Moore v. Verizon Wireless (VAW) LLC

Filing 38

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 3/31/17. (MRR, )

FILED
2017 Mar-31 AM 11:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MARTHA S. MOORE,
Plaintiff,
v.
VERIZON WIRELESS (VAW), LLC,
Defendant.

)
)
)
)
)
)
)
)
)

Case No.: 5:14-cv-02230-SGC

MEMORANDUM OPINION
This matter is before the court on Defendant Verizon Wireless (VAW), LLC’s motion for
summary judgment. (Doc. 28). In her complaint, Plaintiff Martha Moore asserts four claims: (1)
discriminatory termination on the basis of a disability in violation of the Americans With
Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”); (2) retaliatory termination on the basis
of a disability in violation of the ADA; (3) interference with a right conferred by the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2611 et seq. (the “FMLA”); and (4) retaliatory
termination in violation of the FMLA. (Doc. 1). Plaintiff responded to the motion for summary
judgment (Doc. 33), and Defendant replied. (Doc. 37). This matter is now ripe for review. The
parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc.
17). For the reasons that follow, the court finds Defendant is entitled to summary judgment on
all counts.
I.

RELEVANT FACTS
Plaintiff started working for Defendant in 2007 as a supervisor in the customer service

department. (Doc. 30 at 3). In that role, Plaintiff supervised customer service representatives
who took and answered calls regarding products, billing, and service issues. (Id.). Plaintiff was

responsible for monitoring the calls of her subordinates, coaching them on their handling of
customer concerns, and providing day-to-day operational maintenance. (Id. at 4).
Plaintiff reporteded directly to an associate director. (Id. at 5). Defendant rotates teams
of employees among the associate directors every six months, so during the time Plaintiff
worked for Defendant, she was assigned to several different associate directors. (Id.). The
associate directors report to Director Jeremiah Knight. (Id.).
During her employment with Defendant, Plaintiff applied for and was granted several
leaves of absence pursuant to the FMLA as a result of various health conditions. (Id. at 7).
Plaintiff was granted FMLA leave in June 2008, March 2009, June 2009, August 2010, and
September 2010. (Id.).
Plaintiff also applied for and was granted leave from July 13, 2011, through September 4,
2011. (Id.). Prior to beginning her leave in July 2011, Plaintiff handled a call on June 21, 2011.
(Id.). Defendant alleges Plaintiff “treated the store representative as someone who was trying to
work outside of policy instead of treating her as a peer.” (Id.). Upon her return from FMLA in
September 2011, Plaintiff resumed her role as a supervisor. (Doc. 30 at 7-8). At that time,
Plaintiff was provided with an accommodation allowing her to sit down rather than walking the
floor while supervising her subordinates. (Id. at 8).
On September 8, 2011, Plaintiff handled a customer call. (Id.). Plaintiff used a phrase
which Michelle Campbell, her associate director at the time, considered inappropriate. (Id.).
Campbell issued a written warning on the basis of the June 21, 2011 and September 8, 2011
calls. (Id.). Plaintiff states this warning—at least as it related to the June 2011 incident—had
“expired” by the time of her termination. (Doc. 33 at 12).

2

Plaintiff next took approved FMLA leave for a broken wrist from February 12, through
29, 2012. (Id. at 9). While on leave, Plaintiff called in and spoke every week with David
Brandi, her associate director at the time. (Id.). Plaintiff and Brandi would discuss work
matters, including disciplinary actions and customer-related questions. (Id.). On one occasion,
Moore called into an office meeting and was asked to drop off the call because she was on leave.
(Id.).
When Plaintiff returned from leave on February 29, 2012, she resumed the same position,
responsibilities, and title. (Id. at 10). Upon her return, Plaintiff reported to Associate Director
Raquel Insignares. (Id.). Plaintiff applied for and was granted an accommodation in the form of
a “Dragon” voice automated system so that she would not be required to type. (Id.).
Plaintiff complains of three incidents involving Brandi. First, Brandi failed to return
Plaintiff to the payroll system following her return from leave because he mistakenly believed
Insignares had done so. (Id.). This resulted in the delay of a paycheck Plaintiff should have
received on March 14, 2012. (Id.). Verizon corrected the error immediately once it became
known, and Plaintiff was issued a check five days after her normal payday. (Id.). However,
Plaintiff viewed these events as the result of Brandi’s lack of knowledge about his job
responsibilities. (Id.). Second, Plaintiff complains that sometime in March 2012, co-workers
brought Plaintiff some ice for her wrist. (Id.). While Plaintiff and her coworkers were talking,
Brandi walked by and said, “What’s this? What’s this? Well, she’s just got everybody waiting on
her hand and foot.” Plaintiff viewed this as a slight against her but concedes Brandi may have
been joking. (Doc. 30 at 10). Finally, after Plaintiff was promoted to a supervisor in technical
support on June 10, 2012, she was told that Brandi expressed the opinion that Plaintiff was not

3

qualified for the job during a meeting in which several associate directors were discussing who
would be awarded this position. (Id.).
From September 30, 2012, until her termination, Plaintiff was again assigned to report to
Insignares. (Doc. 30 at 12). Moore does not dispute that she had a positive relationship with
Insignares and requested to work with her. (Id.).
In December 2012, Plaintiff began to suffer migraine headaches. (Doc. 33 at 5). Her
migraines caused sensitivity to light, nausea, and intense pain. (Id.). It was difficult for Plaintiff
to move during a migraine, and sudden bouts of nausea would occasionally require her to leave
the work floor. (Id.). Insignares denies that she and Plaintiff discussed Plaintiff’s headaches in
December 2012. (Doc. 31-8 at 8). Insignares states she was only ever aware that Plaintiff
suffered headaches, not specifically migraines, and did not become aware of the headaches at all
until after January 11, 2013. (Id. at 7-8).
In the morning of January 11, 2013, Plaintiff took a call (the “January 11 call”) from a
customer who was upset because a local store had not provided a “loaner” phone for him to use
while his own phone was not working. (Doc. 30 at 13). The customer requested to speak to a
supervisor, and the call was transferred to Plaintiff. (Id.).

Plaintiff and the customer then

engaged in an argument about whether he would have to pay the shipping cost for Saturday
delivery of a replacement phone. (Id.). The parties dispute whether Plaintiff properly sought
assistance from peers or supervisors during the call. (Doc. 31-2 at 19, 23).
During the January 11 call, both the customer and his wife spoke with Plaintiff. (Audio
Recording, filed January 4, 2016; see Doc. 29). The customer stated he was upset because
without a functional phone, he would lose his job. (Id.). Plaintiff can be heard blaming the
customer for not ordering a replacement in time to get it over the weekend. (Id.). When

4

speaking to the customer’s wife, she stated, “I need to make something clear to you … That’s
why we’re in this position, is based on your husband’s decision.” (Id. at 6 minutes, 53 seconds).
The customer asked to speak to a supervisor above Plaintiff’s level of authority, but
Plaintiff would not transfer him during the call. (Doc. 31-2 at 19). Plaintiff states this is because
no appropriate supervisor was present, but Defendant asserts she could have excused herself and
allowed a peer or an associate director to handle the call; she could also have initiated a “callback” to arrange for the customer to speak with someone else. (Id.; Doc. 37 at 2).
Plaintiff repeatedly insisted to the customer that if he wanted Saturday delivery of a
replacement phone, he would have to pay a $14.99 shipping fee because, although Defendant
provided free standard shipping, the call was taking place on a Friday. To get the phone there on
Saturday would require expedited shipping, which Plaintiff asserted was not within her
discretion to arrange for free. (Doc. 31-2 at 21). Plaintiff maintains she did not have discretion
to grant free overnight shipping for the customer because a company directive prohibited
supervisors from waiving special shipping fees. (Id.).
Two recordings of the January 11 call exist. In the shorter recording, it appears Plaintiff
hung up on the customer because the sound cuts off during the conversation. (Doc. 33 at 6-7).
In a longer version, which was not submitted into evidence, Plaintiff can be heard continuing the
conversation as the customer hands his phone to his wife. (Id. at 7). Plaintiff can be heard
apologizing to the customer for the problems, completing his order, and issuing an expected
delivery date for the replacement phone. (Id.). Plaintiff claims it is clear from the longer
recording that the customer hung up. (Id.). Defendant’s position is that it sounds as though
Plaintiff hung up on the customer in both versions of the call and that Plaintiff was confronted
with the longer version during a meeting with Insignares and conceded it sounds like she hung

5

up on the customer. (Doc. 37 at 2). The parties dispute whether it was the longer recording or
the shorter recording which Insignares played for Plaintiff during their meeting on January 14,
2013. (Doc. 34-1). Plaintiff states she emphasized to Insignares during their meeting that she
did not hang up on the call and that her tone would have been better if she had not been suffering
from a “full-blown” migraine. (Id.). Plaintiff told Insignares, “I barely knew what my own
name was, I was in so much pain.” (Doc. 31-2 at 35). Following the January 11 call, the
customer called again and reported he was unhappy. (Doc. 31-2 at 24). The customer stated in
his follow-up that Plaintiff had hung up on him. (Id.).
Plaintiff had already begun to see a physician about her condition by the time of the
January 11 call. (Doc. 33 at 5) (stating Plaintiff started seeking medical assistance for her
migraines in “late 2012”). Plaintiff had an appointment with her doctor on January 9, 2013, but
had to cancel it because she was told that a work meeting was mandatory. (Id.). Plaintiff alleges
Insignares was aware of the doctor’s appointment and the reason for it and was told she would
have to rearrange it because of the meeting. (Doc. 31-1 at 36). Plaintiff states she was told by
Insignares, “This is a mandatory meeting, and you have to be there.” (Doc. 33 at 5). Plaintiff
alleges the January 11 call would have been handled better if she had been allowed to attend her
doctor’s appointment because her migraines would have been treated. (Id. at 5).
Defendant states, on the basis of Insignares’s testimony, that Plaintiff was not told she
had to attend the meeting on January 9, 2013. (Doc. 37 at 1). Thus, Defendant denies Plaintiff’s
assertion that it prevented her from going to her doctor’s appointment and getting the help she
needed for her migraines. Further, Defendant denies whether going to the doctor would have
changed Plaintiff’s behavior on the January 11 call. (Id. at 2).

6

Defendant uses a Code of Conduct which sets out policies governing employee behavior.
(Doc. 30 at 5). The Code of Conduct includes a standard of conduct that provides, “Verizon
Wireless employees are required to treat customers, fellow employees, and vendors with respect,
dignity, honesty, fairness, and integrity.” (Id. at 6). The Code of Conduct also states, “You are
accountable for your role in the delivery of [fair, honest, and respectful] service.” (Id.). Plaintiff
was familiar with the requirements and understood the rules to prohibit employees from being
rude or disrespectful to customers, speaking to a customer in a disrespectful tone, or ending a call
while a customer is speaking. (Id.). Plaintiff concedes that hanging up on a customer would be
grounds for disciplinary action of some kind. (Id.). Plaintiff concedes she spoke over the
customer at several points during the call, blamed the customer for failing to order a phone
during an earlier call, and refused to provide him with a complaint number even though she
could have. (Doc. 31-2 at 17-18, 19). But Plaintiff states she was “in the thralls of a full-blown
migraine and could barely see” during the call. (Doc. 33 at 6). She states she did not have
discretion to offer the customer free shipping or waive his fees and that no supervisor was
available to ask about waiving the fees during the call. (Id.). Plaintiff states she tried to reach
the supervisor she believed was on duty but did not have the authority to transfer calls to a higher
level. (Id.).
Defendant alleges Plaintiff’s conduct on the January 11 call was a sufficient reason for
her termination. (Doc. 37 at 5) (“Insignares averred that she reviewed the customer call on the
same date of the call and determined Plaintiff’s conduct warranted termination.”). Insignares
testified that Defendant has a “zero tolerance” policy with regard to hanging up on customers.
(Doc. 31-8 at 21). Insignares indicates this policy applies to all levels of employees. (Id.).
Plaintiff has offered evidence of several employees who hung up on customers or were otherwise

7

rude and against whom no “zero tolerance” policy was enforced. (Doc. 31-2 at 30-32, 36-37, 4445).
On January 11, 2013, at 12:43 p.m., Supervisor Luke Crane sent an email to Insignares
informing Insignares that the customer involved in the January 11 call had called again to report
that Plaintiff was rude and hung up on him. (Doc. 31-8 at 58). Crane’s email appears to have
been copied to several people. (Id.). In his email, Crane invites Insignares to meet and discuss
in further detail and he states, “We reviewed . . . Martha’s interaction with the customer and
there is some definite opportunity there.” (Id.).
Defendant states Insignares met with Director Jeremiah Knight and reviewed the January
11 call before Insignares met with Plaintiff about it. (Doc. 30 at 15). Insignares testified her
meeting with Knight likely took place on the same day as the call. (Id.). During their meeting,
Knight agreed with Insignares that the call warranted termination.

(Id.).

Knight advised

Insignares to discuss the call with Human Resources Manager Bridgette Wilder (also referred to
in the record as Bridgette Beasley) before meeting to make a final decision about Plaintiff’s
termination. (Id.). Defendant states Insignares and Wilder met the same day and, after a review
of the call and Plaintiff’s disciplinary history, agreed that Plaintiff’s handling of the call
warranted termination. (Id.).
Plaintiff and Insignares met on January 14, 2013. (Doc. 34-1 at 2). During their meeting,
Insignares informed Plaintiff that she, Insignares, had been told Plaintiff was rude during a
customer call. (Id.). Plaintiff states she was not “intentionally rude” but concedes her “tone
would have been better if I had not been suffering from a migraine.” (Id. at 3). Plaintiff also
concedes she “constantly interrupted” the customer’s wife as his wife was trying to speak. (Doc.

8

31-2 at 23-24). According to Plaintiff, she was concerned some disciplinary action would be
taken, but Insignares said she “didn’t know what would happen.” (Doc. 31-2 at 26).
On Monday, January 14, 2013, at 5:00 p.m., Insignares sent an email to several people
asking them to review the January 11 call and the follow-up call. In this email, Insignares stated:
Martha was on a written BCOC for rude behavior towards a customer about 1 ½
years ago. She is also under medication that may have impacted her judgment
and behavior on this call. I’ve done due diligence and offered her a [Workplace
Arrangement] (pending review from HR/Unplanned Leave Team). With the
recent heightened levels of accountability in addressing released calls, rudeness or
any other behavior that is not aligned with our Code of Conduct, I would
recommend that we make a collaborative decision on this situation. We will need
to consider how we’ve recently handled frontline employees for rudeness and
released calls. In addition, Martha is held to higher standards for being a Leader
of the business.
(Doc. 31-8 at 58).
At 6:24 a.m. on January 15, 2013, Plaintiff sent an email to Insignares in which she
stated, “I just wanted to let you know that although I am here today I still have a very bad
headache and did not rest well last night.” (Doc. 31-8 at 65). Plaintiff continued, “I am still very
upset over our conversation and the pending results, it has me in great emotional upheaval.”
(Id.). Also on January 15, 2013, Plaintiff completed a Workplace Arrangement Request Form.
(Doc. 31-8 at 60).

On the form, she states it is “[d]ifficult to process daily tasks when

experiencing a migraine headache and under medication.” (Id.). She requests the “[a]bility to
have time off to deal w[ith] headaches (up to 2-3 days a month) and any doctors’ appointments
related to these issues.” (Id.). On January 17, 2013, Plaintiff’s doctor signed a form which states
he advised her to stop working on January 14, 2013. (Id. at 62).
In an email dated January 17, 2013, HR Manager Bridgette Wilder wrote to Insignares,
“As a follow-up to our meeting, when can I anticipate the review for separation document.”
(Doc. 31-8 at 72). This email was copied to Knight. Later that day, Insignares responded:
9

“Attached is the NEA HR Admin. Review for Separation form & Written BCOC from
9/19/2011. Let me know if there’s anything else you need.” (Id.). On January 21, 2013, Knight
replied to this thread and requested that the “separation document” be edited down so that it
would be “more crisp.” Knight suggested summarizing emails rather than including them in
their entirety.

(Id. at 71-2).

On January 22, 2013, Knight followed up, asking Wilder,

“Bridgette, do you now have the revisions you need to move forward with this warning? I want
to move quickly with this separation.” (Id. at 71). Wilder responded that she was waiting on
revisions from Insignares, and Insignares appears to have provided a completed copy of the
“separation document.” (Id. at 70-71). Finally, Wilder wrote to two other employees in the
human resources department:
I’m forwarding a review for separation for a supervisor, Martha Moore. She had
previously received a WW for customer rudeness in 2011 that has expired. I
listened to the triggering event call and there were some opportunities that she
could have eliminated the escalation…
Per the AD, the employee acknowledged that this was a bad call.
I need to review the sidebar matter of a recently approved [Workplace
Arrangement] as part of this review. Val is the primary consultant on this one so
[sic] and also manages the [Workplace Arrangement] process so can provide
relevant detail if I am not available. …
Also, note the supervisor has open[ed] an FML claim today.
(Doc. 31-8 at 70).
Plaintiff filed for FMLA leave on January 22, 2013. (Doc. 31-2 at 27). An email from
Wilder indicates Plaintiff’s request for accommodation was “recently approved” as of that same
date. (Doc. 31-8 at 70). Another email indicates that as of January 24, 2013, Plaintiff’s
accommodation request was approved in the form of an anti-glare filter for her computer
monitor. (Doc. 31-8 at 69). Plaintiff stated in an email to Human Resources personnel that she

10

had “opened a claim” for medical leave as of January 22, 2013.

Plaintiff was formally

terminated on January 25, 2013. (Id.).
II.

STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows 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). “Rule 56(c) mandates the entry of judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary
judgment always bears the initial burden of proving the absence of a genuine issue of material
fact. Id. at 323. Once the moving party has met its burden, then the non-moving party must “go
beyond the pleadings” and point to specific facts in the record to show there is a genuine issue
for trial. Id. at 324 (citation omitted). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
“[A] ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.’” Tolan v.
Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam) (quoting Anderson, 477 U.S. at 249). The
court must “examine the evidence in the light most favorable to the non-moving party,” drawing
all inferences in favor of such party. Earl Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000).
Any factual disputes will be resolved in the non-moving party’s favor when sufficient competent
evidence supports the non-moving party’s version of the disputed facts.

See Pace v.

Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes

11

in the non-moving party’s favor when that party’s version of the events is supported by
insufficient evidence.). However, “mere conclusions and unsupported factual allegations are
legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321,
1326 (11th Cir. 2005) (per curiam) (citation omitted).
III.

DISCUSSION
A. Time-Barred Claims
As an initial matter, Defendant argues any FMLA claims based upon conduct predating

November 18, 2012, and any ADA claims based upon conduct predating September 17, 2012,
are untimely. The FMLA’s statutory limitation period is two years. 29 U.S.C. § 2617(c). To
bring a timely claim for discrimination under the ADA, a plaintiff must exhaust administrative
remedies by filing a charge of discrimination with the EEOC within 180 days of the challenged
employment practice. Rizo v. Ala. Dept. Human Res., 228 Fed. App’x 832, 835 (11th Cir. 2007)
(citing Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1241 n.2, 1220 (11th Cir. 2001)).
Plaintiff filed her charge of discrimination on March 16, 2013 (Doc. 1-1), and her complaint was
filed on November 18, 2014 (Doc. 1). Therefore, Defendant is correct in its calculation that any
FMLA claims which accrued prior to November 18, 2012, and any ADA claims based upon
conduct predating September 17, 2012, are barred by the limitations periods.
Plaintiff’s ADA claims clearly rest on her termination, which occurred on January 25,
2013. (Doc. 1 at ¶¶ 96, 97). Plaintiff does not assert any ADA claim based upon conduct which
predated September 17, 2012. Accordingly, Defendant’s motion is due to be denied insofar as it
is based upon a limitations period affecting ADA claims.
As to her FMLA claims, Plaintiff states in Count Three: “Defendant terminated Plaintiff
before she had used the leave to which she was entitled. … Defendant had a history of

12

interfering with Plaintiff’s FMLA rights.”

(Id. at ¶ 98).

In Count Four, Plaintiff states:

“Although Plaintiff was approved for FMLA intermittent leave, she was terminated shortly after
making the FMLA request. … Defendant had a history of retaliating or attempting to retaliate
against Plaintiff for exercising her rights under the FMLA.” (Id. at ¶ 99). To the extent Plaintiff
asserts any FMLA claims based upon conduct that predates November 18, 2012, Defendant’s
motion for summary judgment is due to be granted. However, the court reads these counts as
identifying Plaintiff’s termination on January 25, 2013, as the prohibited conduct about which
she complains. To the extent she refers to conduct preceding her termination, it is to point out
evidence of Defendant’s knowledge, motive, or intent to interfere or retaliate—not actionable
incidents of such conduct. Therefore, the court construes the complaint as asserting FMLA
claims only on the basis of Plaintiff’s termination.

Accordingly, Defendant’s motion for

summary judgment is due to be denied insofar as it is based upon the FMLA’s statute of
limitations.
B. Discriminatory Termination In Violation Of The ADA
Plaintiff alleges Defendant wrongfully terminated her on the basis of her disability and
under the pretext that she committed misconduct during the January 11 call. The ADA provides
that “no [employer] shall discriminate against a qualified individual with a disability because of
the disability of the individual.” 42 U.S.C. § 12112(a). Where there is no direct evidence of an
intent to discriminate on the basis of a disability, the court analyzes the facts under the
McDonnell-Douglas burden-shifting framework. Durley v. APAC, Inc., 236 F.3d 651, 655-57
(11th Cir. 2000); see also McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 (1973). To
establish a prima facie case of disability discrimination, Plaintiff may show that (1) she is
disabled, (2) she was qualified to perform her job, and (3) she was subjected to an adverse

13

employment action because of her disability. Cleveland v. Home Shopping Network, Inc., 369
F.3d 1189, 1193 (11th Cir. 2004).
Defendant argues Plaintiff cannot make a prima facie case of discrimination because she
cannot show she was terminated “because of” her disability—that is, she cannot establish the
causation prong of a prima facie case.1 Cleveland, 369 F.3d at 1193. Regarding the standard of
causation, “whether a mixed motive theory is cognizable under the ADA is still an open question
in this circuit.” Parsons v. First Quality Retail Svcs., LLC, 2012 WL 174829, *8 (M.D. Ga. Jan.
20, 2012).

However, multiple other appeals courts have decided the “but for” causation

framework applies in the ADA context. July v. Bd. of Water and Sewer Com’rs of City of
Mobile, 2012 WL 5966637 (S.D. Ala. Nov. 29, 2012) (collecting authority). Another judge
sitting in this district recently found ADA discrimination claims to be subject to a “but-for”
causation standard on the same reasoning cited by other circuits. Savage v. Secure First Cred.
Union, 107 F. Supp. 3d. 1212, 1216-17 (N.D. Ala. May 8, 2015), rev’d on other grounds, Slip
Op., No. 15-12704 (11th Cir. May 25, 2016). This court finds the reasoning of Savage and the
decisions in other circuits to be persuasive and finds the “but for” causation standard applies to
this claim.
The evidence submitted clearly establishes that the January 11 call—not Plaintiff’s
disability or request for accommodation—was the precipitating event for discussions about
whether to terminate Plaintiff. Plaintiff says her disability was known starting in December
1

Defendant does not appear to dispute whether Plaintiff is able to make a showing under the first
two prongs of the test for a prima facie case. To the extent there is a dispute as to whether
Plaintiff is disabled or was regarded as having a disability, Plaintiff has testified she complained
about her migraines to Insignares starting in December 2012. Further, she has stated migraines
caused symptoms which substantially limited major life activities such as speaking and walking.
Accordingly, she has presented evidence sufficient to create a factual dispute and defeat
summary judgment as to the first two prongs of a prima facie ADA discrimination claim.
14

2012, but no action was taken against her at that time. The flurry of activity leading to her
dismissal clearly began on January 11, 2013, from the moment the customer called to complain.
Further, Knight and Wilder were involved in the discussions about terminating Plaintiff on
January 11, 2013 (before Plaintiff’s discussion with Insignares about her migraine medication
and the possibility of seeking an accommodation). Plaintiff makes no allegation that Knight or
Wilder had any knowledge of Plaintiff’s migraines in advance of their concern regarding the
January 11 call and Knight’s suggestion that it might warrant termination. The undisputed facts
show Plaintiff’s various requests for accommodation were honored over the years. This record
of accommodation cuts against Plaintiff’s assertion that she was terminated because of her
disability, which she acknowledges was not the subject of any formal notice or request for
accommodation until after her termination was being considered.
There is a dispute as to whether Insignares understood Plaintiff’s headaches to be
migraines.

But even assuming Plaintiff’s submissions are sufficient to establish that her

disability was known to Insignares before termination was considered, nothing points to her
disability as a motivating factor. Insignares stated from the outset that, in addition to having
been cited previously for rudeness during a customer call, Plaintiff was “also under medication
that may have impacted her judgment and behavior on this call.” (Doc. 31-8 at 58). On this
basis, Plaintiff was counseled to apply for an accommodation and approval for FMLA leave. At
most, this evidence could allow a jury to infer Defendant’s disability was considered at the same
time as Plaintiff’s conduct on the January 11 call. However, misconduct may serve as a basis for
termination even where the misconduct is caused by a qualifying disability. See, e.g., Miners v.
Cargill Comm., Inc., 113 F.3d 820 (8th Cir. 1997), cert. denied, 522 U.S. 981 (although
alcoholism qualifies as disability under ADA, alcoholics or perceived addicts are not protected

15

from the consequences of alcohol-related misconduct); Burch v. Coca-Cola, Inc., 119 F.3d 305
(5th Cir. 1997), cert. denied, 522 U.S. 1084 (same).
Plaintiff argues her termination was not finalized until after her disability was formally
announced and she sought an accommodation on that basis.

But Plaintiff states she first

discussed her migraines with Insignares in December 2012, and even accepting this description
of events, Defendant took no action against Plaintiff until the customer call which Plaintiff
acknowledges mishandling. (Doc. 33 at 32).2 Nothing following her formal initiation of a leave
and accommodation request suggests she was suddenly scrutinized more closely or that her
request changed the conversation about her potential termination in any way.
Even if Plaintiff’s claim were considered using the more forgiving “mixed-motive”
causation standard, Defendant would be entitled to summary judgment. Plaintiff attempts to
prove causation by showing Defendant deviated from its own standard procedures in terminating
Plaintiff because it considered an outdated infraction. An employer’s deviation from its own
standard procedures may serve as evidence that its stated reason for firing a plaintiff was cover
for discrimination. See Bass v. Bd. of Cty. Com’rs of Orange Cty., Fla., 256 F.3d 1095, 1108
(11th Cir. 2001) (stating that employer’s violation of its own hiring procedure could be evidence
of pretext). But Plaintiff has not shown any policy by which Defendant restricted itself from
considering prior incidents in disciplinary actions. It is true that in an email Bridgette Wilder
referred to one of Plaintiff’s prior infractions as “expired.” At most, this would support the
2

Plaintiff does allege in her response brief that “Insignares knew in December 2012 that Plaintiff
was suffering from migraines and never suggested an accommodation until January 14, 2013.”
(Doc. 33 at 9). The regulations promulgated pursuant to the ADA state that an employer may in
some circumstances need to “initiate an informal, interactive process” with a disabled employee
to establish an appropriate accommodation. 29 C.F.R. § 1630.2(o)(3). Because Plaintiff asserts
an ADA claim for discriminatory termination, not a claim of discrimination for Defendant’s
failure to accommodate her disability, this assertion does not change the analysis of Plaintiff’s
claims. (Doc. 1 at 11-12).
16

assertion that Defendant was not required to terminate Plaintiff according to its own policies.
This is not the same as showing Defendant could not terminate Plaintiff based on a previous
infraction.
Further, Plaintiff urges she was treated differently from identical comparators who were
given warnings rather than being fired subject to a “zero tolerance” policy. The court accepts
Plaintiff’s assertion these comparators are valid, but these examples do not show Plaintiff was
treated worse than any other employee. The evidence shows Plaintiff was given more than one
chance after having been rude to a customer during a call. Thus, it does not appear Plaintiff was
subjected to a “zero tolerance” policy. If she were, she would have presumably been terminated
earlier. The evidence shows Plaintiff was granted accommodations and FMLA leave before and
after previous incidents of rudeness for which she was reprimanded. The court finds Plaintiff has
failed to raise a factual dispute as to whether these examples represent comparators who were
treated better than Plaintiff. Therefore, Plaintiff’s submission of comparator evidence does not
change the court’s finding that she has failed to raise a factual dispute as to whether her disability
was the cause of her termination.
Plaintiff has failed to raise a genuine issue of material fact as to whether her termination
was “because of” her disability. Accordingly, she has failed to establish a required element of
here ADA discrimination claim, and Defendant is entitled to summary judgment.
C. Retaliatory Termination In Violation Of The ADA And The FMLA
The ADA prohibits retaliation against an individual for engaging in protected activity. 42
U.S.C. § 12203(a). To prevail on her ADA retaliation claim, Plaintiff must show that: (1) she
engaged in statutorily protected activity, (2) she suffered an adverse employment action, and (3)
there was a causal link between the two. Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir.

17

2016) (citing Lucas v. W.W. Granger, Inc., 257 F.3d 1249, 1260-61 (11th Cir. 2001)). A request
for a reasonable accommodation is protected activity as contemplated under the first element. Id.
(citing Standard v. A.B.E.L. Svcs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998)). The Supreme
Court has expressly held that ADA retaliation claims are subject to the “but-for” causation
standard. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).
To state a prima facie case of FMLA retaliation, a plaintiff must show (1) she engaged in
statutorily protected conduct, (2) she suffered an adverse employment action, and (3) there is a
causal connection between the two. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th
Cir. 2010). The “but-for” causation standard has not yet been expressly applied by the Eleventh
Circuit to FMLA retaliation cases, but another judge in this district recently applied this standard
in an FMLA retaliation case. Jones v. Allstate Ins. Co., 2016 WL 4259753 *4 (N.D. Ala. Aug.
12, 2016). The undersigned finds the reasoning of Jones to be persuasive and will apply the
same standard to the instant case.
Plaintiff has established the first two elements of a prima facie case by showing she
requested an accommodation for her disability and FMLA leave on January 15, 2013, and was
terminated shortly thereafter.

Regarding causation, the evidence makes clear several

decisionmakers were actively discussing how to handle Plaintiff’s misconduct before she
requested an accommodation or leave and Plaintiff’s employment was in jeopardy. At the end of
the meeting in which Insignares confronted Plaintiff about the January 11 call, Insignares said
she “did not know what would happen” with regard to Plaintiff’s termination. In an email to
Knight and Wilder on January 14, 2013, Insignares noted Plaintiff had previously been
disciplined for rudeness toward a customer and pointed to “recent heightened levels of
accountability in addressing … rudeness or any other behavior that is not aligned with our Code

18

of Conduct.” (Doc. 31-8 at 73). Insignares also noted, “Martha is held to higher standards for
being a Leader of the business.” (Id.). Insignares pointed out that she had encouraged Plaintiff
to seek accommodation for her medical complaints and suggested the group consider how they
had recently treated other incidents of rudeness. This email, sent almost contemporaneously
with the meeting between Plaintiff and Insignares, shows a consideration of all the factors
surrounding Plaintiff’s conduct, including Plaintiff’s claim to have been in so much pain she was
unable to speak. Therefore, it is impossible for Plaintiff to show that her request – either for
accommodation or FMLA leave – was a “but-for” cause of her termination, given that another
cause (her misconduct) was already in play by the time her requests came into existence.
Moreover, even if Plaintiff were not required to meet a “but-for” causation standard, the
requirement that she show something more than temporal proximity in establishing causation is
fatal to her claim. The Eleventh Circuit has held: “[I]n a retaliation case, when an employer
contemplates an adverse employment action before an employee engages in protected activity,
temporal proximity between the protected activity and the subsequent adverse employment
action does not suffice to show causation.” Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir.
2006). To add something beyond temporal proximity, Plaintiff points to comparators who were
supposedly treated better than Plaintiff in that they were not terminated after their first offense.
But this ignores the fact that Plaintiff, too, was afforded more than one chance. She was cited for
misconduct in relation to the June 2011 and September 2011 incidents. As discussed above in
section III.B, Plaintiff attempts to avoid this point by arguing that her earlier citation for these
incidents had “expired” by the January 11 call. It is true the 2011 write-ups were described as
“expired” in an email among the decisionmakers. (Doc. 31-8 at 70). However, this serves only

19

to show that Defendant was not required to terminate her on the basis of the January 11 call; it
does nothing to suggest that Defendant could not terminate her for cause on that basis.
Plaintiff’s arguments amount to an assertion that she is entitled to a judgment because
Defendant considered her request for leave and accommodation after it began to follow through
on the decision to fire her. Several documents make clear Defendant’s disability was known to
the decisionmakers who were affording Plaintiff the proper review before her termination was
finalized, and nothing in the record suggests anyone tried to hide the fact they were aware of
Plaintiff’s circumstances. Plaintiff has provided no authority, and the court has found none, for
the proposition that an employer renders itself unable to terminate an employee for cause by
considering Plaintiff’s circumstances (including requests for leave or accommodation) when
simultaneously contemplating termination on legitimate grounds.
Because Plaintiff’s requests only came about after Plaintiff was already well along in the
process of being terminated for cause following her misconduct on the January 11 call, she
cannot show her requests were the “but-for” cause of her termination, and she cannot rely on
temporal proximity alone in establishing causation by any standard. Because she has raised no
other genuine issue of fact with regard to causation, Defendant is entitled to summary judgment
as to Plaintiff’s retaliation claims.
D. Interference With FMLA Right
The FMLA makes it illegal for any employer to “interfere with, restrain, or deny the
exercise of or the attempt to exercise” any right provided under the statute. 29 U.S.C. §
2615(a)(1).

A plaintiff claiming interference must demonstrate by a preponderance of the

evidence that she was denied a benefit to which she was entitled. Pereda v. Brookdale Senior
Living Communities, Inc., 666 F.3d 1269, 1274 (11th Cir. 2012).

20

Plaintiff asserts this claim on the grounds that she was denied the exercise of her right to
take the leave which was approved prior to her termination. As with Plaintiff’s other claims,
Defendant’s pre-existing and independent reason for terminating her is fatal. “[T]he right to
commence FMLA leave is not absolute, and [] an employee can be dismissed, preventing her
from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the
employee would have been dismissed regardless of any request for FMLA leave.” Krutzig, 602
F.3d at 1236. For the same reasons described above, the court finds Plaintiff is unable to support
her claim for FMLA interference because her termination was precipitated by a legitimate cause
unrelated to her request for leave. Accordingly, Defendant’s motion for summary judgment is
due to be granted as to Plaintiff’s claim of interference with a right conferred by the FMLA.
IV.

CONCLUSION
For the foregoing reasons, the undersigned finds Plaintiff has failed to raise any genuine

issue of material fact. Accordingly, Defendant’s motion for summary judgment (Doc. 28) is due
to be granted as to all claims. A separate order will be entered.
DONE this 31st day of March, 2017.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

21