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Massey v. Bell South Telecommunications, LLC

United States District Court, W.D. Kentucky, Louisville

December 2, 2014



JOHN G. HEYBURN, II, Chief Senior District Judge.

Plaintiffs, Davonne Massey and Tirana Dishman, have moved for reconsideration of the Court's order dated July 10, 2014, which granted summary judgment to Defendant. Plaintiffs raise some legitimate questions about the Court's determination that certain statements by Kelly Borders and Marie Kaelin were inadmissible hearsay and could not be considered.


The Court detailed the relevant facts in the July 10 order but will begin with a brief summary in the light most favorable to Plaintiffs. Plaintiffs sued BellSouth Telecommunications under both the interference and retaliation theories of recovery under the Family Medical Leave Act but later withdrew their interference claims. They allege that BellSouth took a number of adverse employment actions-including increased monitoring, formal disciplinary procedures, and their ultimate terminations-at least in part because both took FMLA leave.

Both Massey and Dishman were Sales Associates at a BellSouth call center in Louisville, Kentucky, where they provided customer service and sold various products and services. As Sales Associates, Plaintiffs were required to adhere to a Code of Ethics and to meet certain objectives. For example, sales associates were required to authenticate customer calls and were not allowed to "stack" promotions by giving customers more discounts than BellSouth wanted to offer. To ensure they were following the rules and meeting these objectives, BellSouth could listen to these calls in a number of ways: managers in the call center could observe the calls by sitting next to the Sales Associates; these same managers could listen into the calls remotely (either in real-time or later as recordings); and members of the BellSouth National Observation Team in Atlanta would randomly observe call centers throughout the company. If the National Observation Team heard an improper call, they would refer the matter to local management to handle the matter. Local management used a discretionary four-step progressive discipline process: (1) counseling; (2) warning; (3) suspension or letter in lieu of suspension; and (4) termination. Depending on the nature of the violation, management could exercise discretion to skip steps and impose a higher level of discipline or forego formal discipline altogether.

By the time they were terminated, both Plaintiffs had received negative performance reviews and accumulated substantial disciplinary records. Between February 2009 and October 2010, Massey received ten warnings for violating company policy; in August 2010, she was suspended for one day for failing to authenticate a customer during a phone call. Dishman had a similar record. Between January 2008 and August 2010, she also received ten warnings for various violations and was suspended in August 2010 for improperly stacking promotions to make additional sales.

While the National Observation Team in Atlanta detected many of these infractions, Marie Kaelin was Plaintiffs' direct supervisor in Louisville making many of the disciplinary decisions. She signed many of the disciplinary forms in both Plaintiffs' employment records. Kelly Borders-Kaelin's supervisor and the Center Sales Manager-was also copied on several reports from the National Observation Team; while she was aware of the misconduct and discipline, her role in the decision-making here is not entirely clear.

Kaelin disciplined Massey for several different violations, but her repeated failure to authenticate customer accounts ultimately led to her termination in October 2010. On August 5, 2010, the National Observation Team observed a call where Massey failed to properly authenticate a customer. They referred the issue to Marie Kaelin and Kelly Borders, who ultimately suspended Massey for a day. On October 18, 2010, the National Observation Team again observed a call where Massey failed to authenticate a customer account. This time, the matter was referred to others in Massey's department. Barbara Deckard held an investigatory meeting in Louisville; Joe Feldcamp reviewed Massey's disciplinary history and referred the matter to Shannon Sykes, the Employee Relations Manager in Atlanta; Sykes agreed that Massey should be terminated and Barbara Deckard ultimately terminated Massey for misconduct-non-compliance with applicable legal or regulatory requirements.

Dishman's story is similar. Kaelin also disciplined her for numerous violations before her termination for stacking promotions in September 2010. On September 21, 2010, Jennifer Zebley-a Sales Coach who had never before supervised Dishman-observed one of Dishman's calls where she improperly offered a customer more than one promotion. Zebley held an investigatory meeting, shared her findings with multiple supervisors (including Kelly Borders), and ultimately terminated Dishman for misconduct-sales integrity.


Plaintiffs filed this lawsuit because they believe Kaelin and Borders disciplined them and subjected them to greater scrutiny for taking FMLA leave. Massey took approved FMLA leave for a variety of reasons between 2006 and April 2010 (more than six months before her termination). Dishman took several days of approved FMLA leave between December 2009 and March 2010 (also more than six months before her termination).

To support their claims, both Plaintiffs claim that Marie Kaelin, their supervisor, informed them that BellSouth officers were looking for reasons to terminate their employment because they had utilized FMLA leave. In Massey's deposition, she testified: "it was actually told to me by my supervisor [Marie Kaelin], that Kelly [Borders] wanted her to listen to me until she got something on me to fire me because I take FMLA." Dishman allegedly heard a similar comment. She testified that Marie Kaelin pulled her aside and said "whatever you do, don't miss any more days.... You know that they're trying to get rid of you, because you use FMLA... I'm supposed to be listening to every single one of your calls right now."

In the initial order granting BellSouth's motion for summary judgment, the Court declined to consider the testimony of Massey and Dishman regarding the statements of Kaelin and Borders, labeling them as inadmissible hearsay. The Court then held that, without these statements, Plaintiffs had produced no evidence to establish the causation element of their prima facie retaliation case. Moreover, the Court ruled that Plaintiffs had not put forth any evidence establishing that BellSouth's actual business reasons for terminating them-namely, their extensive disciplinary records-were mere pretext.

Plaintiffs have now asked the Court to reconsider its determination that the statements attributed to Marie Kaelin and Kelly Borders were inadmissible hearsay. A motion to reconsider is generally treated as a motion to alter or amend a judgment under Rule 59(e). See Inge v. Rock Fin. Corp., 281 F.3d 613, 617 (6th Cir. 2002). These motions are "extraordinary in nature and so should only be granted sparingly." Gesler v. Ford Motor Co., 185 F.Supp.2d 724, 729 (W.D. Ky. 2001). The Court will grant a Rule 59 motion in four circumstances: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) the need to prevent manifest injustice. GenCorp, Inc. v. Amer. Inter. Underwriters, 178 ...

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