EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. AT&T CORP.
Filing
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ORDER denying 41 Motion for Summary Judgment and denying 48 Motion for Partial Summary Judgment. Signed by Judge Tanya Walton Pratt on 11/20/2013. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
AT&T CORP.,
Defendant.
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Case No. 1:12-cv-00402-TWP-DKL
ENTRY DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the parties’ cross Motions for Summary Judgment.
Defendant AT&T Corp. (“AT&T”) moves for summary judgment (Dkt. 41) on Plaintiff Equal
Employment Opportunity Commission’s (“EEOC”) claim on behalf of Lupe Cardona (“Ms.
Cardona”), a former AT&T employee. The EEOC moves for partial summary judgment (Dkt.
48) on AT&T’s liability for two causes of action under the American with Disabilities Act
(“ADA”): discriminatory discharge and failure to accommodate. The Court identifies multiple
disputed issues of material fact barring summary judgment for either party. For the reasons set
forth below, both motions are DENIED.
I. BACKGROUND
The following material facts are undisputed. Ms. Cardona began working for AT&T in
1984 as a Customer Sales & Service Specialist (“Specialist”). In 2001, she began working at the
Indianapolis, Indiana call center. Specialists handle customer calls. AT&T values providing
timely responses to customer calls and minimizing waiting periods is a primary customer service
objective.
Accordingly, Specialists’ work schedules are determined so as to handle the
anticipated number of customer calls during a given shift.
AT&T employs a progressive discipline process for absences on the following
progression: verbal warning, written warning, final warning, and then, either termination or
reinstatement of final warning. Attendance infractions more than one year old will not serve as a
basis to progress an employee to the next stage of discipline. AT&T publishes its employee
policies to an internal intranet, but does not maintain an employee handbook of its written
policies.
In 2002, Ms. Cardona was diagnosed with Hepatitis C, a serious virus that attacks the
liver. In October 2009, Ms. Cardona returned to her doctor to receive treatment for Hepatitis C.
In January 2010, a liver biopsy revealed Ms. Cardona’s Hepatitis C had progressed to grade 3,
the second most severe grade. Her doctor recommended that she seek treatment to avoid liver
damage and possible death. Ms. Cardona was specifically diagnosed with Hepatitis C-3a, which
typically takes longer than 24 weeks to treat. The treatment is somewhat complicated, is
temporary and may have severe side effects. On February 2, 2010, Ms. Cardona commenced
treatment of alpha interferon and Ribavirin for Hepatitis C. As a result of her treatment, she
utilized intermittent and then extended leave under the Family Medical Leave Act (“FMLA”)
throughout much of 2010.
On May 17, 2010, Ms. Cardona did not come into work. AT&T called and asked Ms.
Cardona why she was not at work, to which Ms. Cardona replied that she thought it was still the
weekend. A little later that same day, Ms. Cardona called AT&T to report that she needed to
take FMLA leave for the day. In her call, she stated that she was sick, incoherent, and did not
realize it was a Monday. On May 20, 2010, Ms. Cardona received a Final Written Warning for
unsatisfactory attendance as the result of a March 19, 2010 absence when she missed eight hours
of work as a result of her Hepatitis C treatment. The Final Written Warning stated, “Attendance
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is an essential function of your job.
Satisfactory attendance is a condition of your
employment!” Dkt. 43-11 at 2 (emphasis in original).
On June 8, 2010, Manager Shalawn Francois (“Manager Francois”) received an email
informing her that Ms. Cardona had called in to use FMLA because of Ms. Cardona’s Hepatitis
C condition, and Ms. Cardona had inquired about the amount of FMLA leave she had left. Also
on June 8, 2010, Manager Trudy Rowe (“Manager Rowe”) emailed electronic audio files of Ms.
Cardona’s “call-ins” to Manager Francois and Employment Relations Manager (“ERM”) Brenda
Rutledge (“ERM Rutledge”). In response, ERM Rutledge emailed Managers Francois and Rowe
that:
[o]ne thing we want to ensure is that any time [Ms. Cardona] tells us that her
medical condition is keeping her from performing her job, we are directing her to
[AT&T’s Integrated Disability Service Center (“IDSC”)] to request job
accommodations . . . from the voicemails that [Manager Rowe] sent over, [Ms.
Cardona] is indicating that her medication is affecting her.
Dkt. 50-33 at 1–2. ERM Rutledge explained in deposition that she meant that, “if [Ms. Cardona]
stated that she had a medical condition that was keeping her from doing her job, then it was her
right to see if she could request a job accommodation to help her.” Dkt. 50-8 at 5, 25:2–7. ERM
Rutledge did not have a specific accommodation in mind and could not recall whether she
followed up on this subject. Also on June 8, 2010, ERM Rutledge informed AT&T Labor
Specialist Mary Ellen that Ms. Cardona appeared to suffer from a condition, for which she takes
medication, which sometimes affects her job performance. ERM Rutledge described it as a
disability issue, but did not clarify what she meant by disability.
On June 16, 2010, Ms. Cardona had a disciplinary meeting with Manager Terri Basso
(“Manager Basso”), during which she stated that she has Hepatitis C and her medications were
affecting her ability to function at work. Ms. Cardona further stated that a cure might take six
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months. Manager Basso told Ms. Cardona, “[i]f the medication is causing you not to perform
your job you must contact IDSC and speak to a case manager about job accommodations.” Dkt.
50-12 at 2. Ms. Cardona asked what job accommodations would mean, and Manager Basso
replied, “[t]his is what you can discuss with them for job accommodations and I give you time
right now. . . . They may be able to help[,] I’m going to give you the number.” Dkt. 50-12 at 2.
Manager Basso then gave Ms. Cardona time to contact IDSC.
IDSC is operated by Sedgwick Claims Management Services, Inc., and handles Short
Term Disability (“STD”) claims and the job accommodation request process for AT&T. The job
accommodation process includes conferring with employees regarding their requests for
accommodation, evaluating any medical substantiation for such accommodation requests, and
tracking information related to accommodation requests.
The STD policy allows for an
employee to receive wage replacement benefits if he or she is absent from work more than seven
consecutive days and has a certified disability that does not qualify for Worker’s Compensation
coverage. Ms. Cardona called IDSC on June 16, 2010 and spoke with a customer service agent.
Ms. Cardona was advised that as an employee with 25 years of service, she was eligible to
receive up to 52 weeks of STD benefits with full pay. The agent then processed Ms. Cardona
according to AT&T’s STD plan.
Ms. Cardona did not report to work on June 17, 2010, and remained absent until October
25, 2010, under the STD policy and using her remaining FMLA leave. Also on June 17, 2010,
Manager Basso received notification from IDSC that Ms. Cardona had made a claim for STD
benefits. Also on that date, Manager Rowe forwarded the disciplinary minutes from June 16,
2010, to ERM Rutledge along with the note that Ms. Cardona had contacted IDSC and left work
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on FMLA. ERM Rutledge responded that “it would not surprise me if [Ms. Cardona] went into a
disability which may be what she needs.” Dkt. 50-26 at 1.
On July 2, 2010, Ms. Cardona exhausted her FMLA leave available in 2010. Ms.
Cardona’s FLMA leave was statutorily protected and did not count against Ms. Cardona.
However, AT&T did charge her continued absence during the remainder of her STD period as
unexcused or unprotected. At the latest, Ms. Cardona was made aware that her remaining STD
period was chargeable on July 23, 2010. On July 28, 2010, ERM Rutledge stated to Manager
Aretha Smith that “[e]ither way, when she returns, part of her disability will not be protected and
that can progress her through the discipline process.” Dkt. 50-41 at 1.
On July 14, 2010, Ms. Cardona’s application for STD benefits was initially denied for
inadequate medical documentation.
Ms. Cardona timely appealed and her benefits were
eventually approved on September 20, 2010, for the period of June 24, 2010 through October 24,
2010.
An IDSC record from July 19, 2010, indicates that Ms. Cardona had successfully
completed 24 weeks of her treatment, though she had not kept appointments, and the plan was to
finish her 36 weeks of treatment. On July 21, 2010, Ms. Cardona’s physician spoke with IDSC.
He provided details of therapy dates, side effects, and how the side effects had impaired Ms.
Cardona’s ability to do her job. In September 2010, prior to the approval of Ms. Cardona’s STD
benefits, Manager Francois had prepared a “return to work” letter to Ms. Cardona and
recommended she be terminated for her extended absence.
Ms. Cardona completed her Hepatitis C treatment at the end of September 2010 and her
physician released her to return to full-time employment beginning October 25, 2010. On
October 22, 2010, Ms. Cardona confirmed with AT&T that she would be returning to work on
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October, 25, 2010. On October 27, 2010, Ms. Cardona was called into a disciplinary meeting at
which she was terminated for excessive absences.
During Ms. Cardona’s absence from June 17, 2010 through October 22, 2010, AT&T did
not hire anyone to fill-in for Ms. Cardona, nor did it require other employees to work overtime
specifically to make up for time Ms. Cardona failed to work. Any calls that Ms. Cardona would
have answered were handled by other Specialists at the call center.
II. LEGAL STANDARD
Summary judgment is only appropriate by the terms of Rule 56(c) where there exists “no
genuine issue as to any material facts and . . . the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56. This notion applies equally where, as here, opposing parties each
move for summary judgment in their favor pursuant to Rule 56. I.A.E., Inc. v. Shaver, 74 F.3d
768, 774 (7th Cir. 1996). Indeed, the existence of cross-motions for summary judgment does not
necessarily mean that there are no genuine issues of material fact. R.J. Corman Derailment
Serv., Inc. v. Int’l Union of Operating Eng’rs., 335 F.3d 643, 647 (7th Cir. 2003). Rather, the
process of taking the facts in the light most favorable to the nonmovant, first for one side and
then for the other, may reveal that neither side has enough to prevail without a trial. Id. at 648.
“With cross-motions, [the Court’s] review of the record requires that [the Court] construe all
inferences in favor of the party against whom the motion under consideration is made.”
O’Regan v. Arbitration Forums, Ins., 246 F.3d 975, 983 (7th Cir. 2001) (quoting Hendricks–
Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)).
III. DISCUSSION
The EEOC brings this action seeking declaratory and monetary relief for Ms. Cardona, as
well as injunctive relief under the ADA. It alleges AT&T committed a discriminatory discharge
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and failed to accommodate Ms. Cardona. The ADA prohibits employers from discriminating
against disabled employees because of their disability. 42 U.S.C. § 12112(a). In order to make
out a prima facie case of discrimination under the ADA, a plaintiff must show: (1) that she
suffers from a disability as defined in the statutes; (2) that she is qualified to perform the
essential functions of the job in question, with or without reasonable accommodation; and (3)
that she has suffered an adverse employment action as a result of her disability. Jackson v. City
of Chi., 414 F.3d 806, 810 (7th Cir. 2005).
A.
AT&T’s Motion for Summary Judgment
AT&T makes three arguments on summary judgment including, first, that Ms. Cardona
was terminated because of unsatisfactory attendance and not a medical condition. Second, that
Ms. Cardona was not qualified to perform the essential functions of her job, so it was not
required to accommodate her. Third, that even if the ADA protects Ms. Cardona, AT&T was not
required to excuse Ms. Cardona’s failure to perform her job for such an extended period of time.
B.
EEOC’s Motion for Summary Judgment
The EEOC argues on summary judgment that AT&T failed to provide Ms. Cardona a
reasonable accommodation, AT&T has not established that providing Ms. Cardona with
protected time off resulted in an undue hardship, and AT&T intentionally discriminated against
Ms. Cardona when it terminated her.
C.
Material Facts in Dispute
The Court finds that there are at least three genuine issues of material fact that preclude
summary judgment for either party. First, the parties dispute—and the Court cannot determine
as a matter of law—whether regular attendance was an essential function of Ms. Cardona’s
employment. If it was, she would not be a “qualified individual” under the ADA entitled to
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reasonable accommodation. The Seventh Circuit has stated that the “employer, not a court,
determines what functions are essential, and we will not second guess that decision.” Lloyd v.
Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir. 2009). AT&T contends that regular attendance
was an essential function of Ms. Cardona’s position of Specialist, yet the only evidence AT&T
has provided on this fact is the Final Written Warning given to Ms. Cardona and Area Manager
Kimberly Williams’s testimony. It further cites Ms. Cardona’s deposition testimony stating that
she understood attendance is essential. However, the job description for the Specialist position is
silent as to whether attendance is an essential job function. The EEOC also argues that AT&T’s
policy of providing 22 formal “leave of absence” plans belies its contention that regular
attendance is an essential function. Moreover, regular attendance is important in any job, and to
settle this dispute as a matter of law under the ADA is beyond the reach of summary judgment.
The Court finds that a reasonable jury could interpret this evidence to conclude that regular
attendance either was or was not an essential function of Ms. Cardona’s position.
Second, the facts are disputed as to whether Ms. Cardona put AT&T on notice that she
was seeking job accommodations. The ADA's reasonable accommodation requirement applies
only to “known” disabilities. 42 U.S.C. § 12112(b)(5)(A). Thus, “a plaintiff must normally
request an accommodation before liability under the ADA attaches.” Fleishman v. Cont’l Cas.
Co., 698 F.3d 598, 608 (7th Cir. 2012). “Once the employer has been put on notice, the
employer must take reasonable steps to accommodate the employee’s disability.” Cloe v. City of
Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013). The Seventh Circuit has stated that both
employer and employee bear responsibility for determining reasonable accommodations.
Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1285 (7th Cir. 1996). Here, although it is
undisputed that Ms. Cardona never formally requested a “reasonable accommodation” or “job
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accommodation” in those terms, she was told by superiors that job accommodations would be
appropriate and she should contact IDSC. Moreover, ERM Rutledge told Managers Francois
and Rowe that they should direct Ms. Cardona to seek job accommodations. That Ms. Cardona
then contacted IDSC due to her condition raises a genuine issue of material fact barring summary
judgment. A reasonable jury could find that Ms. Cardona’s actions put AT&T on notice that she
required a job accommodation, as well as that AT&T recognized that need.
Third, the parties dispute the length of leave Ms. Cardona requested.
The EEOC
contends that AT&T was on notice that Ms. Cardona’s leave would be no more than 36 weeks—
the length of Hepatitis C treatment. AT&T contends that Ms. Cardona never specified the
amount of time she would be absent and simply stopped coming to work. There is ample
evidence in the record creating a disputed issue of fact, the determination of which is material to
whether such an accommodation—if required—is reasonable. Similarly, it is disputed as to
whether Ms. Cardona’s June 2010 through October 2010 absence created an undue hardship
thereby making it an unreasonable accommodation. These facts must be determined by the trier
of fact.
Because these genuine issues of material fact exist, the Court cannot grant summary
judgment for either party. The claims must proceed to trial by jury.
IV. CONCLUSION
For the reasons stated above, AT&T’s Motion for Summary Judgment (Dkt. 41) is
DENIED. Likewise, the EEOC’s Motion for Partial Summary Judgment (Dkt. 48) is DENIED.
SO ORDERED.
11/20/2013
Date: ______________
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
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DISTRIBUTION:
Carl Felix Miller
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
felix.miller@eeoc.gov
Patrick J. Holman
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
patrick.holman@eeoc.gov
C. Geoffrey Weirich
PAUL HASTINGS, LLP
geoffweirich@paulhastings.com
Kenneth W. Gage
PAUL HASTINGS, LLP
kennethgage@paulhastings.com
N. Katie Manley
PAUL HASTINGS, LLP
katiemanley@paulhastings.com
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