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Billal v. Alere Health, LLC

United States District Court, C.D. California, Southern Division

April 9, 2015

DYAN BILLAL, Plaintiff,
ALERE HEALTH, LLC, et al., Defendants.


DAVID O. CARTER, District Judge.

Before the Court is the Motion for Summary Judgment filed by Defendant Alere Health, LLC (Dkt. 33).


A. Factual Background

1. Billal Works for Alere, Leaves for Another Job, and Returns to Alere

Defendant Alere Health, LLC ("Alere") provides condition management, case management, and wellbeing and wellness services to insurers, employers, and health care payers. Alere's Statement of Uncontroverted Facts and Conclusions of Law ("SUF") (Dkt. 33-2) No. 2. Plaintiff Dyan Billal ("Billal") started working for Alere in 2008 as a Triage Enrollment Nurse ("TEN"). SUF Nos. 3, 11; Billal Decl. (Dkt. 38-1) ¶ 3. In that position, Billal worked from home contacting and evaluating patients for case management services over the telephone. SUF No. 3; Billal Decl. ¶ 3. Billal's first supervisor, Barbara Goodridge, testified that "after her first year, [Billal] was one of the highest referral producing nurses on my team" of twelve nurses. Plaintiff's Additional Disputed Material Facts ("PAF") (Dkt. 59) No. 143; Goodridge Dep. 21:9-18, Dec. 15, 2014.

Billal has had chronic asthma for many years. PAF No. 169; Billal Decl. ¶ 10. Billal stated that her asthma "can flare up and become so severe that [she is] unable to talk and therefore unable to work." PAF No. 170; Billal Decl. ¶ 10. In 2010, Billal took a leave of absence for approximately three to five weeks for an asthma exacerbation. SUF No. 12. When Billal took leave in 2010, she did not suffer any negative consequences and nothing negative was said to her about taking the leave. SUF No. 13.

In September 2010, Billal left Alere for a higher-paying job. Before Billal left, Alere offered her a raise in an effort to keep her with the company. SUF Nos. 15, 16; Billal Decl. ¶ 5.

In late 2011, Billal returned to Alere as a TEN after being recruited by Goodridge. SUF No. 18; PAF No. 148. Billal consistently met her productivity goals and Goodridge testified that, after her rehire, Billal was consistently in the top three in the daily productivity reports. PAF Nos. 150, 160. In her 2012 annual review, the last one she received at Alere, Billal's referral rate of 4.24 per day was characterized as "Exceptional performance." PAF No. 166.

2. Billal Takes Leave because of her Chronic Asthma

In the spring of 2013, Billal's asthma began to flare up and she took intermittent leave under the California Family Rights Act ("CFRA") and Family and Medical Leave Act ("FMLA") beginning April 1, 2013. SUF Nos. 21-23; PAF No. 171. The parties do not state how much leave Billal took at that time.

In August 2013, Billal became very sick with asthma and went on full-term CFRA/FMLA leave. SUF No. 24. Billal was originally scheduled to return to work on September 28, 2013; however she became sick again with asthma and from complications with her medication. SUF No. 25. Billal testified that she was satisfied with the process of her leave of absence beginning in August and the benefits she received. SUF No. 28.

At the time Billal took CFRA/FMLA leave beginning in August 2013, her immediate supervisor was Barbara Dohanyos, who reported to Caroline Deguzeman, manager of the TEN group. SUF Nos. 4, 5. Deguzeman reported to Theresa McKelvey, who served as the director of the TEN team and who, in turn, reported to Susan Garcia, Alere's Vice President of Case Management and Triage. SUF Nos. 6, 7. Garcia managed all enrollment teams for Alere, which included approximately 225 people nationwide, including approximately 35 to 38 TENs. SUF Nos. 7, 8.

On August 14, 2013, the benefits department at Alere sent an email to Dohanyos with the subject line, "Dyan Billal - Leave Request." Stillwell Decl. Ex. 2. Dohanyos forwarded that email to Deguzeman, who sent it to McKelvey. Id. McKelvey forwarded the email to Garcia and stated, "Does it ever end.... ¶ We have another going out on [short-term disability] - severe asthma." Id. (ellipsis in original). Garcia then forwarded the email chain to Richard Ventimiglia, Alere's Senior Vice President of Human Resources. Id. In her email to Ventimiglia, Garcia stated:

Even more reason to get me a PT req for the 2 who are reducing is a FT high performer going out on STD and unlike Christine Storey, Idont [sic] have staff to cover for STD/FMLA...I have enough staff to hit the daily targets with each FTE doing 3 referrals per I sound bitter today...well I am, b/c on the weekly CM scrumm I constantly hear how they missed opens b/c of FMLA/STD but I don't get to use that excuse.


The parties dispute the exact date Billal exhausted her CFRA/FMLA leave. Alere offered a declaration from Ventimiglia stating that Billal's CFRA/FMLA leave was exhausted on October 28, 2013. Ventimiglia Decl. (Dkt. 33-4) ¶ 3. However, no evidence was submitted that, at the time, Billal was told her leave would be exhausted on that date. Billal offered evidence-an email dated September 23, 2013, between an Alere benefits employee and an FMLA consultant-that Billal's CFRA/FMLA leave was not exhausted until sometime during the week beginning November 4, 2013. Stillwell Decl. Ex. 11.[1] Regardless of when her CFRA/FMLA leave was exhausted, Alere approved Billal's leave through November 3, 2013, and Billal was scheduled to return to work on Monday November 4, 2013. SUF No. 27; PAF No. 179. About one week before her scheduled return, Billal spoke with her supervisor Dohanyos on the telephone about her return. PAF No. 180.

3. Alere Plans and Implements Reduction in Force after Losing Business with Several Clients

In September 2013-while Billal was on leave-Alere determined that it needed to reduce its operating expenses after three of its largest and longtime clients, Optum, Cigna, and BCBS-Alabama, as well as other clients, notified Alere that they were bringing some or all of their services in-house. SUF No. 40. Ventimiglia stated in his declaration that, because of the impact of lost clients, "Alere made a business decision that it would need to lay off over one hundred employees." Ventimiglia Decl. ¶ 4.

In September 2013, Garret Hale, Alere's Senior Vice President of Operations, informed Garcia about the layoff decision. PAF No. 190. In previous reductions in force at Alere, Garcia never had to lay off anyone from the enrollment teams because they were considered revenue-producing positions, and, in the past, there had always been enough new business to cover any lost business. SUF No. 47. Hale initially told Garcia that she had to lay off employees in the obstetrics team she manages, but no one else. PAF No. 190. However, at the last minute, Hale told Garcia that she must lay off one TEN. SUF No. 54; PAF No. 191.

Around that time, another Alere client, Blue Shield of California ("Blue Shield"), informed Alere that it intended to reduce patient numbers by approximately sixty percent. Garcia Decl. ¶¶ 3, 5. Billal was one of approximately six to eight TENs who worked on the Blue Shield team. SUF No. 10; Garcia Dep. 49:8-11, Dec. 11, 2014; Billal Decl. ¶ 9. Although Garcia initially calculated that she might need to lay off about half of the TENs on the Blue Shield team to offset the decline in business from Blue Shield, she resisted laying off anyone because it was a revenue-producing team. SUF No. 59. However, Hale told Garcia that she had to lay off at least one TEN because the operations budget was still over the necessary budget target. SUF No. 60.

4. Billal Is Laid Off

On November 1, 2013, Garcia and McKelvey called Billal on the phone to tell her that she was being laid off. PAF No. 230. When she received the call, Billal was walking to her doctor's office to obtain her return-to-work authorization. PAF No. 235. Upon being told that she was being laid off, Billal became very upset and hung up the phone. PAF No. 243; Billal Dep. 48:21-50:4, Nov. 6, 2014. After she hung up the phone, Billal went into the her doctor's office crying and still very upset and her blood pressure was extremely high. PAF No. 244; Billal Dep. 50:14-17. Later, Billal received a call from Nicole Trampe in Alere's human resources department to discuss information related to Billal's severance. PAF No. 245; Billal Dep. 55:1-56:3. When Billal asked Trampe why she was laid off, Trampe said she did not know and that the explanation "would have to come from [Garcia]." PAF No. 247; Billal Dep. 56:11-17. Billal told Trampe that she would like to be given the explanation from Garcia.

After Billal returned home from her doctor's office, she received another call from Garcia and McKelvey. PAF No. 248; Billal Dep. 56:17-22. Billal testified that, in that conversation, Garcia stated she did not have to tell Billal why she was let go, but Garcia did state that it was not about Billal's performance and that it was a financial decision. Billal Dep. 56: 25-57:7. Garcia testified that she told Billal that "it was a thorough process and that it had been a difficult decision." PAF No. 249.

B. Procedural Background

In her Complaint, Billal asserts seven claims for relief: (1) disability discrimination in violation of California's Fair Employment and Housing Act ("FEHA"); (2) age discrimination in violation of FEHA; (3) interference with CFRA rights; (4) retaliation; (5) failure to reinstate in violation of the CFRA; (6) wrongful termination in violation of public policy; and (7) intentional infliction of emotional distress. See generally Compl.

On January 14, 2015, Alere filed the Motion for Summary Judgment. Dkt. 33. Before Billal's opposition was due, the parties stipulated to dismissal of Billal's claim for age discrimination. Dkt. 36, 37. On February 5, Billal filed her opposition. Dkt. 38. On February 12, Alere filed its reply brief, as well as objections to evidence ...

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