendered to patients by UPMC physicians. Id. ¶ 3. The form used to submit a particular claim to payors is printed by a computer and includes, among other information, the date the medical services were provided (the "date of service") and, on the bottom left corner of the form, the date on which the computer prints out a particular claim (the "claim date") for processing by the billing specialists. Id. ¶ 4.

Plaintiff regularly gave all claim forms to her supervisor, Donald Marzullo ("Marzullo"), who would then mail them to the payors. Id. ¶ 21. When the claims were ready to be mailed to the payors, plaintiff would remove any "post-it" stickers she may have placed on the claim forms when she was working on them, and plaintiff would give the originals of the claim forms to Marzullo for mailing. Id. ¶ 22. No copies of the claim forms were made. Id.

Plaintiff was responsible for processing claims for Gateway and Med. Id. ¶ 5. Pursuant to UPP's contract with payor Gateway, claims for services provided to patients were required to be submitted to Gateway for payment within 180 days of the date of service. Id. ¶ 6. UPP's contract with payor Med required the claims for services provided to patients to be submitted for payment within 90 days of the date of service. Id. If the claims were not submitted to the payors within the specified time, the contracts stipulated that the payors would deny the claims as untimely, and UPP would consider the amount claimed as lost revenue. Id.

UPP's Family and Medical Leave of Absence Policy (the "policy"), which incorporated the requirements of the FMLA, provided:

Staff members shall be granted an FMLA [leave of absence] for up to 12 weeks for any qualifying event [such as serious health conditions of an employee or specified relatives] in any rolling 12-month period. The 12-month period includes the 12 months preceding the first day of the FMLA [leave of absence] being requested by the staff member.

Id. ¶ 7. Under the policy, whenever an employee made a request for FMLA leave of absence, UPP looked back over the 52-week period immediately preceding the date of the requested FMLA leave of absence in order to determine whether the employee exhausted her twelve weeks, or 480 hours, of FMLA leave of absence entitlement. Id.

On September 17, 2002, plaintiff was involved in a non-work-related automobile accident, and, according to plaintiff, sustained an injury to her back. Id. ¶ 8. Plaintiff was granted an FMLA leave of absence due to her back injury from September 23, 2002 through November 5, 2002. Id. ¶ 9. This period of leave was continuous; that is, plaintiff performed no work during this period. Id. In addition to her initial FMLA leave of absence from September 23, 2002 through November 5, 2002, plaintiff was granted FMLA intermittent leave of absence due to her back injury during the periods November 11, 2002 through January 17, 2003, and January 30, 2003 through July 10, 2003. Id. ¶ 10. Plaintiff was also granted FMLA intermittent leave to care for her ill mother from June 24, 2003 through July 3, 2003. Id. Plaintiff's total FMLA leave from September 23, 2002 through July 10, 2003 was for 507 hours. Id.

Despite plaintiff having exhausted her entitlement to 480 hours of FMLA leave pursuant to the "rolling" twelve-month period commencing September 23, 2002, as provided in UPP's policy, plaintiff was granted additional continuous leaves of absence under UPP's Personal Leave of Absence Policy ("PLOA") to care for her ill mother during the periods of July 11, 2003 through August 6, 2003, August 25, 2003 through August 28, 2003, and September 8, 2003 through September 19, 2003. Id. ¶ 11. On September 23, 2003, plaintiff again became entitled to FMLA leave of absence under the rolling twelve-month period of UPP's policy. Id. ¶ 22. Plaintiff was granted another continuous FMLA leave of absence to care for her ill mother from January 28, 2004 through February 24, 2004. Id.

According to plaintiff, UPP's Human Resources representative approved each of the FMLA leaves of absence described above. Id. ¶ 27. Plaintiff also stated that every time she returned from FMLA leave, she was reinstated to her regular job, and, prior to her employment termination, she was never given any problem or difficulties when she returned from any of her previous FMLA leaves of absence. Id.

Plaintiff's immediate supervisor was Marzullo, who reported to UPP's Billing Manager, Marsha Drakulic ("Drakulic"). Id. ¶ 13. On January 20, 2004, Drakulic met with plaintiff to discuss plaintiff's backlog of unprocessed claims prior to the commencement of plaintiff's leave on January 28, 2004. Id. ¶ 14. At the meeting, Drakulic asked plaintiff the oldest claim date of the backlog of her unprocessed claims. Id. Plaintiff told Drakulic that the earliest date on any of her unprocessed claims was December 4, 2003. Id. Drakulic asked plaintiff to try and finish the work on her desk prior to taking her leave. Ex. A at 54 (Pl. dep.).*fn1 Specifically, plaintiff testified:

[Drakulic] never specified the dates, she just told me whatever it is on the desk, try to finish it, whatever you can. This is the first time ever she came on my desk and told me and I try to finish it, whatever I can.


While plaintiff was on her FMLA leave of absence from January 28, 2004 to February 24, 2004, Marzullo took whatever claims were deposited on plaintiff's desk during her leave so that he could process the claims himself or assign the claims to be processed by another billing specialist in order to avoid plaintiff having to face a large backlog of claims when she returned from her FMLA leave of absence. Id. ¶ 15.

Marzullo testified that, on February 27, 2004, upon approaching plaintiff's cubicle to retrieve some mailing labels, he observed a manila file folder on plaintiff's desk containing 128 original claims dating back to June 2003 and the vast majority dating back to early November 2003. Id. ¶ 16. Plaintiff did not dispute that testimony prior to her termination, but in her deposition on March 18, 2005 -- approximately one year after her termination -- testified that the 128 claims were not on her desk when she left on intermittent leave on January 28, 2004. Id.; Ex. A at 20-26.

On March 5, 2004, after plaintiff returned from her FMLA leave of absence, Drakulic and Marzullo met with plaintiff. J.S. ¶ 17. At that meeting, Drakulic showed plaintiff the originals of the 128 claim forms which, Drakulic explained, Marzullo found on plaintiff's desk on February 27, 2004. Id. ¶¶ 17, 19. The claims shown to plaintiff were claims to be submitted to Gateway and Med. Id. ¶ 18. At the March 5, 2004, meeting, plaintiff acknowledged that she was responsible for processing claims for Gateway and Med and stated that she may have forgotten to mail them. Ex. A at 18-26. Approximately one year later, at her March 18, 2005 deposition, plaintiff, however, testified that, at the meeting, she assumed that the claims were her responsibility because they were claims to be referred to Gateway and Med. Id. Upon looking at the dates of the claims and their lack of yellow post-it-notes, plaintiff testified at her deposition that the claims could not have been her responsibility. J.S. ¶ 18. Plaintiff ...

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