Submitted: March 17, 2016
from United States District Court for the Southern District
of Iowa - Davenport
MURPHY, BEAM, and GRUENDER, Circuit Judges.
Massey-Diez, a physician assistant (PA) formerly employed by
University of Iowa Community Medical Services, Inc. (UICMS),
appeals the district court's adverse grant of summary
judgment on claimed violations of the Family and Medical
Leave Act of 1993 (FMLA). We affirm.
Massey-Diez's Failure to Adhere to UICMS's Charting
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."
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.
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
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
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
. . . .
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
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.
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.
Massey-Diez's FMLA Leave and UICMS's Decision Not to
Renew Her Employment Contract
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.
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.
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 ...