The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Defendant AFSCME Illinois Council 31's (Union) Motion for Summary Judgment (d/e 17). The Plaintiff Susan Louise Smith was fired by the Union on August 26, 2003. Smith's Complaint (d/e 4) alleges that the Union violated her rights under the Americans with Disabilities Act (ADA) and § 510 of the Employee Retirement Income Security Act (ERISA). 42 U.S.C. §12101, et seq.; 29 U.S.C. § 1140. Smith concedes that the Union is entitled to summary judgment on her ADA claim because she has no evidence that she was disabled within the meaning of the ADA. Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (d/e 29) (Response), at 2. Smith has also failed to present evidence of a violation of ERISA § 510. The Union's Motion for Summary Judgment is therefore allowed.
Smith began working for the Union in October 1990, as an accountant/bookkeeper. She worked at the Union's Springfield, Illinois, office. She worked for the Union until she was fired on August 26, 2003. At the time of her termination, she held the position of Administrative Accountant. In that position, she maintained the Union's accounting books. She also administered the payroll for the Union. Defendant's Motion for Summary Judgment (d/e 17) (Defendant's Motion), Statement of Undisputed Facts, ¶ 11; Response, at 3. Her supervisor was the Union's Business Manager William Sarver. Sarver reported directly to the Union's Executive Director Henry Bayer. Defendant's Motion, Exhibit A, Declaration of Henry Bayer (Bayer Declaration), ¶¶1, 4; Declaration of William Sarver (d/e 22) (Sarver Declaration), ¶ 1. Sarver worked in the Springfield office with Smith. Bayer worked at the Union's Chicago, Illinois, office.
The Union provided health and disability benefits pursuant to the terms of the Collective Bargaining Agreement with the United Counsel Staff Union of Illinois. Smith's position was non-union, but she received the same health and disability benefits. Defendant's Motion, Exhibit B, Deposition of Susan Louise Smith (Smith Deposition), at 31-32. The parties agree that the Union's health and disability benefit plan was an ERISA qualified plan. The plan was a self-insured plan. The Union paid claims up to a point called a stop/loss point. Thereafter, other insurance purchased by the Union paid the claims. In 2006, the stop/loss point per beneficiary was $70,000.00, and the annual aggregate stop/loss point for the entire plan was in excess of $2,000,000.00. Response, Exhibit 3, Deposition of Henry Scheff, at 18-21. The stop/loss amounts in 2003 would have been somewhat less. Id.
Sarver, as the Union's Business Manager, reviewed weekly expense reports. These reports included information on all expenses, including the cost of health claims under the Union's plan. Id., at 141. Bayer approved monthly financial reports for the Union. Smith states that each Monday she received a listing of all health claims from the Union's third party administrator Allied Benefit Systems (Allied). Each claim on the report listed the insured employee, the amount of the payment, the service provider, the date of payment, and whether the patient was the employee or a dependent. Smith made sure that the appropriate funds were transferred to the account that was used to pay the claims. Response, Exhibit 7, Affidavit of Sue Smith, ¶ 10.
Smith states that Sarver thoroughly reviewed these weekly reports. From time to time he wanted Smith to inquire of Allied why individuals were taking certain medications and to make other inquiries of Allied. Id., ¶ 11. According to James Kenney, a customer service representative at Allied, Sarver often contacted him about large bills. Response, Exhibit 13, Declaration of B. James Kenney, ¶¶ 3, 6. Kenney states:
It was typical when an AFSCME claim was paid that involved a high dollar amount, either for surgery or for medication, that Mr. Sarver would contact me. He would typically ask me who the patient was, what was the medical condition being treated and what the prognosis of the patient was. He also asked for an expectation of future costs that were likely to be incurred. Id., ¶ 7. Kinney also states that Sarver's inquiries, "were not consistent with the actions of other clients. In fact, it was rare that any of our other clients would ask for any information pertaining to beneficiaries." Id.*fn1 Sarver states that he only spoke to Allied representatives about specific claims in the last quarter of each year as part of the contract renewal process. He states that otherwise he did not inquire about specific claims. Sarver Deposition, at 110. Sarver states that he had no other reason to need this information. Id.
Smith was never formally disciplined during her tenure with the Union prior to her discharge. Smith was also competent at her job. Sarver states, however, that some employees complained that she was rude and obnoxious. Sarver said that Smith could be "downright hateful" to people. Id., at 36. Sarver also states that Smith would not hesitate to go over his head to speak directly with Bayer. Id., at 35. Smith agreed that she would contact Bayer directly if she had an issue to discuss. Smith Deposition, at 30. Sarver also states that Smith would send out emails on behalf of the Union without prior approval. He told her that he did not want any emails to go out without his prior authorization. Sarver Deposition, at 43-44. Sarver states that he did not formally discipline Smith because the process would be too time consuming. Sarver talked to Smith directly if he had a problem with her. Id., at 37-40
On July 4, 1998, Smith was diagnosed with a brain aneurysm. On July 6, 1998, she underwent surgery in which clips were inserted into her brain to stop the blood flow to the aneurysm. The surgeons also put plates in her head. Smith Affidavit, ¶ 15. She was off work for about three weeks after this surgery. She worked half days the first week of her return. Thereafter, she worked full time. Id., ¶ 16. The Union's ERISA plan paid $52,810.57 for Smith's medical bills in 1998. Response, Exhibit 4, Summary of Large Claims.
In August 2002, Smith had an annual medical examination. As a result of the examination, she was referred to an endocrinologist. The endocrinologist recommended an MRI, but the MRI could not be performed because of the clips inserted in the 1998 surgery. Thus, in January 2003, Smith underwent a CT scan. On February 8, 2003, she was informed that the scan showed she had a brain tumor. Id., ¶ 17. On that day, Smith advised Sarver and Bayer that she had a brain tumor and would need to schedule surgery in the near future. Smith Affidavit, ¶ 19. She requested and received leave to undergo surgery to remove the tumor. The surgery occurred on May 22, 2003. Smith Deposition, at 39.*fn2 The Union's ERISA plan paid $31,391.94 for Smith's 2003 medical bills.
Smith returned to work on August 11, 2003. Smith met with Sarver that morning. Sarver's assistant Stacy Pflugmacher was also present, but did not say anything during the meeting. Sarver asked Smith how she was feeling. Smith said she was fine. She said that a post-operative CT scan showed that the tumor was still there, but was much smaller than before the surgery. She had Sarver feel the scar on her head. Sarver asked if the tumor was cancerous. She told him no, it was totally benign. Smith said that her doctor told her she would need a CT scan every six months and probably need additional brain surgery in the future. Sarver also asked why she was wearing glasses. She explained that there was so much swelling in her brain that her eyes could not focus correctly. She needed the glasses until the swelling went down. She said that this was a transitory thing. Sarver and Smith also discussed the fact that she could not walk in a straight line. The entire conversation lasted about fifteen minutes. At the end of the conversation, Sarver said that he would need the budget. She asked him to let her get accustomed to where she was since she just returned that morning. She said that once the books were closed, she would work on the budget. Smith Deposition, at 67-70; Smith Affidavit, ¶ 21.
Sarver states that during the first two weeks after Smith returned to work, several problems arose. Smith had several disagreements with Pflugmacher. Pflugmacher and Smith disagreed over Smith's accrual of sick time and vacation time. Smith had used time from a "time bank" during her leave. The time bank was available to individuals, such as Smith, who were on extended leave. Sarver states when a person uses time from the time bank, she does not accrue sick leave or vacation leave. Smith, however, claimed that she should have accrued sick leave and vacation leave during this time. Id., at 49-52. Pflugmacher and Smith also had a disagreement over a payroll check that Smith cut for an employee. Pflugmacher and Smith disagreed over whether Smith had calculated the withholding properly. Id., at 56-57. Smith also took an emergency vacation day without following proper procedures. Smith left a voice mail message for Pflugmacher informing her that Smith was taking the day off. Smith was supposed to clear the use of a vacation day with Pflugmacher and give a reason for the need for the emergency vacation day off. She did not, according to Sarver. In addition, Sarver states that Smith did not have any accrued vacation days to use. Id., at 53. Sarver states that Smith also took one to two hours off one other day. Smith expected to be paid for the time, but she did not have any accrued vacation or sick time left. Id., at 55. Last, Smith sent out a letter from the department without prior authorization. Sarver did not want Smith sending out letters for the department. According to Sarver, she had done this in the past, and she was told not to do so. Id., at 59-60.*fn3
Sarver had a telephone conversation with Smith on August 22, 2003. Sarver made contemporaneous notes concerning this conversation. Response, Exhibit 10, at 1-3, Sarver Notes dated August 22, 2003. Sarver discussed with Smith the miscalculated paycheck, the emergency request for vacation, and the letter sent out by Smith without approval. Smith claimed that she calculated the paycheck using tax tables. With respect to the emergency vacation, Sarver told her she needed a reason for the emergency request. Smith questioned why she needed to provide a reason. During the conversation, Smith asked Sarver whether he was harassing her. Sarver responded that he was asking for something that was not out of line. Smith indicated that she left a voice mail for Pflugmacher stating that she was sick. Sarver also spoke to Smith at this time about sending out the letter without his approval. He told her that he only wanted correspondence going out over his name or the office manager's name, not hers. Sarver described the call as confrontational. Sarver Deposition, at 144-54. A f t e r t h i s conversation, Sarver planned to meet with Smith in person to discuss these problems. On Saturday, August 23, 2003, Sarver prepared a list of topics to discuss with Smith. Response, Exhibit 10, at 4, Sarver Notes dated August 23, 2003. The notes detail each of the five problems. Sarver made a note that Smith thrived on dissension and discord, and keeping things stirred up. Sarver explained the note in his deposition: "What I ...