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Massey-Diez v. University of Iowa Community Medical Services, Inc.

United States Court of Appeals, Eighth Circuit

June 27, 2016

Madonna Massey-Diez Plaintiff- Appellant
University of Iowa Community Medical Services, Inc. Defendant-Appellee

          Submitted: March 17, 2016

         Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

          BEAM, Circuit Judge.

         Madonna Massey-Diez, a physician assistant (PA) formerly employed by University of Iowa Community Medical Services, Inc. (UICMS), appeals the district court's[1] adverse grant of summary judgment on claimed violations of the Family and Medical Leave Act of 1993 (FMLA). We affirm.

         I. BACKGROUND

         A. Massey-Diez's Failure to Adhere to UICMS's Charting Policies

         Because this case comes to us on UICMS's motion for summary judgment, we portray the facts in the light most favorable to Massey-Diez. Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 818 F.3d 356, 360 (8th Cir. 2016). Massey-Diez began working for UICMS at its North Liberty, Iowa, clinic as a PA in September 2009 under a year-to-year employment contract. In 2011 UICMS adopted "EPIC, " a software program used to manage patient records, track patient phone calls, review laboratory tests, and handle prescription refills. Promptly updating a patient's medical information on EPIC after the patient's visit (also known as "charting") is important for billing and for presenting providers with current information about the patient. In order to encourage prompt charting, UICMS employs nonbinding "Standards of Excellence, " which require that dictation be done within 24 hours of a patient's visit and that once that dictation is transcribed, the transcription be reviewed and signed within the next 48 hours. The standards also require a patient's charting generally "be completed within seven days" of a patient's visit and that transcribed dictation in particular "be filed in the medical record within five working days of [a] visit."[2]

         Apart from the Standards of Excellence, UICMS also requires that providers follow its "Completion of Documentation Policy, " enforced through a disciplinary procedure. The policy defines a provider as "noncompliant" if he is responsible for thirty or more unsigned records that are, on average, fourteen or more days old. If a provider is noncompliant, he is subject to "Level 1" discipline, wherein he is formally notified of his noncompliance and given seven days to complete all delinquent charting. Failure to do so within the seven-day period subjects the provider to "Level 2" discipline, which consists of notice and paid leave until all delinquent charting is completed. Failure to complete all delinquent charting in fourteen days results in "Level 3" discipline, in which the provider's employment is suspended pending completion of all delinquent charting.

         Massey-Diez by all accounts provided excellent patient care. She had difficulty, however, with promptly updating patient records on EPIC. Providers were scheduled in back-to-back blocks of time, each allotted to a scheduled patient. Providers were expected to both attend to the patient and complete their charting within that period or to complete the charting at another time. These blocks were not long enough for Massey-Diez to do both, and apparently she was unsuccessful in having the clinic adjust her schedule to address this issue. North Liberty clinic manager Heidi Hansen advised supervisors about Massey-Diez's issue with updating patient records in a timely fashion as early as July 2012. By that fall, Massey-Diez had over 200 delinquent records. In a November 2012 e-mail exchange Hansen wrote UICMS executive director Terry Protextor, assistant administrator Mike Hayden, and Massey-Diez's supervising physician Dr. Powers to express her "concern[] about Madonna and how far back her missing notes go." Dr. Powers replied to Protextor, Hayden, and Hansen:

I was ready to address this head on today at Madonna's review, and then it was cancelled because of her not feeling well.
I am very concerned as her supervising physician. I am almost to the point where I would not want her on my license any longer. Not only should these notes have been done, but I should have been reviewing 10% of them.
I was going to propose a probationary period (? How long) where she MUST complete these notes, while also continuing work at the clinic. If this fails, then I would suggest work suspension.
The overlying factors are her home and family stress. Yet, those problems are now vigorously spilling over into work. Not only with incomplete work, but with many missed days or 1/2 days.
. . . .
I really want to CC her on this email, but will not. Rather, Mike, Heidi, and I should complete her review ASAP. Before then, we all need to come to consensus on how SHE will handle this problem.

         Massey-Diez subsequently received a "below expectations" rating on a performance evaluation for prioritizing and completing work assignments on time. She received notice of Level 1 discipline on November 30, 2012, and notice of Level 2 discipline in early December. Sometime in December, she caught up on her charting. She fell behind again the following February 2013. On March 21 she reached Level 2 discipline for the second time.

         Also on March 21, 2013, Massey-Diez attended a meeting with Protextor, Hayden, and Hansen. They discussed her tardy charting and agreed to try a new "open" scheduling method that might give Massey-Diez the opportunity to complete charting between patients. The meeting minutes describe some "Take-aways": "1) by the end of next week notes have to be caught up so you are w/in 48 hours to current"; and "2) For 90 days stay current (gave exception for outliers). Expectation is the UICMS standard of 48 hours." Additionally, a "Counseling & Disciplinary Action Report" signed by Massey-Diez stated: "Expectation is that charting will be current within one week and kept current for the next 90 days. If Madonna is not compliant with this then contract may not be renewed." Massey-Diez testified that she did not leave that meeting with the understanding that the renewal of her contract was in jeopardy and that she believed that during the 90-day period her objective was to stay in compliance with the Completion of Documentation Policy, rather than the 48hour standard. In an April 3 e-mail, however, Massey-Diez described her "knowing there is no intent to renew my contract in September." In another, April 15, e-mail, she described the subjects discussed at the March 21 meeting as including "48 hour turnaround on notes, [and] intent to not renew my contract in September." Massey-Diez caught up on her charting, but she fell behind once more in May and June of 2013.

         B. Massey-Diez's FMLA Leave and UICMS's Decision Not to Renew Her Employment Contract

         On June 17, 2013, Massey-Diez broke her foot and took FMLA leave for a serious medical condition. Her leave ran until June 30, at which point it became intermittent, and it ended on July 8. As of the date she took leave, she had as many as thirty-one incomplete charts that were five or more days old and so was in violation of the 48-hour turnaround time agreed to in the March 21 meeting. At that time, however, she was compliant under the Completion of Documentation Policy. While she was on FMLA leave, Massey-Diez was contacted for information on when she would return to work. She also was asked to attend to her EPIC inbox and the EPIC inbox of another employee named Savita from home. This included responding to patient phone calls, attending to prescription refills, sending messages, performing triage, and reviewing laboratory tests. Massey-Diez testified that at no point while on FMLA leave did she decline to perform the work requested of her nor did she express any reservations about doing so. Further, Massey-Diez testified that no one at UICMS stated or implied that her failure to comply with directives to work would result in an adverse employment action. She also testified: "When they were asking me to do things from home, I basically did it because I felt like I had to"; and, "[I]t wasn't a question of will you do this. It was basically I need you to do this." On June 26, Massey-Diez came into the clinic for part of a day to see patients before her foot was fully healed.

         The record presents the following specific communications between Massey-Diez and UICMS: On June 17, Hansen text messaged Massey-Diez to ask, at the suggestion of Dr. Powers, whether she would be able to see patients while she was on crutches. Massey-Diez indicated she could not. On June 21, Hansen text messaged Massey-Diez that she had heard from Dr. Powers that Massey-Diez may be back the next week. Massey-Diez replied that she planned to try but that she did not want to commit to doing so at that time. She also stated in her reply: "I have kept up with my inbox since I've been out. Hopefully this has helped the docs somewhat." Massey-Diez indicated that she hoped her time spent on her inbox and possibly transitioning back to part-time could offset her depletion of paid time off (PTO) while on FMLA leave so that she would retain some PTO to use to visit her family later that summer. Hansen suggested that Hayden may have some ideas for how Massey-Diez could return to work given her injury. Massey-Diez e-mailed Hayden that day:

Heidi recommended I contact you as she said you had a couple of ideas on me possibly returning to work on Monday, part time if tolerated. I'm definitely open for suggestions.
I have continued to handle my inbox and help with Savita's in box from home. Hopefully this has helped the docs in the clinic...
I will be on and off EPIC today.

         Hayden responded, suggesting she could either see patients on a part-time basis or in a modified exam room, "abstract" patient charts at her desk, or both. Massey-Diez did not reply to this e-mail, and she testified that she objected to the fact "that he was even giving me the option to work ...

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