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Messenger v. Boston Scientific Corp.

United States District Court, M.D. Louisiana

January 6, 2020

MELISSA R. MESSENGER
v.
BOSTON SCIENTIFIC CORPORATION

          RULING AND ORDER

          JOHN W. deGRAVELLES JUDGE

         This matter comes before the Court on Defendant Boston Scientific Corporation's (“Defendant” or “Boston Scientific”) Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Rule 12(b)(6) (Doc. 48). Plaintiff Melissa R. Messenger (“Plaintiff” or “Messenger”) opposes the motion. (Doc. 52.) Boston Scientific has filed a reply. (Doc. 53.) Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, Defendant's motion is granted.

         I. Relevant Factual Background

         A. Introduction

         The relevant factual allegations are taken from Plaintiff's Second Amended Complaint (Doc. 47). They are assumed to be true for purposes of this motion. Thompson v. City of Waco, Tex., 764 F.3d 500, 502-03 (5th Cir. 2014). The factual background is also taken from those exhibits attached to Defendant's motion that “are referred to in the [P]laintiff's complaint and are central to her claim[s].” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000) (citation omitted).

         On August 27, 2007, Messenger was hired by Boston Scientific to serve as an Interventional Sales Specialist (“ISS”) for its Interventional Cardiology Division in Louisiana. (Sec. Am. Compl. ¶ 3, Doc. 47.) In 2011, Messenger was promoted to the position of Coronary Sales Representative (“CSR”); and, thereafter, in 2014, she was promoted to the position of Therapy Consultant (“TC”). (Id. ¶ 4.) At all relevant times, Messenger was classified by Boston Scientific as a “Field Based Interventional Sales Representative” (“FBISR”). (Id.)

         Messenger's duties as an FBISR for Boston Scientific included attending and observing surgical procedures. (Id. ¶ 5.) Plaintiff alleges: “Because X-Rays and other radiological devices were present and/or used during the surgical procedures being attended and/or observed by FBISRs, said [Boston Scientific] employees, including Messenger, would wear heavy lead vests and/or aprons which. . . were intended to protect against the harmful effects of radiation.” (Id. ¶ 6.) According to Plaintiff, Boston Scientific's FBISRs, including Messenger, would wear these lead vests and/or aprons for prolonged periods of time, i.e., multiple consecutive hours, while attending and/or observing surgical procedures on behalf of Boston Scientific. (Id. ¶ 7.)

         Plaintiff alleges that:

In the event that an FBISR had a physical impairment, limitation, or disability that rendered wearing the lead vests and/or aprons too physically strenuous or potentially dangerous, [Boston Scientific] had at its disposal at all relevant times hereto the means to accommodate said physical impairment, limitation, or disability so that the FBISR could attend and/or observe surgical procedures and fulfill his or her employment duties.

(Id. ¶ 8.) Specifically, Plaintiff contends that Boston Scientific “had at its disposal at all times relevant hereto lead shields which could be placed in operating rooms and behind which FBISRs could stand or sit while attending and/or observing surgical procedures and performing the essential tasks associated with their positions.” (Id. ¶ 9.)

         Plaintiff further alleges that Boston Scientific “also had at its disposal at all times relevant hereto surgical control rooms in which FBISRs could stand or sit while attending and/or observing surgical procedures and performing the essential tasks associated with their positions.” (Id. ¶ 10.) According to Plaintiff, standing and/or sitting behind those lead shields and/or in those surgical control rooms obviated the need for Boston Scientific's FBISRs to wear the cumbersome lead vests and/or aprons while affording employees the same protection against radiation as the vests and/or aprons. (Id. ¶ 11.) Consequently, Plaintiff alleges “the FBISRs would be able to attend and/or observe surgical procedures and perform their job duties despite physical impairments, limitations, or disabilities that might preclude wearing the lead vest and/or apron.” (Id.)

         B. Plaintiff's Health Problems and Leave of Absence

         While working as an FBISR for Boston Scientific, Messenger purportedly began experiencing significant back pain. (Id. ¶ 12.) Plaintiff alleges that on or about March 20, 2016, she noticed a significant and acute increase in her back pain while working as an FBISR for Boston Scientific. (Id. ¶ 13.) Despite the acute increase in her back pain, Messenger returned to work and fulfilled her duties as an FBISR on or about March 21 and 23, 2016. (Id. ¶ 14.) Thereafter, Messenger sought medical treatment, as her back pain was not subsiding. (Id.)

         On March 28, 2016, Messenger's doctor provided her with a five (5) day excuse from work, i.e., March 28 through April 4, 2016, which Plaintiff alleges that she “understood only limited her from wearing a lead vest and/or apron while performing her work duties as an FBISR.” (Id. ¶ 15.) However, the doctor's note itself states that “[t]he patient should be excused from: Work for 5 days.” (Def. Ex. 1, Doc. 48-2 at 2 (emphasis added).)[1]

         From March 28 to April 4, 2016, Messenger continued to work on and off throughout the week. (Sec. Am. Compl. ¶ 16, Doc. 47.) During that time, Boston Scientific neither requested a return to work release from Messenger's treating physician nor advised Messenger that she was not permitted to work in light of the doctor's note. (Id. ¶ 16.)

         On April 7, 2016, Messenger received another work excuse from her doctor; this time for two (2) weeks. (Id. ¶ 17.) Again, while Messenger avers in the Second Amended Complaint that she believed that the doctor's note “only limited her from wearing a lead vest and/or apron while performing her work duties as an FBISR” (id.), the actual note reads as follows:

__X__ May not return to work/school on:__ 04/07/2016 - 04/21/2016

(Def. Ex. 2, Doc. 48-3 at 3 (emphasis added).)[2]

         Plaintiff alleges that even with the work limitation imposed by her treating doctor as of March 28, 2016 and April 7, 2016, she was “capable of performing and qualified to perform all essential functions and duties of an FBISR for [Boston Scientific] with the reasonable accommodation of a lead shield(s) and/or a surgical control room” which she alleges Boston Scientific had at its disposal. (Sec. Am. Compl. ¶ 18, Doc. 47.)

         Nevertheless, after being provided with Plaintiff's April 7, 2016 doctor's note and despite being able to accommodate the restrictions contained therein, Boston Scientific purportedly refused to accommodate Messenger and restricted her from returning to any form of activity or work on behalf of Boston Scientific. (Id. ¶ 19.) Messenger alleges that she immediately notified Boston Scientific that she was unaware her doctor's note would be interpreted to limit her from returning to work in any capacity and explained that the sole purpose of the note was to limit her from wearing a lead vest and/or apron while performing her duties as an FBISR. (Id. ¶ 20-21.) However, despite allegedly being able to accommodate Plaintiff's physical limitations by providing her with a lead shield and/or surgical control room, Boston Scientific advised Messenger that she would not be permitted to return to work in any capacity unless and/or until she was capable of wearing a lead vest and/or apron or otherwise released to work without restriction. (Id. ¶ 22.)

         Given Boston Scientific's refusal to accommodate her doctor's restriction, Messenger returned to her doctor on April 7, 2016 and obtained a second note that permitted her to return to work on that same day without restriction. (See Def. Ex. 3, Doc. 48-4 at 2.)[3] On April 8, 2016, Messenger forwarded this revised doctor's note to Boston Scientific. (Sec. Am. Compl. ¶ 24, Doc. 47.) Messenger alleges:

In the correspondence forwarding her revised doctor's note, [Plaintiff] advised [Boston Scientific] that she was scheduled to attend a surgery on or about April 9, 2016 and that the facility at which she was going to attend said surgery was aware of her physical impairments and/or limitations relating to her back injury and expressly advised that it could accommodate [Plaintiff's] limitations by providing her with a lead shield that would enable her to attend and/or observe the surgical procedure and fulfill her duties as an FBISR.

(Id. ¶ 25.)

         Plaintiff then had a series of exchanges with Michele DeCoux (the HR Manager), Annick Matherne, and Scott Heuler in response to the receipt of Plaintiff's revised doctor's note. (See Def. Ex. 4, Doc. 48-5.)[4] On April 8, 2016, at 2:03 a.m., Michele DeCoux emailed Messenger thanking her for a “follow-up note” and telling her she had “a few additional questions” before Messenger returned to work. (Id. at 5.) DeCoux concluded the note: “Please do not return to work until we speak on Monday. I will reach out to Annick and ensure that your accounts are covered Friday and Monday.” (Id. at 6.)

         Plaintiff responded at 2:04 a.m. in a lengthy email by first expressing her concern for the situation and said that she could not “show up tomorrow for the 7:30 procedure” for which she “committed months ago”. (Id. at 4.) Plaintiff then said:

I was completely unaware the note would limit me from ALL activity, the only reason for the note is due to wearing lead…, which is why I jumped through hoops today to get revised note today that I do not need to wear lead to support a case. My doctor gave me the notes ([M]arch 28th and today) because he knows I wear lead and stand for hours at a time, and I have a back injury, but there is no reason I can't work and my doctor agreed; I had no idea it would limit me from ALL work-I never would have agreed to that or given either of the notes to Annick.

(Id.) Plaintiff also said that she had an “identical note” when she first hurt her back on March 28th, and she “was not told this and worked on and off throughout that entire week, as well as, never obtained or provided a Return to Work Note, and was back in the field without any mention of the issues which arose yesterday…this never came up…Why?” (Id.) She again said had she known any of this she “would not have agreed to work, or . . . never would have accepted either note[.]” (Id.) Plaintiff stated:

I just wanted my manager, team, and customers to know why I was not going into the procedure rooms, but rather watching and participating from the control room, sitting down…I did this because I have been sick or out for medical reasons before and encountered lack of sympathy for the limitations those events incurred.

(Id.) After expressing concern for her customers and reputation, Plaintiff stated:

The lab knows I cannot wear lead and has arranged for me to use a shield.. The lab director and I spoke and I mentioned Annick's communication to me, and her response was come as BSC or come as yourself, but be here…pointing out she doesn't care about what has now become vendor drama and distraction, her concern is that I am there, as promised, to assure equipment succeeds and the patient is safe. PLEASE do not make me do this, any shred of respect these customers have for me will disappear tomorrow.. It is just not right… I will do as I'm instructed, but asking please, don't make me cancel this late in the game when I did what I was told to return to work… sorry I'm so upset. Please respond as soon as you can because I will need to start damage control in 3 hours.. Thanks, Michele..

         Melissa (Id. at 5 (emphasis added).)

DeCoux responded at 12:30 p.m.:
Hi Melissa, I will work with Annick to ensure that James covers these cases.
Please provide me with the dates, times and locations.
Unfortunately I am in Sam Conaway's staff meeting and unavailable.
I look forward to our discussion on Monday.

(Def. Ex. 4, Doc. 48-5 at 3.)

         On the same day at 2:07 p.m., Plaintiff responded by expressing her frustration and concern. (Id. at 2.) Plaintiff told Annick that they had not spoken in a few days and that she had refused to respond to Plaintiff's emails and texts. (Id.) Plaintiff said she was “quite frankly, [being] forced into an involuntary LOA” when she didn't “even have a diagnosis yet and worked and returned to work two weeks [before] without any of the requirements [she was] being told [were] mandatory now[.]” (Id.) Plaintiff said she was told she could “return to work when [she] obtain[ed] a return to note letter from [her] doctor-which [she] did” the day before and which she purported to attach. (Id.) Plaintiff then said:

I did not request a LOA or instigate any type of action to begin approval process; in fact, I did not seek any advice, guidance, or recommendations from you or any BSC employee or other manager, etc ....
I am having a very hard time understanding that since satisfying the return to work note, as stated in your email and this manual, then and only then am I clear back to work- which I did, almost immediately, but am still being told NO and remain unable to return to work, when I am capable of fulfilling the requirements of my job.
I am very confused why only the second time, the first note didn't limit me from working, or have the same requirements this second one did, but regardless, I provided a Return to Work, from my physician, and have no interest in a leave .... In addition, I do not see in these documents where an employee (who is not even on leave or requested it) is not cleared back to work, when they have been working the whole time, and show proof of a medical doctor releasing them ... Am I missing something? PLEASE help me. I am not in a position to take a leave, especially without a diagnosis or request by me, and have no interest in that unless of an emergency ... I need clarification on this ASAP please because it just does not make sense, plus, in all the literature it states you will be guided by your manager (if requested, which I didn't...) and we have NOT discussed it once ...

(Id. at 3.) Plaintiff closed by expressing her frustration given her dedication to the company and the response she was receiving. (Id.)

         Thus, from these emails, Plaintiff alleges:

Nevertheless, [Boston Scientific] maintained its refusal to accommodate [Plaintiff]'s physical impairment and/or limitations relating to her back injury and to permit her return to work in any capacity. Indeed, despite being aware that it could accommodate [Plaintiff's] physical impairment and/or limitations, [Boston Scientific] sent correspondence to [Plaintiff] on or about April 8, 2016 ordering her not to return to work.

(Sec. Am. Compl. ¶¶ 26, 27, Doc. 47.)

         On April 11, 2016, Plaintiff emailed DeCoux to ask about her work status. (Def. Ex. 5, Doc. 48-6 at 2.)[5] Plaintiff alleges that despite being able to perform all essential functions associated with her position with reasonable accommodation from Boston Scientific, Boston Scientific advised her that her only available option was to apply for leave (FMLA) and that her position would be protected if she were approved for FMLA. (Sec. Am. Compl. ¶¶ 28, 29, Doc. 47.) The correspondence in which DeCoux replied to Plaintiff's email reads in relevant part:

As we discussed based on your doctor's recommendation and the restrictions you mentioned I recommend you apply for a leave with Aetna.
The duration of the leave can start at 5 days up to when you are able to return.
If approved the FMLA (family medical leave act) provides you job protection. The goal is to improve your health and the intention is not to move you out of the company.

(Def. Ex. 5, Doc. 48-6 at 2.) Believing based on Boston Scientific's representation that her only option was to apply for leave, Messenger applied for FMLA in April 2016 which was administered through Aetna. (Sec. Am. Compl. ¶ 30, Doc. 47.)

         Although Messenger applied for leave, “she was at all times material hereto physically capable of performing and/or qualified to perform all essential functions and duties of an FBISR with reasonable accommodation from [Boston Scientific].” (Id. ¶ 31.) However, Boston Scientific refused said accommodation. (Id.)

         On or about May 27, 2016, Messenger's treating doctor placed work restrictions, which she alleges, if reasonably accommodated by Boston Scientific, did not prevent her from performing her duties as an FBISR. (Id. ¶ 32.) Specifically, Messenger's “treating doctor provided that [she] could tolerate periods of standing of up to one (1) hour with breaks of ten (10) to fifteen (15) minutes during which she could either sit and/or change positions before standing again.” (Id. ¶ 33.) Plaintiff contends that Boston Scientific was aware of the foregoing restrictions in May 2016. (Id.)

         Messenger alleges that she “was capable of performing the essential functions and duties of an FBISR while remaining within the work restrictions placed upon her by her treating doctor, with the reasonable accommodation of the lead shields and/or surgical control rooms at [Boston Scientific's] disposal, as she could sit and/or stand behind the shields and/or in the control rooms while attending and/or observing surgical procedures.” (Id. ¶ 34.) According to Plaintiff, even though in May 2016 it was, without undue burden or hardship, capable of providing her with a lead shield and/or a surgical control room that would accommodate her work restrictions and physical impairments and/or limitations, Boston Scientific refused to do so. (Id. ¶ 35.)

         On June 21, 2016, Messenger again expressed her desire to return to work to Boston Scientific. (Id. ¶ 36.) Plaintiff alleges as of June 21, 2016, she was capable of performing and qualified to perform all essential functions and duties of an FBISR with reasonable accommodation from Boston Scientific. (Id. ¶ 37.) Specifically, Messenger “was capable of performing her job duties as an FBISR so long as [Boston Scientific] provided her with the reasonable accommodation of the lead shield(s) and/or surgical control room(s) at its disposal.” (Id. ¶ 38.) Plaintiff further alleges that despite her attempt to return to work in June 2016, Boston Scientific did not contact her regarding her request to return to work nor did it offer to accommodate her physical impairments and/or limitations with the assets at its disposal. (Id. ¶ 39.)

         In September 2016, Messenger again contacted Boston Scientific regarding her job status. (Id. ¶ 40.) As of September 2016, Plaintiff contends that she remained capable of performing and qualified to perform all essential functions and duties of an FBISR with reasonable accommodation from Boston Scientific. (Id. ¶ 41.) Specifically, Messenger “was capable of fulfilling her job duties as an FBISR so long [Boston Scientific] provided her with the lead shield(s) and/or surgical control room(s) at its disposal.” (Id. ¶ 42.)

         On September 27, 2016, Boston Scientific advised Messenger that, as a result of failing to provide an anticipated return to work date, it was unclear whether she would be able to return to work at Boston Scientific in the future. (Id. ¶ 43.) More specifically, Scott Heuler wrote a letter to Plaintiff stating:

You have been out of work since April 4, 2016. You have exhausted your available leave under the Family and Medical Leave Act (FMLA) and are in the process for applying for Long-Term Disability (LTD) benefits. At this time, we have not been provided an anticipated return to work date and it is unclear when you will be able to return to work in the future. In order to meet ongoing business needs, the Company cannot hold your position open. If you become able to ...

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