United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE.
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:
I: Interference with Rights Under the FMLA, 29
U.S.C. § 2615(a)(1)
II: Retaliation for Exercising FMLA Rights, 29
U.S.C. § 2615(a)(2)
III: Intentional Infliction of Emotional Distress
IV: Negligent Infliction of Emotional Distress
V: Negligence/Vicarious Liability
VI: Wrongful Termination Based Upon Constructive
VII: Punitive Damages
VIII: Causation and Damages
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).
further consideration, the Court now issues the following
Memorandum Opinion and Order.
AND PROCEDURAL BACKGROUND
Alleged Misconduct in the Workplace
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.
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).
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).
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, ¶
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).
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.
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). 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,
Vonderhaar's Workplace Conduct
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). 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
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.
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).
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.
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).
Vonderhaar took continuous FMLA leave from April 21, 2015 to
May 27, 2015. (Doc. 36-6, ¶ 17); [see Doc. 1-1,
¶ 15). 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) .
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.
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).
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. 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).
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
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).
FMLA CLAIMS (COUNTS I & II)
Procedural Defects In ...