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Archey v. AT&T Mobility Services LLC

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

March 29, 2019




         This matter is before the Court on Defendants AT&T and Amy Waymire's Joint Motion for Summary Judgment on Plaintiff Lori Archey's claims under the Family & Medical Leave Act (FMLA) (Doc. # 40). In their Motion, Defendants argue Plaintiff has failed to establish a prima facie case of FMLA interference or retaliation because she cannot demonstrate that she gave proper notice of her FMLA-related absence. In the alternative, Defendants assert that Plaintiff's claims are time-barred under the FMLA's two-year statute of limitations. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. For the reasons set forth below, Defendants' Motion is denied.


         AT&T hired Lori Archey as a Retail Sales Consultant (“RSC”) on September 9, 2012 to work at its store located in Maysville, Kentucky. (Doc. # 41-2 at 8). As an RSC, Plaintiff's job duties included selling AT&T products and services to new and existing customers and assisting customers with their accounts. (Docs. # 40-2 at 55 and 41-2 at 8). During the relevant time period, Plaintiff's immediate supervisor was Jessica Webb, who in turn was overseen by Defendant Amy Waymire, the Area Retail Sales Manager. (Docs. # 40-3 at 2 and 40-5 at 1).

         During Plaintiff's tenure at AT&T, the company maintained a system of progressive discipline for repeat unauthorized absences and late arrivals (“tardies”). (Doc. # 40-2 at 59). Each unexcused absence or tardy would be assigned a point value. Id. Points stayed on an employee's record for six months, after which they expired. Id. However, if an employee accrued four points within a six-month period, he or she would be given a “Counseling Notice”; after five points, a “Written Warning”; and after six points, a “Final Written Warning.” Id. These point totals expired within three months, four months, and six months, respectively. Id. After accumulating seven points or more, an employee would be subject to termination. Id.

         Plaintiff's first unauthorized absence occurred on November 17, 2012. (Doc. # 40-3 at 6). On March 1, 2013, Plaintiff was issued a Counseling Notice for accumulating 4.25 attendance points. Id. On August 29, 2013, Plaintiff received a Written Warning for obtaining five points under the attendance policy. Id. at 9. By fall 2013, Plaintiff began experiencing anxiety and suffering from migraine headaches. (Doc. # 41-2 at 12). As a result, she began taking leave under the FMLA in October 2013. (Doc. # 41-3 at 1).

         Approved FMLA absences were considered excused under AT&T's attendance policy. (Doc. # 40-1 at 4). Plaintiff took her first leave of absence under the FMLA on October 21, 2013. (Doc. # 41-3 at 1). On the following day, Plaintiff's doctor faxed AT&T to say that Plaintiff would be absent until October 23rd due to unforeseen anxiety and migraines. (Doc. # 41-4). This application for leave was approved on November 8, 2013. See (Doc. # 41-2 at 20). However, Plaintiff's supervisor, Ms. Webb, noted in Plaintiff's employment log that Plaintiff had violated the attendance policy by giving notice of her absence 41 minutes after the start of her shift on October 21st. (Doc. # 41-5 at 9). The attendance policy requires employees to report all absences-both excused and unexcused-to their supervisors at least one hour prior to the start of their shift. (Doc. # 40-2 at 58). AT&T later admonished Plaintiff in writing for failure to timely notify management of her absences on October 21st and 22nd. See (Doc. # 41-6).

         Plaintiff took another leave of absence under the FMLA from December 5th-8th. Plaintiff's physician certified that Plaintiff's absence on these dates was due to her ongoing medical issues (Doc. # 41-7) and AT&T approved this leave shortly thereafter. (Doc. # 41-8). Nevertheless, Ms. Webb later noted in Plaintiff's employee log that “Archey has missed scheduled shifts due to headaches. I asked Lori if she needed to file for a work accommodation due to her recurring health issues.” (Doc. # 41-5 at 4). On December 13, 2013, AT&T issued Plaintiff a Final Written Warning for accumulating six points based on a new unexcused absence on October 1, 2013.[1] (Doc. # 40-3 at 12). Plaintiff does not contest any of the unauthorized absences on this Final Written Warning. See (Doc. # 41-2 at 41-42).

         Plaintiff's health worsened throughout December 2013 and, as a result, her doctor notified AT&T that Plaintiff would require as-needed leave on an intermittent basis for up to three days per week throughout the upcoming year. (Doc. # 41-9). From this point on, Plaintiff began taking FMLA leaves of absence much more frequently. Specifically, from January 1, 2014 through April 26, 2014, Plaintiff took approximately 37 days off due to her ongoing medical issues. (Doc. # 41-3 at 4-6).

         The events occurring after January 1, 2014 are highly contested. Plaintiff asserts that on May 2, 2014, she met with Ms. Webb and Ms. Waymire. (Doc. # 41-2 at 36). During the meeting, Plaintiff claims she was presented with a Counseling Notice, stating that she had 4.25 attendance points on her record stemming from unexcused absences and tardies accrued from June to August 2013. (Docs. # 41-2 at 36-37 and 41-10). Plaintiff also claims to have told Webb and Waymire during this meeting that she was approved for 2-3 days per week of leave under the FMLA. (Doc. # 41-2 at 37). Plaintiff says that Waymire “appeared angry about how much coverage [she] had, ” id. at 40, and then fired her three days later. Id.

         Plaintiff's termination notice was approved by both Webb and Waymire and states that Plaintiff had accrued 7.5 points, 3.25 more than were on her Counseling Notice from three days earlier. (Doc. # 41-12). The termination notice contained one unexcused absence and one unexcused tardy that were previously included on Plaintiff's December 13th Final Written Warning but which were left off of the May 2nd Counseling Notice. See (Docs. # 41-6, 41-10, and 41-12). It also contained two additional tardies accrued on November 14, 2013 and April 18, 2014 as well as an unexcused absence accrued on March 26, 2014. (Doc. # 41-12). Plaintiff argues that the March 26, 2014 “unexcused” absence should have been excused because she properly notified Defendants that she would be taking FMLA leave that day. (Doc. # 41-2 at 36).

         Unsurprisingly, Defendants paint a much different picture. While Waymire admits in her deposition to approving the May 2, 2014 Counseling Notice, she denies that any meeting occurred between her, Webb, and Plaintiff on May 2nd. (Doc. # 40-3 at 3). Rather, Defendants assert that the Counseling Notice was generated, but was never delivered to Plaintiff because Ms. Webb determined that Plaintiff had exceeded the point total permitted by the absence policy and was thus subject to termination. (Doc. # 40-3 at 3). Defendants also contend that Plaintiff was fired on May 2nd rather than on May 5th, although the termination notice is undated and there is no documentation showing when Plaintiff was fired. See Id. at 4.

         The parties agree that Plaintiff's March 26, 2014 absence was the determining factor in Plaintiff's dismissal. See (Docs. # 40-1 at 13 and 41 at 11). But for this absence, Plaintiff would not have exceeded the seven-point threshold in AT&T's attendance policy and would not have been subject to termination. See (Doc. # 41-12). Therefore, the dispute largely boils down to whether Defendants properly denied Plaintiff's request for FMLA leave on March 26, 2014. The answer to this question depends on whether Plaintiff followed AT&T's “usual and customary notice and procedural requirements for requesting leave.” 29 C.F.R. § 825.303.

         In 2013 and 2014, AT&T had written policies governing FMLA leave. (Doc. # 40-4 at 1). According to Defendants, these policies were available for employees to view on the company's intranet, specifically the “HR One Stop web portal.” Id. at 2. Defendant describes AT&T's FMLA leave policy as requiring employees to contact the Mobility Centralized Payroll Change Administration (MCPCA) on either the day of the employee's absence or within 48 hours of returning to work after the absence. Id. From there, the MCPCA reports an employee's FMLA leave request to a different bureaucratic unit within AT&T, known as “FMLA Operations” and which is located in San Antonio, Texas. (Docs. # 40-4 at 2 and 41-4). Once the employee submits her request for leave to the MCPCA, she receives a certification form (known as an “FMLA 4”), which must be signed by her physician and returned to the MCPCA. (Doc. # 40-4 at 2). FMLA Operations then sends the employee a form (known as an “FMLA 5”), notifying her of the outcome of the request for leave. Id. at 3. According to Defendants, all decisions regarding leave are made by the MCPCA and FMLA Operations, and not by AT&T Mobility supervisors, who do not have access to employee medical information or certification documentation. Id. at 2. In addition, as part of AT&T's separate attendance policy, an employee who is going to miss a scheduled shift must contact her supervisor at least one hour prior to the start of her shift. (Docs. # 40-2 at 58 and 40-3 at 2).

         Plaintiff contends, however, that the policy listed on the “HR One Stop web portal” is not the only policy relating to FMLA leave at AT&T. Specifically, Plaintiff points to a brochure or handbook AT&T provides to its employees, titled FMLA: A Look at the Basics, which appears to mandate a different procedure for how to apply for FMLA leave. It states in relevant part as follows:

Step 1: You must provide your supervisor at least 30 days advance notice before FMLA leave is to begin if the leave is foreseeable. However, any unforeseeable leaves require you to notify your supervisor within 2-business days of learning the need for a leave or no later than two business days of your return to work. It is recommended that you provide your supervisor with as much detailed information to allow him/her the ability to submit a complete and accurate [FMLA form] to FMLA Operations. . . .
Step 2: Once the FMLA leave request is made, your supervisor will (1) determine your eligibility, (2) notify you of your eligibility, [and] (3) submit [your FMLA form].
Step 3: All FMLA4 forms must be completed by the Health Care Provider and submitted to AT&T FMLA Operations. . . .
Step 4: Once the FMLA4 is received and reviewed by FMLA Operations, you will receive a letter notification (FMLA5) via U.S. Mail advising you of the outcome. . . .

(Doc. # 41-13). There are only two similarities between the purported policies. First is the requirement that the employee's healthcare provider send an FMLA 4 form to FMLA Operations; second is that the employee will be notified of the outcome of her request via an FMLA5 form from FMLA Operations. The similarities end there. The first policy requires the employee to send a request for leave directly to the MCPCA, while the second policy instructs employees to notify their supervisor, who will then contact FMLA operations. According to Suzie Villarreal, who was the Associate Director of FMLA Operations in 2014, all AT&T Mobility RSCs would have had access to both policies. (Doc. # 41-14 at 3, 5). Ms. Villarreal also confirmed that neither of the two policy documents state which one governs in the event of a conflict between the two. id. at 3.

         Plaintiff testified that she followed the second policy each time she requested unforeseeable intermittent FMLA leave. That is, she would call her supervisor, Ms. Webb, to let her know she would be absent, including on March 26th. (Doc. # 41-2 at 10, 35). Plaintiff stated in her deposition that she never contacted the MCPCA to notify AT&T of her intent to use intermittent FMLA leave. Id. at 35. Defendants argue just the opposite. In her affidavit, Ms. Villarreal states that Plaintiff called the MCPCA no fewer than seventeen times to request intermittent FMLA leave between October 1, 2013 and April 26, 2014. (Doc. # 40-4 at 5). Similarly, Ms. Webb disclaimed any responsibility for submitting her subordinates' FMLA applications or approving FMLA absences, as is outlined in FMLA: A Look at the Basics. (Doc. # 41-16 at 16). Both Ms. Villarreal and Ms. Webb aver in their affidavits that Plaintiff did not call the MCPCA on March 26th to report her FMLA absence and thus failed to comply with company policy. See (Docs. # 40-3 at 3 and 40-4 at 5).

         On April 25, 2017-almost three years after she claims she was terminated- Archey filed the instant action against her employer, AT&T, and her indirect supervisor, Amy Waymire in Mason County Circuit Court. (Doc. # 1). The case was properly removed to this Court on May 22, 2017. Id. Plaintiff brought claims for FMLA interference under 29 U.S.C. § 2615(a)(1) (Count I), FMLA retaliation under 29 U.S.C. § 2615(a)(2) (Count II), intentional infliction of emotional distress (Count III), negligent infliction of emotional distress (Count IV), negligence/vicarious liability (Count V), and punitive damages (Count VI). (Doc. # 1-1). On December 26th, 2017, the Court dismissed Counts III, IV, and VI, leaving only Plaintiff's FMLA and negligence claims. (Doc. # 29). Defendants filed their Motion for Summary Judgment on August 10, 2018. (Doc. # 40). Plaintiff filed a Response (Doc. # 41), to which Defendants replied. (Doc. # 42). Thus, the Motion is fully ripe for the Court's review.

         II. ANALYSIS

         A. Standard of Review

         Summary judgment is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). If there is a dispute over facts that might affect the outcome of the case under governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading the court that there are no disputed material facts and that he is entitled to judgment as a matter of law. Id. Once a party files a properly-supported motion for summary judgment by either affirmatively negating an essential element of the non-moving party's claim or establishing an affirmative defense, “the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Id. at 250.

         B. Evidentiary Rulings

         Before addressing the merits of Plaintiff's claims, the Court must address three of ...

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