United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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).
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.
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).
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.
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. (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).
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).
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.
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).
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.
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.
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).
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.
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).
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
Standard of Review
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.
addressing the merits of Plaintiff's claims, the Court
must address three of ...