Scarberry v. AT&T Services, Inc.

Filing 37

MEMORANDUM and ORDER Granting Defendant's 18 MOTION for Summary Judgment. Signed by District Judge Avern Cohn. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DANIELLE SCARBERRY,
Plaintiff,
v.
Case No. 16-12881
MICHIGAN BELL TELEPHONE COMPANY and
AT&T SERVICES, INC.,

HON. AVERN COHN

Defendants.

___________________________________/
MEMORANDUM AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (Doc. 18).
I.

INTRODUCTION

This is a retaliation case under the Family and Medical Leave Act of 1993, 29
U.S.C. § 2601 et seq. (FMLA). Plaintiff Danielle Scarberry (Scarberry) is suing
Defendant Michigan Bell Telephone Company (Michigan Bell), her former employer,1
claiming that she was terminated in retaliation for her use of FMLA leave. Michigan Bell
says that there is no genuine issue as to the fact that Scarberry was terminated for
violating the employee code of conduct. Scarberry seeks compensatory and liquidated
damages, an order reinstating her to her former position at Michigan Bell, and an
injunction prohibiting further discrimination or retaliation.

1

Michigan Bell is a wholly owned subsidiary of AT&T Teleholdings, Inc., which is a
wholly owned subsidiary of AT&T, Inc.

Now before the Court is Michigan Bell’s motion for summary judgment (Doc. 18),
to which Scarberry has responded (Doc. 21) and Michigan Bell has replied (Doc. 23).
For the reasons that follow, the motion is GRANTED.
II.

BACKGROUND
A. Employment

On August 25, 2003, Michigan Bell hired Scarberry as a telephonic Sales and
Service Representative in its Saginaw, Michigan customer service and sales call center.
Scarberry’s primary duties included selling AT&T-branded internet, telephone, and
television services, and providing customer service. While employed at Michigan Bell,
Scarberry was a bargaining unit member of and represented by the Communications
Workers of America (CWA).
B. FMLA Leave Requests
1.
The facts relevant to Scarberry’s FMLA claim follow, as gleaned from the parties’
joint statement of facts (Doc. 28) and other parts of the record as noted below.
2.
Between 2004 and 2013, Scarberry requested FMLA leave numerous times to
attend medical appointments and procedures, and to care for her mother. Michigan Bell
approved all of Scarberry’s leave requests.2 According to the amended complaint (Doc.
9), she took 392 hours of FMLA leave in 2010, 386 hours in 2011, 412 hours in 2012,
and 286 hours in 2013.

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Scarberry disputes this. However, the deposition testimony on which she relies shows
that while Michigan Bell did not allow her to leave on one occasion, she did not request
FMLA time for that occasion.
2

In her deposition (Doc. 18-2), Scarberry described several incidents in which her
managers and co-workers criticized her for taking FMLA leave. She said she received
comments from co-workers such as “part-timer” and “must be nice coming in late,
leaving early,” as well as comments from managers such as “because you’re not here,”
suggesting that others would have to take on additional work in her absence. Scarberry
named Sarah Smolarek (Smolarek), Sherri Breternitz-Prebay (Breternitz-Prebay),
Jeanne Kline (Kline), and Laura Tucker (Tucker) among the managers that made the
comments. Scarberry noted that she received co-worker comments about once a week,
but she could not remember the frequency of manager comments, nor the time frame in
which they occurred. Scarberry also said that supervisor Lorraine McMillan (McMillan)
refused to defend her when co-workers made comments, stating that “it’s not my job to
defend you.” Scarberry filed multiple complaints with the Michigan Bell human
resources and equal employment opportunity offices regarding co-worker comments;
the investigations always came back as inconclusive.
Scarberry also testified regarding two incidents related to her use of FMLA leave.
On one occasion, Scarberry was present at a staff meeting in which supervisors were
admonishing employees for attendance problems. When Scarberry brought up the fact
that leave covered by FMLA did not count as poor attendance, McMillan did not address
her comment in front of the whole group; instead, she said “I’ll talk to you about this
later.” Scarberry also could not remember when this meeting occurred.
On another occasion during the summer of 2013, Scarberry met with supervisors
Kline and Tucker to talk about negative co-worker comments and also to inquire about
taking on a leadership position within her service team. Scarberry recalled that one of

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the two said that “I [Scarberry] needed just to mind my own business” with respect to
the co-worker comments, which Scarberry described as “in-office bullying.”
3.
The parties do not dispute that in the eight months preceding her termination,
Scarberry requested and was granted 58 separate FMLA leaves of absence. Not clear
is whether this frequency of leave use is similar to or different from that used in other
time periods during Scarberry’s employment at Michigan Bell. The last time Scarberry
requested FMLA leave was on August 8, 2013, in order to care for her mother. Michigan
Bell’s records state that Scarberry said she had to leave early that day to attend a
doctor’s appointment.
C. “Cramming” Incident
1.
The facts regarding Michigan Bell’s defense follow, as gleaned from the parties’
joint statement of facts (Doc. 28) and other parts of the record as noted below.
2.
On August 9, 2013, an individual called the Michigan Bell Saginaw call center to
complain that Scarberry had changed a customer’s internet service account without
authorization. This practice is known as “cramming”; it is a terminable offense according
to the Michigan Bell employee code of conduct. The complaint came to the attention of
Michigan Bell management. An investigatory meeting was held three days later. (Doc.
18-14, Pg ID 312-14).
Present at the meeting were Scarberry, supervisors Smolarek and BreternitzPrebay, and two CWA officers. The supervisors played back a recording of the call in

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question, which reflected that Scarberry told the individual that the change was
mandatory. In response, the individual told Scarberry several times that she did not
have the authority to approve any changes to the account. Scarberry admits that she
made the statements and actions the recording reflected, that she did make a change to
the customer’s account, and that, contrary to company policy, she did not send a followup email to the individual containing the account number and order number after she
made the change.
At the end of the meeting, Smolarek told Scarberry that she was suspended
pending further investigation. The next week, Michigan Bell changed Scarberry’s
employment status to “suspended pending termination” (a pre-termination status under
the CWA’s collective bargaining agreement) and notified her in writing of the change.
(Doc. 18-14, Pg ID 310). On August 26, 2013, the Union-Management Review Board
held a hearing pursuant to the collective bargaining agreement. CWA representatives
attended along with Michigan Bell supervisors Kline and Rick Plant (Plant). At the
hearing, Kline and Plant related other telephone calls in which Scarberry had changed
customers’ service plans without authorization. The meeting minutes (Doc. 18-14, Pg ID
365-75) reflect that for each incident, Scarberry offered reasons why she thought she
had authorization to make the change. The minutes also stated that a termination
decision would be made by Thursday, August 29, 2013.
On August 28, 2013, Michigan Bell terminated Scarberry. The termination was
memorialized in a letter to CWA officer Angela Miller (Miller). (See Doc. 18-14, Pg ID
378). Miller requested that the CWA file an arbitration claim regarding Scarberry’s

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termination. (See Doc. 18-14, Pg ID 232-34, 376-80).3 The CWA ultimately decided not
to pursue arbitration. (Miller Dep. 29-30). The record does not contain any
documentation from the CWA explaining the reasoning behind its decision.
III.

LEGAL STANDARD

Summary judgment will be granted if the moving party demonstrates that 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). There is no genuine issue of material fact when
“the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). The Court must decide “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In doing so, the
Court “must view the evidence in the light most favorable to the non-moving party.”
Emp’rs Ins. of Wausau v. Petrol. Specialties, Inc., 69 F.3d 98, 101-02 (6th Cir. 1995).
IV.

APPLICABLE LAW
A. FMLA Retaliation

The FMLA states that “[i]t shall be unlawful for any employer to discharge or in
any other manner discriminate against any individual for opposing any practice made
unlawful by this subchapter.” 26 U.S.C. § 2615(a)(2). Absent direct evidence of
retaliation, the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411

3

Notably, Miller’s request for arbitration made no mention of the FMLA or any form of
retaliation.
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U.S. 792 (1973) applies. Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 381 (6th Cir.
2017). Under the framework, a plaintiff must first demonstrate a prima facie case of
FMLA retaliation by establishing four elements: “she availed herself of a protected right
under the FMLA; her employer knew she availed herself of her right under the FMLA;
she suffered an adverse employment action; and there was a causal connection
between the exercise of her rights under the FMLA and the adverse employment
action.” Id. at 381 (citing Edgar v. JAC Prod., Inc., 443 F.3d 501, 508 (6th Cir. 2006)).
If a plaintiff succeeds in making out a prima facie case, the burden then shifts to
the defendant to show that the adverse employment decision was made for a
nondiscriminatory reason. Id. at 379. If the defendant can make that showing, the
burden shifts back to the plaintiff “to show that the reason was pretext.” Id.
Pretext can be established in either of three ways: “by showing that the proffered
reason had no basis in fact, did not motivate the termination, or was insufficient to
warrant the termination.” Id. (quoting Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir.
2012)). “[T]o survive summary judgment a plaintiff need only produce enough evidence .
. . to rebut, but not to disprove, the defendant's proffered rationale.” Griffin v. Finkbeiner,
689 F.3d 584, 593 (6th Cir. 2012) (quoting Blair v. Henry Filters, Inc., 505 F.3d 517, 532
(6th Cir. 2007)) (internal quotation marks omitted). Further, “[t]he three-part test need
not be applied rigidly. Rather, ‘[p]retext is a commonsense inquiry: did the employer fire
the employee for the stated reason or not?’” Blizzard v. Marion Tech. Coll., 698 F.3d
275, 285 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th
Cir. 2009)). “If an employer has an ‘honest belief’ in the nondiscriminatory basis upon
which it has made its employment decision (i.e. the adverse action), then the employee

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will not be able to establish pretext.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 530–31
(6th Cir. 2012).
B. Statute of Limitations
The FMLA statute of limitations is two years. 26 U.S.C. § 2617(c)(1). However, in
the case of a willful violation of § 2615, the statute of limitations extends to three years.
26 U.S.C. § 2617(c)(2). A violation is willful if “the employer intentionally or recklessly
violated the FMLA.” Crugher v. Prelesnik, 761 F.3d 610, 617 (6th Cir. 2014) (quoting
Hoffman v. Prof'l Med Team, 394 F.3d 414, 417 (6th Cir. 2005)) (internal quotation
marks omitted). Scarberry needs to show a willful violation since she filed the present
case on August 8, 2016, more than two years after her August 28, 2013 termination.
V.

ANALYSIS

A. Prima Facie Case
The parties agree that Scarberry has established the first three elements of a
prima facie case of retaliation, since (1) she availed herself of FMLA leave; (2) Michigan
Bell knew that she availed herself of FMLA leave; and (3) Michigan Bell terminated her
employment. Thus, the Court must determine whether there is a genuine issue as to the
causal connection between Scarberry’s use of FMLA leave and Michigan Bell’s
termination decision. “To establish the causal connection . . . a plaintiff must produce
sufficient evidence from which an inference could be drawn that the adverse action
would not have been taken had the plaintiff not [taken the protected action].” Nguyen v.
City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
Scarberry says that the temporal proximity between her request for FMLA leave
and Michigan Bell’s termination decision shows a sufficient causal connection to make

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out a prima facie case. While temporal proximity alone may be enough to support a
prima facie case “[w]here an adverse employment action occurs very close in time after
an employer learns of a protected activity,” Mickey v. Zeidler Tool & Die Co., 516 F.3d
516, 525 (6th Cir. 2008), it does not do so in all circumstances. Nguyen, 229 F.3d at
567 (“[W]hile there may be circumstances where evidence of temporal proximity alone
would be sufficient to support that inference, we do not hesitate to say that they have
not been presented in this case.”).
The Court is not persuaded that the temporal proximity in this case, albeit
extremely close, carries much significance. Since Scarberry requested FMLA leave on a
very regular basis, any adverse employment action would likely fall close in time to at
least one leave period. This is magnified by the fact that a called-in complaint, not a
management decision, was what initiated the investigation into Scarberry’s conduct
history. See Nguyen, 229 F.3d at 567 (“[T]emporal proximity alone was not particularly
compelling, because . . . there was substantial evidence supporting the defendant's
version of the events.”). On the other hand, if Michigan Bell decided to retaliate against
Scarberry’s long-term pattern of FMLA use, as she contends, any adverse action taken
would also fall close in time to some requested leave period.
Scarberry also says that the comments made by Kline, Smolarek, and BreternitzPrebay evidence a causal connection because those supervisors were involved in the
termination decision. These comments also do little to establish a prima facie case
since they were of a general nature, and Scarberry does not say when they were made.
However, despite the weaknesses of both the temporal proximity and the manager
comments, they are enough to establish a prima facie case since “[t]he burden of

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establishing a prima facie case in a retaliation action is not onerous, but one easily met.”
A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013) (quoting
Nguyen, 229 F.3d at 563) (internal quotation marks omitted).
B. Nondiscriminatory Reason
As noted above, Michigan Bell says that Scarberry was terminated because she
changed a customer’s service plan without receiving the customer’s permission.
Because this reason has nothing to do with Scarberry’s FMLA use, Scarberry must
show that it was only a pretext for her termination.
C. Pretext
1.
Scarberry advances several reasons to support her assertion that Michigan Bell’s
provided reason for her discharge was pretextual:
1. The comments such as “because you’re not here…” from supervisors Kline,
Smolarek, and Breternitz-Prebay show discriminatory intent;
2. McMillan’s refusal to address Scarberry’s comment regarding FMLA leave in a
group setting shows discriminatory intent;
3. Supervisors instructed the sales representatives to tell customers that the
account change at issue was mandatory;
4. Other sales representatives told customers the account change was mandatory
without being disciplined;
5. The supervisors who made the termination decision improperly relied on
Scarberry’s past code of conduct violations since those violations had been
removed from Scarberry’s record;

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6. When Scarberry made an unauthorized change to a customer account in the
past, she was only suspended, not terminated;
7. Other sales representatives who committed code of conduct violations were only
suspended, not terminated;
8. When Scarberry requested her employment file from Michigan Bell after she was
terminated, it took two years and a court order before Michigan Bell gave her the
file; this shows that Michigan Bell had something to hide;
9. In a request for arbitration, Miller wrote that she believed Scarberry could have
felt justified in thinking that she had permission to make the change for three
reasons: (1) the recording reflected that the individual asked for additional
information to be emailed to her regarding the change; (2) the individual did not
complain when Scarberry read her the account number and date when a service
technician would come out to make the change; and (3) Scarberry’s immediate
supervisor Tucker did not discipline Scarberry for any of the calls in which she
had used mandatory language or made changes without customer approval.
2.
Since Scarberry admits to changing a customer’s service plan without
authorization, only prongs two and three of the Sixth Circuit pretext test must be
evaluated. As to the second prong, a plaintiff must show that “the sheer weight of the
circumstantial evidence of discrimination makes it ‘more likely than not’ that the
employer's explanation is a pretext, or coverup.” Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (overruled on other grounds by Geiger v. Tower
Automotive, 579 F.3d 614 (6th Cir. 2009)). The third prong "consists of evidence that

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other employees, particularly employees not in the protected class, were not fired even
though they engaged in substantially identical conduct to that which the employer
contends motivated its discharge of the plaintiff." Id. at 1084. “The relative severity of
two actions is not determined solely by whether those actions violated the same
company rule or policy. . . . Instead, employers—and therefore courts—are free to
consider both the actual and potential consequences of the employee's actions."
Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 780 (6th Cir. 2016).
3.
None of Scarberry’s evidence serves to defend her against summary judgment.
The Court addresses each of Scarberry’s assertions as enumerated above:
1. Scarberry has not provided details about her supervisors’ FMLA comments other
than their general nature and that they occurred at some point in the past. Since
Scarberry took frequent FMLA leave, it is not unlikely that her supervisors might
comment in some way about other employees taking on extra work. Other than
the fact that the comments referred to Scarberry’s absences, there is no
evidence to support a finding that there is a genuine issue of material fact as to
whether the supervisors made the comments out of animosity toward Scarberry’s
FMLA use.
2. McMillan’s not addressing Scarberry’s comment in front of a group of co-workers
is even less suggestive of animosity. McMillan did not refuse to address the
comment but simply stated she wanted to address it in a different setting.
(Scarberry Dep. 66).

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3. Even accepting as true that Michigan Bell supervisors told sales representatives
to tell customers that account change was mandatory, there is no evidence that
supervisors instructed sales representatives to actually make a change to a
customer’s account without the customer’s approval. While using mandatory
language to gain customer approval might not be a transparent sales tactic, there
is still a distinction between an effort at approval and proceeding absent
approval. If the change was truly required, Michigan Bell could have simply made
it without instructing employees to make a sales call. Scarberry relies on
testimony from co-worker Veronica Bauer (Bauer) that supervisors told
employees to tell customers the changes were mandatory. (Bauer Dep. 15-17,
20). Bauer also testified, however, that she knew she could not make changes if
despite her most convincing sales pitch, a customer still refused approval. (Id. at
23). Scarberry also testified that she understood it was unacceptable to make a
change without customer approval. (Scarberry Dep. 68-72). Therefore, the
evidence regarding mandatory language does nothing to establish that Scarberry
was not terminated for making an unauthorized change.
4. Scarberry has not offered appropriate comparisons. None of the co-worker
activities she relies on involved making an unauthorized change. It makes no
difference that her co-workers were not disciplined for using mandatory
language, since the consequences of using mandatory language as part of a
sales pitch are less severe than those of making an unauthorized change to a
customer’s account.

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5. Because changing a customer account without authorization is a terminable
offense, Michigan Bell could have terminated Scarberry without considering any
past discipline. And because Michigan Bell considered other incidents of past
unauthorized changes that had not been removed from Scarberry’s record,
whether it was justified in relying on some past disciplinary incidents is
inconsequential.
6. The fact that Scarberry was only suspended for making unauthorized changes in
the past makes no difference, as her suspension letter specifically states that she
could be terminated the next time she engaged in similar conduct. (Doc. 21-14).
Though that letter mentioned “slamming” as the offense, “slamming” and
“cramming” both involve making unauthorized changes to a customer’s account
and are considered together in the employee code of conduct. (Doc. 18-4).
7. Again, the fact that co-workers were disciplined differently for violating the code
of conduct in ways other than making an unauthorized change to a customer
account does nothing to advance Scarberry’s case.
8. Scarberry offers no evidence that the conduct any of the Michigan Bell
employees relevant to this case had anything to do with the fact that Scarberry
experienced difficulty procuring her employee file. Absent a causal link, no
inference in Scarberry’s favor can be drawn.
9. Finally, Miller’s testimony does not show that Michigan Bell was incorrect to
conclude that Scarberry made an unauthorized change. At best, the individual’s
tacit acceptance of the order created an ambiguity that Michigan Bell had to
exercise business judgment to resolve. Courts defer to business judgment to

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avoid “the illegitimate role of acting as a ‘super personnel department,’
overseeing and second guessing employers' business decisions.” Bender v.
Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006); cf. Philbrick v. Holder,
583 F. App'x 478, 487 (6th Cir. 2014) (“If the asserted business judgment is so
‘ridden with error’ that the employer could not have honestly relied on it, pretext
may be shown.”). Notably, CWA president Kevin Miller expressed during the
initial investigatory meeting that he did not believe Scarberry had received
appropriate authorization (Doc. 18-14, Pg ID 313), and the individual called back
to complain that the change had been made without authorization. (Scarberry
Dep. 104-05). As to the lack of previous discipline, Scarberry provides no
evidence that Tucker or any other supervisor knew about the previous times
Scarberry made an unauthorized change to a customer’s account and chose not
to discipline her. Miller testified that “[t]he managers would listen to calls and
coach them” but also that she did not know if the set of calls at issue were
eligible for manager observation. (Miller Dep. 57-59).
No reasonable jury could rely on this evidence to find that Michigan Bell more
likely than not made its termination decision for reasons other than Scarberry’s actions
on August 9, 2013. Scarberry’s statements at the Union-Management Review Board
meeting make clear that she sincerely believed she was not violating the code of
conduct (Doc. 18-14, Pg ID 365-75), but Michigan Bell had the right to terminate her
even if she violated it unintentionally. The Court therefore declines to find that there is a
genuine issue as to the fact that Scarberry’s code of conduct violation was sufficient to
warrant her termination.

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D. Willfulness
Since there is no genuine issue as to the fact that Michigan Bell’s proffered
reason for terminating Scarberry was not a pretext, the Court need not analyze whether
any purported FMLA violation was willful.
VI.

CONCLUSION

In sum, Scarberry has not sufficiently rebutted Michigan Bell’s provided reason
for terminating her. Michigan Bell is therefore entitled to summary judgment.

SO ORDERED.

s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: March 28, 2018
Detroit, Michigan

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