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Vonderhaar v. AT&T Mobility Services, LLC

United States District Court, E.D. Kentucky, Northern Division, Covington

March 8, 2019

VONDERHAAR PLAINTIFF
v.
AT&T MOBILITY SERVICES, LLC ET AL. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE.

         Lawsuits under the Family Medical Leave Act ("FMLA") typically involve the denial of FMLA leave time. This unusual employment case, however, arises from Plaintiff Kristina Vonderhaar's allegations that she was forced to take FMLA leave after reporting that her coworkers were making unauthorized changes to customer accounts. Shortly after returning to work, Plaintiff alleges she was mistreated. As a result, she voluntarily resigned and brought this lawsuit nearly two years later, asserting the following eight (8) counts:

         Count I: Interference with Rights Under the FMLA, 29 U.S.C. § 2615(a)(1)

         Count II: Retaliation for Exercising FMLA Rights, 29 U.S.C. § 2615(a)(2)

         Count III: Intentional Infliction of Emotional Distress ("IIED")

         Count IV: Negligent Infliction of Emotional Distress ("NIED")

         Count V: Negligence/Vicarious Liability

         Count VI: Wrongful Termination Based Upon Constructive Discharge.

         Count VII: Punitive Damages

         Count VIII: Causation and Damages

         This matter is now before the Court on Defendants' motion for summary judgment (Doc. 36). The Court previously heard oral argument on Defendants' motions and took the matter under submission. (Doc. 48).

         After further consideration, the Court now issues the following Memorandum Opinion and Order.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Alleged Misconduct in the Workplace

         Defendant AT&T Mobility Services, LLC ("AT&T") hired Vonderhaar on September 15, 2013. (Doc. 36-4, ¶ 3). Throughout her employment with AT&T, Vonderhaar worked as a Retail Sales Consultant at the Maysville, Kentucky location. Id.; (Doc. 1-1, ¶ 6). There, Vonderhaar reported to Jessica Webb, the store manager, until sometime in 2014 when Fred Hoskins took over as store manager. (Doc. 38-5, PL's Dep. 31-32). The store managers reported to Amy Waymire, the area retail sales manager. Id. at 30-32.

         In 2014 and 2015, employee requests for FMLA leave time were processed by AT&T's FMLA Operations team located in San Antonio, Texas. (Doc. 36-6, ¶¶ 4-5). This team was tasked with determining whether to approve or deny FMLA leave and would notify both the employee and their supervisor of the decision via e-mail. (Doc. 35-8 at 46-48). Significantly, an employee's supervisor or manager does not have access to medical documentation; nor do they have any input into the decision to approve or deny a request for FMLA leave. (Doc. 36-6, ¶ 9).

         In November and December of 2014, Vonderhaar underwent multiple hysterectomy surgeries. (Doc 38-5 at 44-45). Around this same time, the FMLA Operations team received a certification from Vonderhaars health care provider regarding the surgery. (Doc. 36-6, ¶ 11). The medical certification stated that intermittent leave was medically necessary for two days per week. (Doc. 36-6, Ex. 1). In due course, the FMLA Operations team approved Vonderhaars FMLA request. Id. at ¶ 12. She then took continuous FLMA leave from November 24, 2014 to February 2, 2015. Id. at ¶ 13; (Doc. 38-5 at 115); (Doc. 1-1, ¶ 9). When Vonderhaar returned, she resumed working in her same previous position, performed her usual duties, and earned the same salary. (Doc. 38-5 at 115); (Doc. 36-5, ¶ 8).

         Vonderhaar testified that sometime near the end of 2014 or early 2015, AT&Ts management informed employees of a change in policy, which was that going forward, adding temporary phone lines to customer accounts without authorization was prohibited. (Doc. 38-5 at 60, 68). Notwithstanding the policy change, in February 2015 Vonderhaar alleges her co-workers added unauthorized temporary phone numbers to customer accounts. (Doc. 38-5 at 60-61); (Doc. 1-1, ¶ 10).[1] According to Vonderhaar, she informed the assistant store managers, Hannah Eves and Tabitha Everman, that employees were making unauthorized changes to customer accounts. (Doc. 38-5 at 65-66). Vonderhaar, however, did not report the alleged misconduct to Waymire, AT&Ts Ethics Hotline, or any public entity. (Doc. 38-5 at 65, 67, 69).

         Roughly a month later, on March 6, 2015, the FMLA Operations team received a second medical certification from Vonderhaar's health care provider, signed March 2, 2015, indicating that Vonderhaar suffered from heart palpitations and was incapacitated from February 19, 2015 to March 13, 2015. (Doc. 36-6, Ex. 2); see Id. at ¶ 14. This certification, however, stated that intermittent leave was not medically necessary. (Doc. 36-6, Ex. 2). Nonetheless, the FLMA Operations team approved Vonderhaar for intermittent FMLA leave on nine (9) dates.[2]

         On or about April 8, 2015, Vonderhaar verbally reported to Eaves that a co-worker had added an extra line to an existing customer's account by signing a two-year contract without the customer being present at the store. (Doc. 1-1, ¶ 11); (Doc. 38-5 at 57-58). Contrary to company policy, the transaction took place over the phone. (Doc. 38-13 at 11). On April 8, 2015, after her conversation with Eaves, Vonderhaar utilized AT&T's anonymous, third-party operated Ethics Hotline to report the incident. (Doc. 38-5 at 74-75); (Doc. 36-4, ¶ 6).[3] As a result, AT&T's HR department launched an investigation on April 28, 2015. (Doc.36-7, ¶ 6). After Eaves and the accused co-worker were interviewed, it was concluded that the allegations were unsubstantiated. Id.; (Doc. 36-4, 12).[4]

         B. Vonderhaar's Workplace Conduct

         Vonderhaar, like other AT&T employees, received regular training on AT&T's Code of Business Conduct ("COBC") and was aware of her obligation to treat others professionally and respectfully in the workplace. (Doc. 38-6 at 35-36). AT&T also maintained a progressive discipline and attendance policy. Under AT&T's Attendance Guidelines, infractions were assigned a point value in % increments depending on the degree of tardiness, ranging from Va to 1 full point. (Doc. 36-5, Ex. 1 at 118).[5] Discipline was carried out by issuing the employee: a Counseling Notice at 4 points; a Written Warning at 5 points; a Final Written Warning at 6 points; and Termination at 7 points. Id. However, 180 days after an attendance infraction, the associated point value is extinguished. Id.

         On February 16, 2015, Vonderhaar received a Counseling Notice for four unexcused absences. (Doc. 38-8 at 10). A Written Warning was sent to Vonderhaar on March 6, 2015, after an additional unexcused absence. Id. at 13.

         But attendance was not the only issue. On March 25, 2015, Vonderhaar's store manager at the time, Hoskins, reported an incident to AT&T's HR department, in which Vonderhaar was reported to have yelled and directed profanity toward another co-worker. (Doc. 36-5, ¶ 9); (Doc. 38-12 at 2-3). Vonderhaar was never disciplined for this incident. (Doc. 36-5, ¶¶ 9-10).

         Shortly thereafter, on March 27, 2015, Hoskins was informed that Vonderhaar had again used profanity with two different co-workers in a conversation about the company's new attendance policy. Id. at ¶¶ 9, 10. Vonderhaar does not recall this incident. (Doc. 38-5 at 93). It is undisputed, however, that Hoskins met with Vonderhaar. According to Hoskins, he discussed the incident with Vonderhaar, reminded her of appropriate workplace behavior, and documented the conversation. (Doc. 36-5, ¶ 10); (Doc. 38-4 at 1). Vonderhaar recalls differently, and claims she was "singled out" by Hoskins to discuss the new attendance policy because she was concerned about how it would affect her FMLA. (Doc. 38-5 at 93, 155). Vonderhaar alleges that in that meeting, Hoskins told her "not to worry about [the new attendance policy], we'll cross that bridge when we get there. Don't worry about the FMLA, [and] how that will affect you." Id. at 93, 154-55. In either event, Vonderhaar was not disciplined for this incident. Id. That same day (March 27), Vonderhaar states she experienced a panic attack at work and Eaves drove her to the hospital. (Doc. 38-5 at 94). She was prescribed anxiety medication and released the same day. Id. at 94, 161.[6]

         On April 16, 2015, Vonderhaar received a Final Written Warning for having accrued a total of six unexcused absences between November 15, 2014 and April 2, 2015. (Doc. 38-8 at 16). The next day, Waymire met with Vonderhaar, Hoskins, and Eaves. In the meeting, Vonderhaar recalls her managers repeatedly asking, "what was going on" and whether she was "having issues" or "problems." (Doc. 38-5 at 100). In addition, Vonderhaar alleges she was told that she was "resentful to the company," her "hormones were not in check," and that she should take an unpaid leave-of-absence so that she did not lose her job. (Doc. 38-5 at 99-101); (Doc. 1-1, ¶ 13). When Vonderhaar refused because she could not afford to go without a paycheck, Waymire allegedly suggested she take the leave-of-absence in the form of FMLA leave and short-term disability in order to cover her wages. (Doc. 38-5 at 100). Vonderhaar eventually agreed and that day took 4.82 hours of intermittent FMLA leave. (Doc. 36-2, Ex. 7 at 74).

         Thereafter, Vonderhaar took continuous FMLA leave from April 21, 2015 to May 27, 2015. (Doc. 36-6, ¶ 17); [see Doc. 1-1, ¶ 15).[7] In addition, Vonderhaar received short-term disability benefits from April 28, 2015 to May 27, 2015. (Doc. 36-6, ¶ 17). While on leave, Vonderhaar phoned AT&T's Ethics Hotline on May 21, 2015, and reported that Waymire had forced her to take a leave of absence in retaliation for reporting the unauthorized changes to customer accounts. (Doc. 38-5 at 122-23). An investigation was conducted by AT&T's HR department and was eventually closed when Vonderhaar's allegations of retaliation and violations of company policy could not be substantiated. (Doc. 36-8, ¶¶ 4-5) .[8]

         When Vonderhaar returned to work, she was reinstated to her previous position, performing the same job duties and earning the same salary. (Doc. 38-5 at 119). At this time, Vonderhaar alleges she witnessed multiple instances where her co-workers added the cost of insurance to customer accounts without authorization. (Doc. 1-1, ¶ 15). Vonderhaar testified that she informed Waymire and Hoskins that "fraud was still being committed on the accounts" but never stated the specifics of the alleged misconduct. (Doc. 38-5 at 82-84). Indeed, Vonderhaar admits that she never filed a complaint via the Ethics Hotline; nor did she contact a public agency to report that insurance charges were being added without authorization. Id. at 84-85.

         After returning from her "forced" FMLA leave of absence, Vonderhaar admits that she was never denied FMLA leave. (Doc. 38-5 at 121). In fact, Vonderhaar requested and was approved to take 5.7 hours of FMLA leave on May 30, 2015, and 8 hours of FMLA leave on June 5, 2015. (Doc. 36-2, Ex. 7 at 63, 87).

         Vonderhaar avers that after she returned to work at the end of May 2015, she "was being treated different." (Doc. 38-5 at 143-44). In particular, Vonderhaar claims that: (1) she was "verbally attacked by a customer in the middle of the sales floor" and Hoskins failed to intervene, (Doc. 38-5 at 139-41); (2) she was not receiving "coaching sessions" from Hoskins and was not informed of her sales goal for the portion of May 2015 when she returned from her FMLA leave, id. at 141, 150; and (3) she felt like Waymire was indifferent toward her and would ignore her and "not even make eye contact." Id. at 142-43.[9] On the other hand, Vonderhaar also testified that when she returned to work, she was never demoted; her job responsibilities were never reduced; she received the same salary; and management never told her she was being terminated. Id. at 119, 139, 148-149. Nevertheless, on June 10, 2015, Vonderhaar sent an e-mail to Waymire and others, informing them she was resigning, effective June 24, 2015. (Doc. 38-15). The reason for her decision, she explained, is that:

[C]ertain individuals have been allowed to cross certain boundaries that the rest of the staff and myself would never dare cross resulting in fraud to the be perpetrated on customer accounts with no repercussions Since my return I don't feel welcome by certain members of management and feel it best if I step down.

Id. Vonderhaar then exhausted vacation time from June 11 through June 24, 2015, when her resignation became effective. (Doc. 36-5, ¶ 18). According to Vonderhaar's own testimony, all of her requests for FLMA leave over the course of her employment with AT&T were approved. (Doc. 38-5 at 52, 121). In fact, when she resigned from her position, Vonderharr had 3.52 hours of FMLA leave remaining. (Doc. 38-10 at 10).

         Nearly two years after resigning, Vonderhaar brought this lawsuit alleging violations of the FMLA, 29 U.S.C. §§ 2601 etseq., and that she had been constructively discharged.

         LEGAL STANDARD

         Summary judgment under Rule 56 is appropriate only when the Court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 [1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). "A genuine issue of material fact exists when, 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475-76 (6th Cir. 2010) (emphasis added) (quoting Anderson, 477 U.S. at 249). When the issue is a "pure question of law," extraneous facts that do not bear on that question are "immaterial." See, e.g., Chappellv. City of Cleveland, 585 F.3d 901, 909-914 (6th Cir. 2009) (citing Scott, 550 U.S. at 381 n.8).

         ANALYSIS

         I. FMLA CLAIMS (COUNTS I & II)

         A. Procedural Defects In ...


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