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Walton v. Nova Information Systems

April 11, 2008


The opinion of the court was delivered by: Thomas A. Varlan United States District Judge



Plaintiff Nell Walton ("Plaintiff") filed the present civil action against NOVA Information Systems ("NOVA"), a Division of U.S. Bancorp ("USB") (hereinafter collectively referred to as the "Defendants"), alleging violations of the Sarbanes-Oxley Act ("SOX"), the Americans with Disabilities Act ("ADA"), the Family Medical Leave Act ("FMLA"), wrongful discharge under Tennessee law, and the Tennessee Public Protection Act ("TPPA"). Defendants filed a motion for summary judgment [Doc. 30], which is ripe for determination.

The Court has carefully considered the parties' briefs and supporting materials [Docs. 30, 31, 32, 45, 47, 58] in light of the entire record and controlling law. For the reasons set forth herein, the Defendants' motion for summary judgment [Doc. 30] will be GRANTED in part and DENIED in part.


Defendant NOVA, a division of Defendant USB, is a credit card processing company and former employer of the Plaintiff. [Docs. 31 at 3; 45 at 6.] In March of 2003, Plaintiff began working at NOVA's Knoxville, Tennessee, office as a database administrator ("DBA"), whose responsibility was to ensure that NOVA's systems and databases kept running. [Doc. 32-3 at 4-5.] When she began working for NOVA, Plaintiff received an employee handbook that included information on Defendants' attendance and leave policies. [Doc. 32-5 at 2-43.]

After about six months, there was a reorganization at NOVA, and Rakesh "Rocky" Gupta ("Gupta") became Plaintiff's immediate supervisor in the Datawarehouse Group. [Docs. 32-3 at 5; 40, Ex. 28.] Plaintiff's responsibility to keep the databases running initially remained the same, but her duties changed in early 2004 when many employees in the information technology department were assigned to the CISP project, which involved securing databases to comply with credit card industry requirements set by VISA. [Doc. 32-3 at 5-6.] Plaintiff's focus was database security, including access control and applying security patches. [Doc. 32-3 at 9.] The CISP project was expected to be completed around September of 2004 [Doc. 32-3 at 8.] The following year, CISP was replaced with a similar project involving the "Payment Card Industry Data Security Standard" ("PCI"). [Doc. 32-3 at 9.]

In March of 2004, Frank Erjavec ("Erjavec") became Plaintiff's immediate supervisor, and she allegedly disliked how her work assignments changed frequently under Erjavec's leadership. [Doc. 32-3 at 11.] Plaintiff also perceived Erjavec and another DBA, Margaret Norman ("Norman"), as too controlling over the databases and not allowing her to use her technology experience. [Doc. 32-3 at 11.] On June 23, 2004, Erik Toivonen ("Toivonen"), NOVA's Executive Vice President for Systems and Technology, sent an email asking employees for input on "topics most common and germane to our S&T organization" for an upcoming "All Hands" meeting. [Doc. 32-7 at 2.] Plaintiff responded the next day with a document outlining ten topics, including the open door policy, ethics and accountability, and security. [Doc. 32-7 at 2-3.] For the security topic, Plaintiff wrote:

Security is extremely important at NOVA, but people who know little about S&T are making some decisions regarding security in a vacuum. How can we resolve this? We have wasted a lot of time trying to figure out a way to implement security policies that are just not workable - to the point of throwing away the day-to-day tasks we have to do to keep the business running effectively. [Doc. 32-7 at 3-4.] After the All Hands meeting on June 29, 2004, Plaintiff met with Toivonen, and they allegedly discussed her perception of ethical problems involving favoritism and unkind treatment of employees at NOVA [Docs. 32-3 at 12-14; 32-8.] Plaintiff expressed her opinion that she found Gupta to be a poor manager. [Doc. 32-3 at 14.] There was also some discussion of the CISP project. [Doc. 32-3 at 12-14.] After the meeting, Toivonen assured Plaintiff several times that there would be no retribution as a result of their conversation. [Docs. 32-3 at 16; 32-8 at 2.]

On June 30, 2004, Gupta emailed his department that "all issues must be raised to [another supervisor] or [Gupta] before they are raised in any public forum." [Doc. 40, Ex. 6.]

The email warned that "[i]f anyone other than [another specific supervisor] or [Gupta] raises any issue in a public forum outside of our group they will be subject to disciplinary action." [Doc. 40, Ex. H.] Plaintiff forwarded the email to Toivonen the same day and expressed her concern about Gupta's email. [Doc. 40, Ex. H.] On the same day, Toivonen responded to Plaintiff that he interpreted Gupta's email as "wanting to ensure the team is not going around him or [another specific supervisor] with issues without first giving them the chance to respond and/or resolve." [Doc. 40, Ex. H.] In response to Plaintiff's view that Gupta's email was threatening disciplinary retribution, Toivonen wrote, "I totally agree. This is the first written example of a threat I have seen and I will deal with it appropriately." [Doc. 40, Ex. H.] Toivonen allegedly spoke to Gupta about the email and put a professional development plan in place for Gupta to strengthen his management style. [Doc. 32-10 at 4.] Toivonen also spoke to Stacy Fluech ("Fluech"), Director of Human Resources, "to make sure that they understood the concerns." [Doc. 32-10 at 4.]

On August 25, 2004, Plaintiff left a voicemail message for Gupta that said: Rocky, this is Nell. The paint here in Knoxville is causing my throat to close up and I am bleeding out of my eyes. I will have to take at least the next two weeks off and maybe the entire month of September. I will try to work from home. [Doc. 32-11 at 2.] Plaintiff received a "written warning regarding unacceptable and unprofessional behavior" from Gupta as a result of this incident on August 30, 2004. [Doc. 32-11 at 2.] According to the written warning, Plaintiff intended the message to mock her co-worker, Norman, who was allegedly out on sick leave due to asthma aggravated by fumes generated by paint used to remodel the Knoxville office. [Doc. 32-11 at 2.] Plaintiff was disciplined for acting "in an unprofessional manner whereby she demonstrated inappropriate behavior." [Doc. 32-11 at 2.] In the employee response section of the written warning, Plaintiff commented that she "totally agree[d] the comment was inappropriate" and expressed how her "deep resentment" of Norman's absences led her to leave the inappropriate message. [Doc. 32-11 at 2.] On September 3, 2004, Plaintiff emailed Fluech that the written warning had been "difficult for [her] to deal with psychologically" and had left her "stressed, demoralized and somewhat depressed." [Doc. 32-12 at 2.] Plaintiff indicated that she was seeing a counselor and would be working on anger management and other workplace coping strategies. [Doc. 32-12 at 2.]

On October 1, 2004, Plaintiff wrote a letter to "Human Resources Compliance Manager" and requested "some specific accommodations under the Americans with Disabilities Act." [Doc. 32-13 at 2.] Plaintiff stated that she needed "to work in a structured environment where I am very clear on what is expected of me and I am very clear on policies and procedures." [Doc. 32-13 at 2.] In her letter, Plaintiff included several accommodation suggestions including having clear written instructions, having an "on-call" calendar, having flexibility for working from home, reducing the noise level in her work area, and working with a different supervisor. [Doc. 32-13 at 2.] On October 8, 2004, Sophronia Fisher ("Fisher") of NOVA's Human Resources responded to the request by asking for additional information, including an accommodation form to be completed by Plaintiff's physician.

[Doc. 32-14 at 2.] On October 18, 2004, Gupta informed the DBAs that they were to carry their pagers at all times and were on-call 24/7. [Doc. 32-3 at 18.]

On October 20, 2004, Plaintiff submitted to NOVA's Human Resources an accommodation form filled out by her counselor. [Doc. 32-16 at 2-5.] The accommodation form identified Plaintiff's medical condition as depression and stress. [Doc. 32-16 at 4.] The counselor recommended accommodations included Plaintiff receiving "clear instructions on all assigned tasks, deadlines and projects" in addition to having an "on-call calendar" and reduction in noise in Plaintiff's work area. [Doc. 32-16 at 4.] The counselor also wrote that "[a]s long as tasks and duties are clearly defined, [Plaintiff] should have no problems performing her job functions." [Doc. 32-16 at 3.] On October 21, 2004, Human Resources asked some follow-up questions regarding the counselor's recommendations, and Plaintiff responded the next day with a three-page document explaining the accommodation requests. [Doc. 32-17 at 2, 4.]

Around early to mid-November of 2004, Plaintiff spoke to David Brattain ("Brattain"), NOVA Senior Vice President, Global Systems Operations and Production Support. [Doc. 32-3 at 18.] According to Plaintiff, she informed Brattain of her medical condition, and he allegedly informed Plaintiff that she was being transferred to another department to improve her situation and moved her office in the mean time per Plaintiff's request. [Doc. 32-3 at 18.] Around November 16, 2004, another reorganization occurred at NOVA, and Larry Smith ("Smith") became Plaintiff's supervisor in the Integration Technologies department, though much of her direction came from Frank Bolling ("Bolling"). [Docs. 32-3 at 20; 40, Ex. 28.]

On November 19, 2004, Plaintiff sent an email to several NOVA supervisors about a situation involving one of NOVA's databases. According to Plaintiff, the software producer would stop supporting the version of the database used by NOVA after December 31, 2004. Plaintiff recommended purchasing extended support or migrating the database to newer software that was supported by the software producer. Plaintiff also discussed other perceived complications regarding the database. [Doc. 44, Ex. M.]

After Brattain asked Plaintiff to update him regarding her work changes on January 6, 2005, Plaintiff responded the next day that she was satisfied with her new office location and new supervisors. [Doc. 32-18 at 2.] However, she indicated issues with others "attempting to dump unpleasant/unwanted work off on other departments" and human resources not addressing her medical condition. [Doc. 32-18 at 2.] Brattain forwarded Plaintiff's email to Human Resources and wrote, "One concern, we have to make sure that inspite [sic] of [Plaintiff's] situation that she will be able to do her job." [Doc. 32-18 at 2.] On January 14, 2005, Plaintiff wrote Brattain asking questions about what team was responsible for particular duties after the reorganization. [Doc. 32-19 at 3.] After Brattain responded, Plaintiff enthusiastically thanked Brattain for his response (THANK YOU SIR!!!!!!! YOU ARE THE BEST!!). [Doc. 32-19 at 2.] But on January 29, 2005, Plaintiff again wrote Brattain indicating that she had a "relapse of [her] condition." [Doc. 32-20 at 2.] Rather than problems with her post-reorganization job, Plaintiff complained of "occupational stress" coming from other groups allegedly "pressuring [her] to do work outside of what [she] should be doing." [Doc. 32-20 at 2.] Plaintiff concluded, "I guess I'm out until the professionals clear me to come back to work." [Doc. 32-20 at 2.]

On February 2, 2005, Plaintiff met with Fluech from NOVA's Human Resources. [See Docs. 32-21; 32-22.] Plaintiff allegedly talked about how the 24/7 on-call status resulted on her being called three to four times in a week. [Doc. 32-22 at 4.] Plaintiff also complained about the lack of productivity by Norman, another DBA whom Plaintiff had mocked in the voicemail to Gupta months earlier. [Doc. 32-22 at 4.] Fluech communicated Plaintiff's concerns to Brattain and asked whether on-call status could be rotated because it would reduce Plaintiff's stress. [Doc. 32-22 at 4.] Brattain responded in an email on February 4, 2005, that Plaintiff was "not a 24/7 on call resource any more than anyone else in the production support group." [Doc. 32-22 at 4.] Brattain also described Plaintiff's duties performing maintenance and upgrades on a particular database and resolving issues and problems associated with that database. [Doc. 32-22 at 4.] As for Plaintiff's issue with Norman, Brattain indicated he would speak to Plaintiff's supervisor, Smith. [Doc. 32-22 at 4.]

On February 9, 2005, Plaintiff submitted a letter from Dr. Cathy Mathes updating Fluech on Plaintiff's medical condition. [Doc. 32-24 at 3.] Dr. Mathes stated that Plaintiff was being treated for "severe situational depression" with a mix of medication and counseling. [Doc. 32-24 at 3.] Dr. Mathes indicated that the following modifications to Plaintiff's work environment could further assist in her recovery: (1) have a schedule as to when Plaintiff would need to be available outside of normal work hours; (2) having a clear definition of who assigns tasks and what tasks are to be done; (3) having flexibility in her work schedule; and (4) having management check-in with Plaintiff periodically. [Doc. 32-24 at 3.]

On February 22, 2005, Plaintiff spoke to Bolling about her request for an accommodation. [Doc. 32-25 at 2.] Plaintiff indicated that they spoke about her job description, scheduling, and Plaintiff's problems with workload and staff responsibilities. [Doc. 32-25.] In an email from March 1, 2005, Bolling indicated to Fluech that being on call 24/7 would be an essential job function for Plaintiff's position. [Doc. 32-26 at 2.] In a meeting early in March of 2005, Fluech allegedly told Plaintiff that the on-call schedule accommodation could not be met, though Plaintiff could consider taking short-term disability, long-term disability, or FMLA. [Doc. 32-4 at 36.] Plaintiff allegedly responded that she would take the suggestion under consideration. [Doc. 32-4 at 36.]

On March 8, 2005, Plaintiff sent an email entitled "Security Compliance Audit 2005" to Bolling, William Hodge, Jefri Hillon, and Larry Smith. [Doc. 40, Ex. 26.] The email identified perceived database compliance issues that she felt needed "to be addressed ASAP." [Doc. 40, Ex. 26.] According to Plaintiff, she researched for two to three weeks prior to sending the email and did so on her own initiative. [Doc. 32-3 at 36.] According to Plaintiff, the email addressed matters relating to both the previous 2004 audit and the upcoming 2005 audit of database security at NOVA. [Doc. 32-3 at 36.]

On March 14, 2005, Plaintiff emailed Fluech that she was feeling "extremely ill" and believed that she was "going to have to take short-term disability." [Doc. 32-27 at 2.] According to Defendants, Plaintiff applied for and was approved for disability benefits through April 14, 2005, by NOVA's short-term disability carrier, The Hartford. [Doc. 31 at 9.] Plaintiff applied for workers compensation benefits and received information from USB on the workers compensation process on April 14, 2005, but she was eventually denied such benefits. [Docs. 32-4 at 35; 32-28.]

On March 16, 2005, while on leave, Plaintiff sent an email entitled "Current Cardholder Database Vulnerabilities/PCI Non-Compliance" to William Hodge, Shane Cruze, Jefri Hillon, Adrian Sanabria, Bob Pottratz, and Larry Smith. [Doc. 40, Ex. 27.] The email indicated that Plaintiff had "found the following items that are non-compliant with the Payment Card Industry Data Security Standard ("PCI")." [Doc. 40, Ex. 27.] PCI was similar to the previous CISP project that Plaintiff and others had worked on in 2004. [Doc. 32-3 at 39.] According to Plaintiff's email, she believed that NOVA was non-compliant with PCI and was, thus, non-compliant with certain federal laws. [Doc. 40, Ex. 27.] Similar to the March 8, 2005, email, Plaintiff created the March 16, 2005, on her own initiative and as a result of her own legal research. [Doc. 32-3 at 39-40.] Smith forwarded Plaintiff's email to Bolling who then forwarded the email to Brattain and another individual. [Doc. 47, Ex. L.] Bolling added, "FYI, Nell sent this out. These issues should be escalated through her chain of command." [Doc. 47, Ex. L.] Brattain subsequently forwarded the email to Fluech and wrote, "This is part of the issue. I cannot trust her to do this work and distribute this information appropriately." [Doc. 47, Ex. L.]

On April 11, 2005, and while still on short-term disability, Walton filed a complaint with the Department of Labor/Occupational Safety and Health Administration ("DOL/OSHA") that alleged a violation of 18 U.S.C. § 1514A. [Doc. 40, Ex. 28.] In particular, the complaint discussed Plaintiff's alleged concerns with database security at NOVA. [Doc. 40, Ex. 28.]

On May 1, 2005, Walton emailed Fluech, "My doctor still has not released me to return to work." [Doc. 32-32 at 2.] According to Defendants, the Hartford informed NOVA that Plaintiff no longer met the definition of disabled and was no longer eligible for continued disability benefits on July 22, 2005. [Doc. 31 at 10.] On August 2, 2005, Plaintiff submitted a letter to NOVA asking for vacation from August 4 to August 24, 2005, and medical leave without pay from August 25 to December 31, 2005. [Doc. 32-34 at 3.] Plaintiff attached a letter from her psychiatrist, Dr. Catherine Gyurik, that stated, "The above is ...

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