IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (CINCINNATI)

Tamara S. Bates, :

Plaintiff, : Case No. 1:18-cv-502

vs. : Judge Michael R. Barrett

Anthem Insurance Companies, Inc., :

Defendant. :

DEFENDANT ANTHEM INSURANCE COMPANIES, INC.’S MOTION FOR 

SUMMARY JUDGMENT 

Defendant Anthem Insurance Companies, Inc. (“Defendant” or “Anthem”) hereby moves 

this Court, pursuant to Federal Rule of Civil Procedure 56, for an order granting it summary 

judgment on Plaintiff Tamara Bates’ (“Plaintiff” or “Bates”) claims. Because there is no genuine 

dispute of material fact with respect to any of Plaintiff’s claims, Anthem is entitled to judgment 

as a matter of law. A Memorandum in Support of Anthem’s Motion is filed herewith.

Dated: October 10, 2019 Respectfully submitted, 

/s/ Jocelyn M. Hoffman

Natalie M. McLaughlin (#0082203) (Trial 

Attorney)

Jocelyn M. Hoffman (#0092365)

Vorys, Sater, Seymour and Pease LLP

52 East Gay Street

P.O. Box 1008

Columbus, OH 43216-1008

Telephone: (614) 464-5452

Facsimile: (614) 719-5252

Email: nmmclaughlin@vorys.com; 

jmhoffman@vorys.com 

Attorneys for Defendant Anthem Insurance

Companies, Inc.

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MEMORANDUM IN SUPPORT

I. INTRODUCTION

Plaintiff brings claims against her former employer, Anthem, alleging: (1) disability 

discrimination; (2) wrongful termination in violation of public policy; (3) Family Medical Leave 

Act (“FMLA”) retaliation; and (4) intentional infliction of emotional distress (“IIED”). Plaintiff 

cannot establish a genuine issue of material fact as to any of these claims.

Plaintiff was terminated for egregious and willful call avoidance, in accordance with 

Anthem’s Call Avoidance policy. That policy mandates termination if a trace report shows an 

associate engaged in call avoidance, which includes transferring calls back into the telephone

queue that an associate is trained to handle. Anthem received two complaints from Plaintiff’s 

colleagues and one complaint from a provider that Plaintiff was engaging in call avoidance. 

Trace reports were run to investigate Plaintiff after the complaints were made. These reports

showed that in a period of just two and a half weeks, Plaintiff transferred 26 calls back into the 

queue which she was able to and should have handled. 

Neither Plaintiff’s past FMLA leave nor any purported disability had any bearing on

Anthem’s decision to terminate Plaintiff’s employment. Plaintiff took FMLA leave because of 

two elective surgeries. At the time of her termination—months after the second elective 

surgery—Plaintiff was not suffering from any ongoing limitations stemming from either of the 

elective surgeries. The manager who terminated Plaintiff’s employment had only met her in 

person once. He was not involved in reviewing or approving Plaintiff’s FMLA leave, was not 

provided with any specifics about the reasons for her FMLA leave, was not aware of Plaintiff 

having any ongoing limitations (as she had none), and did not perceive Plaintiff to be disabled. 

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Therefore, Anthem respectfully requests that this Court grant Anthem’s Motion for 

Summary Judgment, dismissing Plaintiff’s claims in their entirety. 

II. STATEMENT OF FACTS

A. Anthem

1. Utilization Management Representatives and Anthem’s Behavioral 

Health Department

Anthem operates as an insurance company, providing life, dental, vision, disability, and 

health insurance services across the United States. To administer its insurance services, Anthem 

employs Utilization Management Representatives (“UMR”) in various departments who are 

responsible for, among other things: managing incoming calls; determining contract and benefit 

availability; providing authorization for inpatient admission, outpatient pre-certification, prior 

authorization, and post-service requests; and referring cases for review for clinicians. 

(Deposition of Justin Parcell1(hereinafter “Parcell Dep.”) Ex. B.) Put simply, UMRs take 

incoming phone calls and then “build cases,” or enter data necessary to authorize care or confirm 

insurance coverage. (See Deposition of Tamara Bates2(hereinafter “Bates Dep.”) at 138:3.) 

Upon hire, UMRs receive six to eight weeks of on-the-job training to ensure that they are 

able to access and utilize all of the telephonic and computer software programs necessary to 

perform their duties and properly direct calls. (See Bates Dep. at 42-46; Parcell Dep. at 53:10-

20.) UMRs also undergo ethics and compliance training. (Bates Dep. at 45:12-21; Parcell Dep. 

at 53:10-20.) 

UMRs employed in Anthem’s Behavioral Health department are responsible for taking 

three types of incoming calls: member, provider, and crisis. (See Bates Dep. at 56-60; see also 

 

1 Relevant portions of Justin Parcell’s deposition transcript and the exhibits thereto are attached as Exhibit A.

2 Relevant portions of Tamara Bates’ deposition transcript and the exhibits thereto are attached as Exhibit B.

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Parcell Dep. at 34-36.) Members are individuals who have Anthem insurance coverage, while 

providers are facilities like hospitals, physicians’ offices, and outpatient care centers that provide 

behavioral health services. (See Bates Dep. at 56:6-10.) The most critical type of call is a crisis 

call, which involves an individual having a behavioral health crisis (e.g., threatening harm to 

others or suicide). (See id. at 57:9-58:12.) When a UMR receives a crisis call, the call must 

immediately be directed to an Anthem clinician. (See id. at 58:13, 59:1.) UMRs cannot 

determine before they answer a call whether it is a member, provider, or crisis call. (Parcell Dep. 

at 34:13-15.) Obviously, there can be significant consequences if a UMR mishandles a call, 

which can impact customer service and safety.

2. Anthem’s Corrective Action and Call Avoidance Policies

Anthem’s Corrective Action policy delineates examples of unacceptable conduct that 

interferes with company operations. (See Bates Dep., Ex. 7 at 2.) One example of such 

unacceptable conduct is “intentionally disconnecting a customer/member call, call avoidance, or 

disrupting customer service.” (See id.) Under this policy, Anthem may terminate an associate at 

any time, “without following any formal system of corrective action or progressive discipline,” if 

an associate engages in any sort of unacceptable conduct. (Id. at 1.)

Call avoidance is of such concern to Anthem that it maintains a policy solely to explain 

and address this unacceptable conduct. (Bates Dep. Ex. 8.) The policy defines the “failure to 

appropriately service all calls” as call avoidance, and provides several examples of call 

avoidance, including transferring calls that the associate is trained to handle back into the 

telephone queue. (Id.) Due to the serious impact of call avoidance on the company’s ability to 

service its customers, Anthem’s Call Avoidance policy is “zero tolerance.” (Id. at 2.) If it is 

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determined by detailed review of call trace reports or other monitoring that an associate has been 

avoiding calls, the associate can be terminated. (Id.)

Plaintiff recalls reviewing multiple Anthem policies at the outset of her employment, and 

was aware of both the Corrective Action and Call Avoidance policies. (See Bates Dep. at 63-

72.) Plaintiff knew about the consequences for call avoidance. (Bates Dep. at 67:1-24.) 

Plaintiff was also aware that managers could monitor her calls and call activity. (Id. at 81:5-11.)

B. Plaintiff’s Employment with Anthem

Plaintiff was hired by Anthem in November 2008 as a UMR in the Medical Customer 

Service department. (Id. at 36:10-13, 41:17-22.) Several years into her employment, Plaintiff 

was promoted to the position of UMR-II and transferred to the Behavioral Health department.3 

(Id. at 51-54.) At all times relevant to the claims in this action, Plaintiff worked remotely and 

was managed by Justin Parcell, Behavioral Health Manager. (Id. at 78:3-8.) Plaintiff only ever 

met Parcell in person once. (Id. at 78:9-79:4.)

Anthem’s records reflect that Plaintiff took leave on multiple occasions during her 

employment without issue. (Parcell Dep. Ex. Y.) Specifically, Plaintiff took medical leaves in 

2009, 2012, 2014, 2016, and 2017. (See id.; see also Bates Dep. at 85:18-86:14.) While Plaintiff

has no recollection of the circumstances surrounding her various medical leaves, she does recall 

taking multiple leaves, and testified that the FMLA leave she took in November 2016 and May 

2017 are the only two leaves that are at issue here. (Bates Dep. at 85:3-86:14.)

 

3 When she transitioned to the position of UMR-II in the Behavioral Health department, Bates received additional 

training on the computer system, and also sat with the Behavioral Health department’s Team Lead, Gwendolyn 

Lazenby, for several weeks to learn how to handle the new content of the calls she would be fielding in the 

department. (See Bates Dep. at 54:5-55:24.) 

 

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1. Plaintiff’s November 2016 and May 2017 FMLA Leaves

In or around November 2016, Plaintiff scheduled one day of paid time off for an elective, 

outpatient tummy tuck surgery. (Id. at 86:15-21, 87:19-24, 88:1-2.) Plaintiff, however,

developed an infection after the surgery, resulting in her taking FMLA leave. (See id. at 86:22-

87:4.) She spent several days in the hospital and after returning home from the hospital, had to 

take antibiotics for several months, had a home health nurse visit several times a week to assist in 

packing her wound, and temporarily wore a wound vac. (Id. at 89:3-17.) 

According to Plaintiff, she informed Parcell that she “wasn’t feeling good” and “had a 

complication” with her surgery, and he contacted Anthem’s Human Resources department to 

inform them that Plaintiff needed to take FMLA leave. (See id. at 90:1-10.) Plaintiff testified

that she spoke with Parcell and Team Lead Lazenby on several occasions while she was on 

FMLA leave, but she has no recollection of when those conversations occurred, how many 

conversations occurred, or the contents of those conversations.” (See id. at 92:23-99:20.) 

Plaintiff also testified that she was in contact with Human Resources about her surgery, but she 

does not recall when those conversations occurred, who she spoke to, or the contents of those 

conversations. (See id. at 100:22-104:16.) Plaintiff returned to work from FMLA leave on a 

part-time basis in February 2017, and eventually transitioned back to full-time. (Id. at 104:24-

105:18.)

Plaintiff testified that as a result of her tummy tuck surgery, she has a concave “dip” in 

her stomach that sometimes opens up after it rubs against clothing. (Id. at 148:18-149:8.) When 

this happens, Plaintiff must keep the area “clean and treat it with a pad.” (Id. at 149:9-10.) 

Plaintiff, however, does not take any medication for this stomach wound, and after she cleans 

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and treats the area, she is able to go about her day without any limitations. (Id. at 149:13-19.) 

Plaintiff has no other ongoing issues as a result of her tummy tuck surgery. (Id. at 149:20-22.)

Plaintiff also took FMLA leave in May 2017 for a planned back surgery. (Id. at 110:1-

14.) Prior to taking leave for back surgery, Plaintiff worked a reduced schedule and different 

hours to accommodate physical therapy appointments and cortisone shots for her back. (Id. at 

112:23-113:6.) Plaintiff recalls that Parcell accommodated her without issue. (Id. at 112:23-

114:17.) Though Plaintiff believes she informed Parcell she was going to have back surgery, she 

does not recall having any other communications with Parcell about the back surgery. (See id. at 

115:24.) Plaintiff has had no ongoing complications or limitations as a result of her back surgery. 

(Id. at 149:23-150:7.)

2. Anthem’s Investigation of Plaintiff’s Call Avoidance and Plaintiff’s 

 Termination

In July 2017, Parcell received complaints from multiple sources about Plaintiff engaging 

in call avoidance. First, two other Behavioral Health UMRs complained to Parcell about 

Plaintiff transferring calls back into the queue that she was able to handle. (See Parcell Dep. at 

109:16-110:1.) Several days later, Parcell received a voicemail from a provider on July 13, 

2017, who complained that she had called for treatment authorization, was placed on hold by 

Plaintiff for twenty minutes, and then the call was disconnected without resolution. (See Parcell 

Dep. Ex. U at 1.) Parcell contacted Anthem’s Human Resources department on July 13, 2017,

by submitting a ticket via Anthem’s intranet. (See id.; see also Parcell Dep. at 110:12-111:4; 

Deposition of Andria Bryan4(hereinafter “Bryan Dep”) at 19:22-20:5.) The ticket summarized 

the complaints directed to Parcell, and attached the coworker’s complaints and provider’s 

complaint. (See Parcell Dep. Ex. U at 1.) 

 

4 Relevant portions of Andria Bryan’s deposition transcript are attached hereto as Exhibit C.

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Parcell’s ticket was randomly assigned to Andria Bryan, a member of Anthem’s Human 

Resources department. (Declaration of Andria Bryan5(hereinafter “Bryan Decl.”) at ¶ 1.) 

Parcell investigated the complaints of Plaintiff’s call avoidance, and communicated with Bryan 

throughout the investigation. (See Bryan Dep. at 27:4-30:3.)

First, Parcell confirmed with Team Lead Lazenby that Plaintiff was not having 

technological issues that would explain the transfer of calls back into the queue. (Parcell Dep. at 

112:14-20, 124:18-125:5; Exs. U, V.) Parcell also reviewed trace reports of both Plaintiff and 

other Behavioral Health UMRs to confirm that Plaintiff was indeed transferring calls back to the 

queue. (See Parcell Dep. at 124-33; Parcell Dep. Exs. W, X.) By comparing Plaintiff’s trace 

reports with those of other UMRs, the trace reports confirmed that the calls that Plaintiff 

transferred back into the queue were ultimately handled by other UMRs, who then built cases 

from the calls. (See Parcell Dep. at 131:8-23, 132:11-15.) In two and a half weeks, she 

transferred 26 calls to the queue that her fellow UMRs then handled. (See Parcell Dep. Exs. W, 

X.) Many of these transfers Plaintiff did before or after breaks or close to the end of her shift. 

(See Parcell Dep. Ex. W.) This suggests transfers were done to extend her breaks or end her 

work early. Parcell communicated his findings from the trace reports to Bryan. (Bryan Dep. at 

29:19-30:12; Parcell Dep. Ex. W.) Based on the results of the investigation, which showed 

Plaintiff willfully returning calls to the queue to avoid handling them, Parcell recommended 

terminating Plaintiff’s employment, and Bryan supported Parcell’s recommendation. (Bryan 

Dep. at 45:22-46:1.)6

 

5 The Declaration of Andria Bryan is attached as Exhibit D.

6 Bryan never met Plaintiff in person, and had no knowledge of who Plaintiff was prior to getting involved in the 

July 2017 investigation. (See Bryan Dep. at 10:10-24, 12:21-23, 16:15-24.)

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Plaintiff’s employment with Anthem was terminated on July 21, 2017. (Bryan Dep. at 

46:1-7.) Plaintiff was terminated for her egregious violation of Anthem’s Call Avoidance policy. 

(Bryan Dep. at 42:3-14; Parcell Dep. at 70:2-9.) During the termination phone call with Parcell 

and Bryan, Plaintiff did not deny transferring calls to the queue. (Bryan Dep. at 46:2-12; Parcell 

Dep. at 118:8-11.) 

III. LAW AND ARGUMENT

A. Legal Standard 

Summary judgment must be granted where there remain no genuine issues as to any 

material fact, the moving party is entitled to judgment as a matter of law, and it appears from the 

evidence that reasonable minds can come to but one conclusion that is adverse to the nonmoving party. Burchett v. Kiefer, 310 F.3d 937, 941 (6th Cir. 2002); Hopson v. DaimlerChrysler

Corp. 306 F.3d 427, 432 (6th Cir. 2002). Summary judgment “is properly regarded not as a 

disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a 

whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

At the summary judgment phase, facts must be viewed in the light most favorable to the 

nonmoving party only if there is a genuine dispute as to those facts. Scott v. Harris, 550 U.S.

372 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for 

the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986). “[T]he mere existence of some alleged factual 

dispute between the parties will not defeat an otherwise properly supported motion for summary 

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

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B. Anthem Is Entitled to Summary Judgment on Plaintiff’s Disability 

Discrimination Claim.

Plaintiff alleges that Anthem discriminated against her on the basis of disability (or 

perceived disability) in violation of both the ADA and Ohio law.7 (Compl. at 6-7.) There is no 

direct evidence of discrimination. 

In the absence of direct evidence, disability discrimination claims under the ADA are 

subject to the familiar McDonnell Douglas burden-shifting framework. First, Plaintiff must 

establish a prima facie case of discrimination, or that: (1) she was “disabled” within the meaning 

of the ADA; (2) she was otherwise qualified to perform the essential functions of her job; (3) she 

suffered an adverse employment action; and (4) a non-disabled person replaced her. Martin v. 

Barnesville Exempted Vill. Sch. Dist. Bd. of Educ., 209 F.3d 931, 934 (6th Cir. 2000) (citation 

omitted). Once a prima facie case has been established, the burden shifts to Anthem to 

“articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Id. 

Finally, the burden shifts back to Plaintiff to demonstrate that Anthem’s stated reason for her 

termination is a pretext for unlawful discrimination. Id. (citing McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973)). Plaintiff cannot establish a prima facie case of disability 

discrimination, or show that Anthem’s basis for termination was pretextual, and therefore, 

summary judgment is warranted.

 

7 Because Ohio courts look to the ADA for guidance in interpreting Ohio Revised Code Section 4112.02(A), 

Plaintiff’s state and federal disability discrimination claims will be analyzed simultaneously, using federal standards. 

See Dillbeck v. Huntington Nat’l Bank, No. 2:03-cv-0689, 2005 U.S. Dist. LEXIS 10273, at *15 (S.D. Ohio May 26, 

2005); City of Columbus Civil Serv. Comm’n v. McGlone, 697 N.E.2d 204, 206-07 (Ohio 1998).

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1. Plaintiff Cannot Establish a Prima Facie Case of Disability 

Discrimination.

Plaintiff’s disability discrimination claim fails because she cannot establish that she was 

disabled or that Anthem perceived her to be disabled, and she was not replaced by a non-disabled 

person.

First, Plaintiff cannot establish that she was disabled or that Anthem perceived her to be 

disabled. Both of Plaintiff’s alleged disabilities were scheduled, elective surgeries: a tummy 

tuck and back surgery. (Bates Dep. at. 152:14-16.) Multiple federal courts have held that

temporary conditions resulting from elective surgeries are not disabilities. In Lee v. 

Spectranetrics Corp., the plaintiff suffered a left shoulder labral tear, which was repairable 

through arthroscopic surgery. No. 12-cv-00633, 2013 U.S. Dist. LEXIS 139232, at *3-4 (D. 

Colo. Sept. 27, 2013) (granting summary judgment on ADA disability discrimination claim). 

The surgery was “entirely elective and did not need to occur on any particular date or within any 

particular timeframe.” Id. at *4. After surgery, the plaintiff experienced “loss of strength, 

weakness, and impaired range of motion in his shoulder,” but was able to return to work 

following surgery and perform the essential functions of his job without accommodation. Id. at 

*5-6. Five days after returning from surgery, the plaintiff was terminated. Id. at *6. 

In holding that the plaintiff was not disabled within the meaning of the ADA, the Lee 

court noted that the plaintiff’s post-surgical symptoms did not substantially limit his ability to 

work. Id. at *8. Moreover, the court found that the plaintiff failed to provide “sufficient 

evidence that his shoulder impairment “was both long-term and severe at the time that he was 

fired.” Id. at *11. Citing the following language from the U.S. District Court for Eastern District 

of Pennsylvania, the Lee court noted:

[T]he ADAAA was adopted to specifically address certain impairments 

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that were not receiving the protection that Congress intended—cancer, 

HIV-AIDS, epilepsy, diabetes, multiple sclerosis, amputated and 

partially amputated limbs, post-traumatic stress disorder, intellectual and 

developmental disabilities—not minor, transitory impairments, except 

if of such a severe nature that one could not avoid considering them 

disabilities . . . 

Id. at *11-12 (citing Koller v. Riley Riper Hollin & Colagreco, 850 F. Supp. 2d 502, 513 (E.D. 

Pa. 2012)). As a result, the court held that a “temporary condition post-surgery does not qualify

as a disability.” Id. at *13 (citing Rhodes v. Langston Univ., 462 F. App’x 773, 779 (10th Cir. 

2011)).

In Acosta v. Hilton Grand Vacations Co., a plaintiff claimed she was “regarded as” 

disabled by her employer because she had breast reduction surgery. C.A. No. 4:15-495, 2017 

U.S. Dist. LEXIS 49494 (D.S.C. Jan. 23, 2017), R&R adopted by 2017 U.S. Dist. LEXIS 47359 

(D.S.C. Mar. 30, 2017). The Acosta court found that the plaintiff was not a qualified individual 

with a disability because the breast reduction surgery was not “necessitated by a medical 

impairment.” Id. at *62-63; see also Roberts v. Onslow Cty. Bd. of Educ., No. 7:13-cv-39, 2014 

U.S. Dist. LEXIS 157859, at *16 (E.D.N.C. Aug. 28, 2014) (finding no disability when 

procedure was not medically necessary and no substantial limitations post-surgery). Further, the 

court found that plaintiff provided no evidence that her employer perceived her to have an 

impairment from the surgery. See id. at *63.

Similarly, here, Plaintiff is not disabled within the meaning of the ADA. With regard to 

Plaintiff’s tummy tuck, the surgery was elective and had no medical necessity. (See Bates Dep. 

at 86:15-21, 87:19-24, 88:1-2.) And while Plaintiff contracted an infection from the procedure, 

after taking antibiotics and having her surgical wound treated, she returned to work without 

restriction approximately three months after the surgery. (See id. at 104:24-105:18.) In addition, 

Plaintiff suffers no long-term limitations as a result of the surgery or post-surgical infection. 

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(See id. at 149:8-22.) As for Plaintiff’s elective back surgery, she concedes that she had no 

issues or limitations after having the surgery. (Id. at 149:23-150:7.) It is undisputed that, at the 

time of Plaintiff’s termination, she had no limitations and therefore, was not disabled.

Nor has Plaintiff provided evidence that Parcell perceived her as having an impairment as 

a result of having two elective surgeries, from which she had completely recovered at the time of 

her termination. Plaintiff claims that she informed Parcell about not feeling well and having a 

“complication” from her first surgery and believes she told Parcell her second surgery was a 

back surgery, but she does not recall any other information she provided to Parcell following 

either surgery (and nothing would refresh her recollection on this). (See id. at 90:1-10, 92:23-

99:20, 100:22-104:16, 115:8-117:14.) Parcell did not talk to Plaintiff about the reasons she was 

taking FMLA leave, was not informed by anyone else at Anthem about the basis for Plaintiff’s 

leave, never saw any of Plaintiff’s medical paperwork, and was not involved in reviewing the 

FMLA request or certification. (See Parcell Dep. at 24:22-25, 49:15-17, 137-46.) At the time of 

Plaintiff’s termination, Parcell was not aware of Plaintiff having any limitations from her prior 

surgeries and did not perceive Plaintiff to have any limitations. (See id. at 137-46.)

Second, Plaintiff cannot show that she was replaced by a non-disabled individual. In 

fact, no one was hired to fill Plaintiff’s position after her termination. (See id. at 21:23-23:24.) 

Subsequently, in October 2017, the team was restructured to combine areas. (See id.)

For these reasons, Plaintiff cannot establish a prima facie case of disability discrimination 

and therefore, Anthem is entitled to summary judgment on Plaintiff’s disability discrimination 

claims under federal and state law.

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2. Anthem Has Shown that Plaintiff Was Terminated for Violating 

Anthem’s Call Avoidance Policy, Which Is a Legitimate NonDiscriminatory Reason.

Even if Plaintiff could state a prima facie case of disability discrimination, Anthem has 

articulated a legitimate, nondiscriminatory reason for Plaintiff’s termination—her egregious 

violation of the company’s zero-tolerance Call Avoidance policy. (Parcell Dep. at 70:2-6; Bryan 

Dep. at 34:2-4.) Specifically, Anthem’s investigation showed that she willfully returned calls to 

the queue that she knew how to handle, and she frequently did this before or after breaks, or 

close to the end of her shift. (See Parcell Dep. Exs. U, V, W, X.) The Sixth Circuit Court of 

Appeals and this Court have found that violation of company policy is a legitimate, 

nondiscriminatory reason for termination. See, e.g., Sybrandt v. Home Depot, U.S.A., Inc., 560 

F.3d 553, 558 (6th Cir. 2009) (affirming summary judgment for employer where articulated 

reason for termination was employee’s violation of code of conduct); Green v. Schaeffer’s 

Investment Research, Inc., No. 1:09-cv-360, 2012 U.S. Dist. LEXIS 26136, at *26 (S.D. Ohio 

Feb. 29, 2012) (granting summary judgment to employer where articulated reason for 

termination was violation of e-mail and confidentiality policies). 

3. Plaintiff Cannot Demonstrate Pretext.

Finally, Plaintiff cannot demonstrate that Anthem’s articulated reason for her termination 

is pretextual. An employee can show that an employer’s purported reason for termination is 

pretextual if it: (1) had no basis in fact; (2) did not actually motivate the employer’s action; or (3) 

was insufficient to motivate the employer’s action. Travers v. Cellco P’ship, 579 F. App’x 409, 

416 (6th Cir. 2014) (internal citations omitted). 

First, Plaintiff cannot show Anthem’s reason for termination had no basis in fact. While 

Plaintiff may disagree with Anthem’s decision to terminate her employment, “disputes about the 

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interpretation of company policy do not typically create genuine issues of material fact regarding 

whether a company’s stated reason for an adverse employment action is only a pretext designed 

to mask unlawful discrimination.” Sybrandt, 560 F.3d at 558-59. Indeed, as long as an employer 

honestly believes in its nondiscriminatory reason for discharge, an employee cannot establish 

pretext, even if the ultimate reason is incorrect. Id. at 559 (quoting Majewski v. Auto. Data

Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001)). “The key inquiry in assessing whether 

an employer holds such an honest belief is whether the employer made a reasonably informed 

and considered decision before taking the complained-of action.” Id. (quoting Michael v.

Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007)). 

Here, Anthem made a reasonably informed and considered decision, which was 

supported by evidence from a thorough investigation. (See Parcell Dep. at 124-33, Exs. U, V, 

W, X.) The investigation was conducted due to several complaints made about Plaintiff in July 

2017 from other UMRs, who had to handle calls that Plaintiff transferred back into the queue, 

and from a provider who was placed on hold and then disconnected by Plaintiff without 

resolution. (See Parcell Dep. at 109:16-110:1, Ex. U at 1.) Trace reports of Plaintiff’s call 

handling confirmed that between July 1st through 18th, Plaintiff transferred calls that she should 

have handled back into the queue 26 times, and those calls were then handled by other UMRs 

after transfer. (See Parcell Dep. at 124-33; Parcell Dep. Exs. W, X; 131:8-23, 132:11-15.) From 

this investigation, which includes trace reports that show Plaintiff willfully transferring calls that 

she should have handled (and often near break times and near the end of her shift), it was entirely 

reasonable for Parcell to conclude that Plaintiff egregiously violated the Call Avoidance policy. 

Plaintiff has not offered any evidence to rebut these trace reports, nor could she.

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Second, Plaintiff cannot show that Anthem’s determination that she engaged in call 

avoidance did not actually motivate Anthem’s decision to terminate. Under this second method, 

the court, “presumes the factual basis of the purported reason is true and that such ground could 

motivate dismissal.” Travers, 579 F. App’x at 417 (internal citations omitted). Plaintiff must 

then attack the explanation “by showing circumstances which tend to prove an illegal motivation 

was more likely than that offered by the defendant.” Id. (emphasis in original). Though Plaintiff 

may claim that she believes she was terminated unfairly, she offers no evidence that an illegal 

motivation was more likely the reason she was terminated. An employee’s “personal beliefs, 

conjecture, and speculation” are insufficient to support a motion for summary judgment. Snyder 

v. Pierre’s French Ice Cream Co., 589 F. App’x 767, 771 (6th Cir. 2014). At the time of her 

termination, Plaintiff suffered from no limitations and therefore was not disabled. There is also 

no evidence that Parcells, who had extremely limited information about Plaintiff’s past surgeries, 

considered Plaintiff to be disabled or bore any animosity toward Plaintiff for her past medical 

issues. 

Third, Plaintiff cannot show that call avoidance was insufficient to motivate Anthem’s 

termination decision. Anthem’s Call Avoidance policy states as follows: (1) transferring calls 

that an associate is trained to handle back into the queue is call avoidance; (2) Anthem has a zero 

tolerance policy on call avoidance; and (3) if review of call trace reports or other monitoring 

show that an associate has been avoiding calls, the associate will be terminated. (Bates Dep. Ex. 

8.) Therefore, termination was plainly in accordance with Anthem’s policy on Call Avoidance. 

There is no evidence that any other associate engaged in similar call avoidance and was not 

terminated. Thus, even if Plaintiff could establish a prima facie case of disability discrimination, 

Anthem has articulated a legitimate, nondiscriminatory reason for Plaintiff’s termination, and 

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Plaintiff cannot show that this reason was a pretext for unlawful disability discrimination. For 

these additional reasons, Anthem is entitled to summary judgment on Plaintiff’s disability 

discrimination claims under federal and state law.

C. Anthem Is Entitled to Summary Judgment on Plaintiff’s Wrongful 

Termination Claim.

Plaintiff also brings a state law tort claim for wrongful termination in violation of public 

policy based on Anthem’s alleged violation of the ADA and/or Ohio Revised Code Section 

4112.02. (Compl. at 8.) This claim fails as a matter of law, however, as the Supreme Court of 

Ohio has held that there is “no need to recognize a common law action for wrongful discharge if 

there already exists a statutory remedy that adequately protects society’s interests.” Slane v. 

MetaMateria Partners, LLC, 892 N.E.2d 498, 504 (Ohio Ct. App. 2008) (citing Leininger v. 

Pioneer Nat’l Latex, 875 N.E.2d 36 (Ohio 2007)) (affirming summary judgment on claim for 

wrongful termination in violation of public policy against disability discrimination); see also 

Kellogg v. Ohio State Univ., 2011-Ohio-4848, at ¶ 19.

Because both federal and state statutes prohibiting disability discrimination exist and are 

adequate to protect societal interests, Plaintiff’s wrongful termination claim fails. The claim also 

fails for the additional, independent reason that Plaintiff cannot establish that she is disabled. 

Slane, 892 N.E.2d at 504; see supra Section III.B.1. Anthem is therefore entitled to summary 

judgment on Plaintiff’s wrongful termination claim. 

D. Anthem Is Entitled to Summary Judgment on Plaintiff’s FMLA Retaliation 

Claim.

As with Plaintiff’s disability discrimination claim, her claim for FMLA retaliation based 

on indirect evidence is subject to McDonnell Douglas burden shifting. To establish a prima facie 

case of FMLA retaliation, Plaintiff must show: (1) she availed herself of a protected right under 

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the FMLA; (2) she suffered an adverse employment action; and (3) there was a causal 

connection between the exercise of her rights under the FMLA and the adverse employment 

action. Marshall v. Rawlings Co., LLC, 854 F.3d 368, 381 (6th Cir. 2017). If Plaintiff can make

such a showing, the burden shifts back to Anthem to articulate a legitimate, nonretaliatory reason 

for the adverse employment action. Id. at 382. Then, Plaintiff must show that Anthem’s stated 

reason is pretextual. See id. 

Plaintiff’s FMLA retaliation claim fails because she cannot establish a prima face case. 

Specifically, she cannot show any causal connection between the exercise of her FMLA rights 

and her termination. Parcell did not talk to Plaintiff about the reasons she was taking FMLA 

leave, was not informed by anyone else at Anthem about the basis for Plaintiff’s leave, never saw 

any of Plaintiff’s medical paperwork, and was not involved in reviewing the FMLA request or 

certification. (See Parcell Dep. at 24:22-25, 49:15-17, 137-46.) Plaintiff offers no evidence that 

simply knowing Plaintiff took FMLA leave motivated the decision to terminate her employment.

Furthermore, even if Plaintiff could establish a prima facie case, her FMLA claim fails

for the same reason her disability discrimination claim fails. Anthem has shown Plaintiff was 

terminated for violating Anthem’s Call Avoidance policy. See supra Section III.B.2. And 

Plaintiff has failed to show that the decision to terminate was a pretext for FMLA retaliation. 

See supra Section III.B.3. Accordingly, Anthem is entitled to summary judgment on Plaintiff’s 

FMLA retaliation claim.

E. Anthem Is Entitled to Summary Judgment on Plaintiff’s IIED Claim.

Finally, Plaintiff brings a claim for IIED against Anthem. To prevail on this claim, 

Plaintiff must show that: (1) Anthem intended to cause emotional distress, or knew or should 

have known that actions taken would result in serious emotional distress; (2) Anthem’s conduct 

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was extreme and outrageous; (3) Anthem’s actions proximately caused Plaintiff’s psychic injury; 

and (4) the mental anguish Plaintiff suffered was serious. Hanly v. Riverside Methodist Hosp., 

603 N.E.2d 1126, 1132 (Ohio Ct. App. 1991).

Plaintiff has not testified to any conduct on Anthem’s part that occurred outside the 

confines of a typical employment relationship. Plaintiff has pointed to no action taken by 

Anthem to support her IIED claim other than the termination of her employment. The “act of 

terminating employment falls short of the extreme or outrageous conduct necessary” to support 

an IIED claim. Wissler v. Ohio Dep’t of Job & Family Servs., 2009-Ohio-2826, at ¶ 38. 

“Adverse employment actions, without more, do not meet this standard.” Id. (citing 

Katterhenrich v. Fed. Hocking Local Sch. Dist. Bd. of Educ., 700 N.E.2d 626 (Ohio Ct. App. 

1997)). Accordingly, Anthem is entitled to summary judgment on Plaintiff’s IIED claim.

IV. CONCLUSION

For all of the foregoing reasons, Anthem respectfully requests that this Court grant 

Anthem’s Motion for Summary Judgment in its entirety.

Dated: October 10, 2019 Respectfully submitted, 

/s/ Jocelyn M. Hoffman

Natalie M. McLaughlin (#0082203) (Trial 

Attorney)

Jocelyn M. Hoffman (#0092365)

Vorys, Sater, Seymour and Pease LLP

52 East Gay Street

P.O. Box 1008

Columbus, OH 43216-1008

Telephone: (614) 464-5452

Facsimile: (614) 719-5252

Email: nmmclaughlin@vorys.com; 

jmhoffman@vorys.com 

Attorneys for Defendant Anthem Insurance

Companies, Inc.

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on October 10, 2019, the foregoing was filed with 

the Court and served via the Court’s electronic filing system.

/s/ Jocelyn M. Hoffman

Jocelyn M. Hoffman 

10/10/2019 33978575 V.3

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